# Vinod Kumar Sharma v. The State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-20
- **Case number:** Special Appeal (D) No. 97 of 2014
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-sharma-v-the-state-of-u-p-and-ors-42769
- **Pages:** 7

## Headnote

of Services)Rules 1975-Rule3(i)-Petition
Appellant working as orderly-after serving
charge sheet-holding disciplinary-authority
by excercising power under Rule 1975passed
termination
order-order
being
punitive in nature-held service could not be
dispense with invoking provisions of Rule
1975-order impugned termination as well as
judgment quashed-with 50% back wages.

Held: Para-16-
In these circumstances and for the reasons
which we have indicated above, we are of
the view that the termination of services of
the appellant could not have been effected
by invoking the provisions of the 1975
Rules.
This
was
not
a
termination
simplicitor
but
a
termination
for
misconduct, preceded by a full fledged
departmental inquiry based on a charge of
misconduct which was found to
be
established in the departmental inquiry. In
the circumstances, the impugned order
dated 3 April 2002 which was challenged
before the learned Single Judge was
unsustainable. The learned Single Judge
has, in our view, completely failed to take
cognizance of the governing position of
law as laid down in the judgements of the
Supreme Court which indicate that though
the
appellant
was
a
temporary
government servant and it was open to the
competent authority to dispense with the
services of the appellant simplicitor under
Rule 3 (1) of the 1975 Rules, the
termination order dated 3 April 2002 is on
a charge of misconduct and the invocation
of the 1975 Rules was clearly unlawful.
The order of termination dated 3 April
2002 is punitive in nature.

Case Law discussed:
(1974)2 SCC 831; (1991) 1 SCC 691; 1999
SCC (L&S) 439; (2002) 1 SCC 520.

## Text

256 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The grant was made after the
citation was published in the news papers
twice. The publication was made in a
widely circulated news papers in the area
where
the
applicant
resides.
The
publication of the citation in the news
paper of the area is not disputed.
Therefore, citation to the public in
newspaper would be a citation to the
applicant as well.

9. In view of above, in the normal
case, once citation is published through
news papers in the area, every person
would be deemed to have knowledge of
the proceedings unless contrary is shown.
The applicant has not established by any
material that he had not come across such
a citation or that he actually had no
knowledge even of the publication of the
citation. The avernments to this effect are
completely missing from the affidavit
filed in support of the application. The
only submission in this regard is that the
applicant is an illiterate person.

10. In this view of the matter, I am
of the view that the court had rightly
proceeded with the matter after the
citation was published in the news papers
and the applicant had failed to participate
in the proceedings.

11. The Supreme Court in the case
of Anil Behari Ghosh (Supra) has ruled
that where the proceedings are defective
in substance, it would be a case for
revocation of the grant of probate. The
Supreme Court further explaining the
phrase 'defective in substance' held that it
means that the defect be of such a
character as to substantially affect the
correctness of the proceedings. The
judicial power vested in the court to
revoke the grant is not absolute. The
power to revoke is exercised where the
court prima facie belives that it is
necessary to have the Will proved afresh.
On the other hand, the court may refuse to
grant annulment in cases where there is
no likelihood of proof being offered that
the Will admitted to probate or Letters of
Administration was either not genuine or
had not been validly executed.

12. In the present case, the court
while
granting
the
Letters
of
Administration with the Will annexed on
the basis of the evidence of one of the
marginal witnesses has found the Will to
be duly proved. The applicant in the
application is not contending that no such
Will was ever executed by the deceased
or that if such a Will exists it is a forged,
fictitious or a fraudulent document rather
the contents of the application would
reveal that the execution of the Will is
admitted. There is not even denial to the
attestation of the Will by the marginal
witnesses who has proved the same.

13. In such circumstances, when the
execution of the Will has not been
doubted by the applicant by making any
averment to this effect and the application
merely for the reason that he was not
named in the proceedings and was not
served with a citation individually, I do
not consider it to be a fit case where the
grant should be revoked.

14. In view of above, the petition is
dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
1 All] Vinod Kumar Sharma Vs. The State of U.P. and Ors.
257
THE HON'BLE DR. DEVENDRA KUMAR
ARORA, J.

Special Appeal (D) No. 97 of 2014

Vinod Kumar Sharma..... Appellant
Versus
The State of U.P. and Ors. Respondents

Counsel for the Petitioner:
Sri Krishna Kumar Singh

Counsel for the Respondents:
C.S.C.

U.P. Temporary Govt. Servant(Termination
of Services)Rules 1975-Rule3(i)-Petition
Appellant working as orderly-after serving
charge sheet-holding disciplinary-authority
by excercising power under Rule 1975passed
termination
order-order
being
punitive in nature-held service could not be
dispense with invoking provisions of Rule
1975-order impugned termination as well as
judgment quashed-with 50% back wages.

Held: Para-16-
In these circumstances and for the reasons
which we have indicated above, we are of
the view that the termination of services of
the appellant could not have been effected
by invoking the provisions of the 1975
Rules.
This
was
not
a
termination
simplicitor
but
a
termination
for
misconduct, preceded by a full fledged
departmental inquiry based on a charge of
misconduct which was found to
be
established in the departmental inquiry. In
the circumstances, the impugned order
dated 3 April 2002 which was challenged
before the learned Single Judge was
unsustainable. The learned Single Judge
has, in our view, completely failed to take
cognizance of the governing position of
law as laid down in the judgements of the
Supreme Court which indicate that though
the
appellant
was
a
temporary
government servant and it was open to the
competent authority to dispense with the
services of the appellant simplicitor under
Rule 3 (1) of the 1975 Rules, the
termination order dated 3 April 2002 is on
a charge of misconduct and the invocation
of the 1975 Rules was clearly unlawful.
The order of termination dated 3 April
2002 is punitive in nature.

Case Law discussed:
(1974)2 SCC 831; (1991) 1 SCC 691; 1999
SCC (L&S) 439; (2002) 1 SCC 520.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. This special appeal is directed
against the judgement of a learned Single
Judge dated 10 April 2013 by which a
petition under Article 226 of the Constitution
filed by the appellant to challenge an order of
termination from service has been dismissed.

2. The appellant was appointed by the
second respondent in the Directorate of
Prosecution as an Orderly on a temporary
basis by a letter dated 24 February 1987. A
charge sheet was issued to the appellant on
29 January 2002 stating that on 18 December
2001, he was assigned duties to the Camp
Office of the Director General. It was alleged
that the appellant had willfully not complied
with the administrative direction as a result
of which he had displayed gross indiscipline
and breach of directions. A memo setting out
inter alia the direction dated 18 December
2001,
the
finding
contained
in
the
preliminary inquiry dated 24 December 2001
and a list of witnesses by which the charge
was to be established was furnished together
with the charge sheet. A regular departmental
inquiry was convened. On 20 March 2002,
the Inquiry Officer submitted his report to
the Director General. The inquiry report
contained a detailed analysis of the evidence
which was produced during the course of
inquiry. The Inquiry Officer concluded that
the appellant had willfully not remained
present when he was directed to report to the
258 INDIAN LAW REPORTS ALLAHABAD SERIES
residence-cum-camp office of the Director
General on 20 December 2001. The
appellant was held to be guilty of
misconduct. Thereafter, upon the receipt of
the inquiry report, the second respondent
passed an order dated 3 April 2002
purportedly in exercise of the powers
conferred by The Uttar Pradesh Temporary
Government
Servants
(Termination
of
Services) Rules, 1975, terminating the
services of the appellant on the ground that in
view of his indiscipline and the breach of
administrative directions, the services of the
appellant were no longer required.

3. The appellant filed a writ petition
under Article 226 of the Constitution. Before
the learned Single Judge, the specific
contention which was raised by the appellant
was that the termination was penal in nature
on the ground of indiscipline and hence an
order passed under Rule 3 (1) of the 1975
Rules was unlawful. The appellant submitted
that the Supreme Court, while considering
the provisions of Article 311 of the
Constitution has held that the safeguards
available to permanent government servants
thereunder are equally available to temporary
government servants.

4. The learned Single Judge dismissed
the petition holding that the order which was
passed by the competent authority was not
cryptic but stated that the services of the
appellant were being terminated on the
ground of indiscipline and non compliance of
the order of the higher authorities. The
learned Single Judge held as follows:

"In the present case, the order is not
cryptic. The order has stated that his services
are being terminated on the ground of
indiscipline and non-compliance of the
orders of higher authorities. It need not be
reminded that petitioner's services were not
regularized. His services were dispensed
with under Uttar Pradesh Temporary
Government
Servants
(Termination
of
Services) Rules, 1975. Still an inquiry was
conducted and a show cause notice in the
form of charge-sheet along with allegations
was issued to him in which charges were
specifically mentioned. Even the evidence
which was to be used against him has been
annexed as a separate charge sheet. The
officials whose evidence is to be used against
him have also been enumerated. Petitioner
has submitted his reply. Along with reply he
has also given the names of the persons
whom he wanted to use as his witness. The
inquiry has been completed thoroughly. In
such a situation it can not be said that the
petitioner could not know as to on what
grounds his services have been terminated.
The order is a formal communication but
prior to it a detailed inquiry was held and the
petitioner has fully participated in the
inquiry, hence the judgements relied upon by
the petitioner are not applicable in this case."

5. The learned counsel appearing on
behalf of the appellant submits that in the
present, the order of termination is penal and
stigmatic since it was preceded by a full
fledged disciplinary inquiry. A charge sheet
was issued, an inquiry was convened,
evidence was adduced in the inquiry and a
finding of misconduct was arrived at by the
Inquiry Officer in his report, yet the
competent authority has purported to exercise
powers under the 1975 Rules under which the
services of a temporary employee can be
dispensed with by a notice simplicitor. In the
present case, it is urged that the termination is
clearly unlawful because the foundation of the
order is an allegation of misconduct and
hence, the order was of penal consequences.

6. On the other hand, learned
counsel appearing on behalf of the
1 All] Vinod Kumar Sharma Vs. The State of U.P. and Ors.
259
respondents has supported the order of the
learned Single Judge.

7. Rule 3 (1) of The Uttar Pradesh
Temporary
Government
Servants
(Termination of Service) Rules, 1975
provides as follows:

"3(1). Notwithstanding anything to
the contrary in any existing rules or orders
on the subject, the services of a
Government servant in temporary service
shall be liable to terminate at any time by
notice in writing given either by the
Government servant to the appointing
authority or by the appointing authority to
the Government servant."

8. Rule 3(1) contemplates that the
services of a temporary government
servant can be terminated at any time by a
notice in writing. The period of notice
under sub-rule (2) of Rule 3 is to be one
month.

9. The law on the subject has now
been settled by a series of judgements of
the Supreme Court. In Samsher Singh vs.
State of Punjab and Anr1, a Bench of
seven learned Judges of the Supreme
Court held, while dealing with the case of
a probationer that the authority may, in
certain cases, be of the view that the
conduct of the probationer would be such
as to result in a dismissal on an inquiry
but the authority may not hold an inquiry
and simply discharge the probationer in
order to enable him to pursue his vocation
elsewhere. However, if on the other hand
the probationer is faced with an inquiry
on a charge of misconduct or inefficiency
or corruption, and if his services are
terminated
without
following
the
provisions of Article 311(2) of the
Constitution, the probationer can claim
protection. The mere fact that an inquiry
was held is not always conclusive. What
is decisive is whether the order is really
by way of punishment. For instance, an
inquiry to assess the suitability of a
probationer for being confirmed in service
can be held and if the authority comes to
the conclusion that the probationer is not
suitable for being confirmed, an order of
termination would not be regarded as
punitive in nature. These principles were
applied by the Supreme Court in the
context of a termination of an ad hoc or a
temporary government servant in State of
Uttar Pradesh and Anr. vs. Kaushal
Kishore Shukla2. The Supreme Court
held as follows.

"A temporary government servant
has no right to hold the post, his services
are liable to be terminated by giving him
one month's notice without assigning any
reason either under the terms of the
contract providing for such termination or
under
the
relevant
statutory
rules
regulating the terms and conditions of
temporary
government
servants.
A
temporary
government
servant
can,
however, be dismissed from service by
way of punishment. Whenever, the
competent authority is satisfied that the
work and conduct of a temporary servant
is not satisfactory or that his continuance
in service is not in public interest on
account of his unsuitability, misconduct
or inefficiency, it may either terminate his
services in accordance with the terms and
conditions of the service or the relevant
rules or it may decide to take punitive
action against the temporary government
servant. If it decides to take punitive
action it may hold a formal inquiry by
framing charges and giving opportunity to
the government servant in accordance
with the provisions of Article 311 of the
260 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution.
Since,
a
temporary
government servant is also entitled to the
protection of Article 311(2) in the same
manner as a permanent government
servant, very often, the question arises
whether an order of termination is in
accordance with the contract of service
and
relevant
rules
regulating
the
temporary employment or it is by way of
punishment. It is now well settled that the
form of the order is not conclusive and it
is open to the court to determine the true
nature of the order..."

10. In a decision in Radhey Shyam
Gupta vs. U.P. State Agro Industries
Corporation Ltd. and Anr3, the Supreme
Court held that the termination of the
services of a temporary servant on the
basis of an assessment that his work is not
satisfactory will not be punitive since the
assessment that the work is merely the
motive and not the foundation of the
order. The situation would be different
where the termination is preceded by an
inquiry and where evidence is led and a
finding of misconduct of a definitive
nature is arrived at behind the back. The
Supreme Court held as follows:

"But in cases where the termination
is preceded by an enquiry and evidence is
received and findings as to misconduct of
a definitive nature are arrived at behind
the back of the officer and where on the
basis of such a report, the termination
order is issued, such an order will be
violative of the principles of natural
justice inasmuch as the purpose of the
enquiry is to find out the truth of the
allegations with a view to punish him and
not merely to gather evidence for a future
regular departmental enquiry. In such
cases, the termination is to be treated as
based or founded upon misconduct and
will be punitive. These are obviously not
cases where the employer feels that there
is a mere cloud against the employee's
conduct but are cases where the employer
has virtually accepted the definitive and
clear findings of the enquiry officer,
which are all arrived at behind the back of
the employee - even though such
acceptance of findings is not recorded in
the order of termination. That is why the
misconduct is the foundation and not
merely the motive in such cases."

11. Consequently, where an inquiry
has been held not for the purposes of
establishing a misconduct but for the
purposes of assessing the suitability of a
temporary government servant, an order of
termination simplicitor would not be
contrary to law. In many cases, the
employer may hold a preliminary inquiry
and thereafter terminate the services of a
temporary government servant. The object
of a preliminary inquiry is not to establish
misconduct and the termination would not
be regarded as punitive in nature.

12. These principles were revisited
in Pavanendra Narayan Verma vs. Sanjay
Gandhi PGI of Medical Sciences4. The
Supreme Court formulated the test to
determine whether an order of termination
is punitive as follows:

"One of the judicially evolved tests
to determine whether in substance an
order of termination is punitive is to see
whether prior to the termination there was
(a) a full-scale formal enquiry (b) into
allegations involving moral turpitude or
misconduct which (c) culminated in a
finding of guilt. If all three factors are
present the termination has been held to
be punitive irrespective of the form of the
termination order. Conversely if any one
1 All] Vinod Kumar Sharma Vs. The State of U.P. and Ors.
261
of the three factors is missing, the
termination has been upheld."

13. The Supreme Court reiterated that
an employer is entitled to satisfy itself of the
competence of a probationer to be confirmed
in service and for this purpose satisfy itself
fairly as to the truth of the allegations that
may have been made about the employee. In
that case, it was held that charge sheet merely
details the allegations to enable the employer
to deal with them effectively and the report
of the inquiry had found nothing than the
inability to meet the requirements of the post.
Hence, none of the three factors for holding
the termination in sum and substance to be
punitive were found to be present.

14. In the present case, the facts are
not in dispute. A regular departmental
inquiry was held against the appellant. A
charge sheet dated 29 January 2002 was
issued. This was not a preliminary inquiry
since admittedly a preliminary inquiry
had already been held in this case on 24
December 2001. A Specific charge of
misconduct was leveled against the
appellant. The charge sheet contained
inter alia a list of witnesses. The inquiry
was thereafter pursued in the course of
which evidence was received. The Inquiry
Officer submitted his report dated 20
March 2002 to the Director General
holding that the charge of misconduct had
been established. There is a specific
finding of misconduct in the report of the
Inquiry Officer. An order of termination
dated 3 April 2002 has been passed
invoking the provisions of the 1975
Rules. This was clearly not a termination
simplicitor within the meaning of rule 3
(1) of the 1975 Rules.

15. As a matter of fact, it must be
mentioned here that even the impugned
order of the learned Single Judge
proceeds on the basis that an inquiry was
conducted, preceded by a charge sheet,
evidence was received and a finding of
misconduct was arrived at.

16. In these circumstances and for the
reasons which we have indicated above, we
are of the view that the termination of services
of the appellant could not have been effected
by invoking the provisions of the 1975 Rules.
This was not a termination simplicitor but a
termination for misconduct, preceded by a full
fledged departmental inquiry based on a
charge of misconduct which was found to be
established in the departmental inquiry. In the
circumstances, the impugned order dated 3
April 2002 which was challenged before the
learned Single Judge was unsustainable. The
learned Single Judge has, in our view,
completely failed to take cognizance of the
governing position of law as laid down in the
judgements of the Supreme Court which
indicate that though the appellant was a
temporary government servant and it was
open to the competent authority to dispense
with the services of the appellant simplicitor
under Rule 3 (1) of the 1975 Rules, the
termination order dated 3 April 2002 is on a
charge of misconduct and the invocation of
the 1975 Rules was clearly unlawful. The
order of termination dated 3 April 2002 is
punitive in nature.

17. We are, accordingly, of the view
that the order of the learned Single Judge
is unsustainable and the dismissal of the
appellant was improper. The petition
would have to be, accordingly, allowed by
setting aside the order of termination
dated 3 April 2002.

18. On the question of back wages,
it is now well settled that there is an
element of discretion which vests in the
262 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in regard to the quantum of back
wages that must follow the setting aside
of an order of termination.

19. Having due regard to the facts and
circumstances of the case, we order while
setting aside the order of the learned Single
Judge dated 10 April 2013 and the order of
termination dated 3 April 2002 that the
appellant would be entitled to his back
wages which are quantified at 50%.

20. The special appeal is, accordingly,
allowed in these terms. There shall be no
order as to costs.

C.M. Application No. 18727 of 2014

Case
:-
SPECIAL
APPEAL
DEFECTIVE No. - 97 of 2014

***

Hon'ble Dr. Dhananjaya Yeshwant
Chandrachud,Chief Justice

Hon'ble
Dr.
Devendra
Kumar
Arora,J.

This application seeks condonation
of delay in filing the special appeal.

Since sufficient cause has been
shown in the affidavit filed in support of
the delay condonation application, the
delay in filing the appeal is condoned.

The application stands, accordingly,
disposed of.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.02.2014

BEFORE
THE HON'BLE DHARNIDHAR JHA, J.

Crl. Misc. Bail Cancellation Application No.
336 of 2014

Ram Pratap Singh..... Petitioner
Versus
State of U.P. and Anr...... Respondents

Counsel for the Petitioner:
--

Counsel for the Respondents:
A.G.A., Sri Ashish Kumar Nagvanshi

Criminal Law-Cancellation of bail-scope and
circumstances-explained-where bail order
passed deviated from settled principle of
law-tempering evidences and terrorizing
witness-in
absence
of
material-no
cancellation order to be passed-applicant
may approach before Session Judge make
out case within four corner of contingencies
given by Apex Court in Sanjay Gandhi Caseapplication rejected.

Held: Para-12
The above being the position of law, which
holds good till date, in my considered view,
the petitioner ought to have approached
the trial court by filing an appropriate
petition before it and to have followed the
procedure set down by the Supreme Court
in the case of Sanjay Gandhi. The present is
not the forum for considering the bail
cancellation application as I have already
noted that no fact or finding has been
brought into my notice, which could be
making out a case of deviation from settled
principles of law and thereby causing a
prejudice
to
the
prosecution
due
to
granting bail that this Court should recall or
cancel the order which is impugned herein.
The allegation of tampering evidence and
terrorizing the witnesses will require the
other side to be heard appropriately by the
court below and the court below may also
require the evidence to be adduced before it
in the light of Sanjay Gandhi. In that view,
this petition appears of no merit as also not
maintainable before this Court.

Case Law discussed:
AIR Supreme Court 961.

(Delivered by Hon'ble Dharnidhar Jha, J.)