SECOND APPEAL 3435 of 1985 on 7 April 1985

1. Whether Reporters of local papers may be allowed to see thejudgment?judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in the Digest?

Present:Ms.Ambika Luthra, AAG, Punjab,for the appellants.

Ms.Sukhpreet Kaur, Advocate,for the respondent.

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RANJIT SINGH, J.

Punjab State has filed the present Regular SecondAppeal to impugn the judgments passed by the Trial Court as well asby the then Addl.District Judge, Jalandhar.

Respondent-plaintiff Des Raj was initially appointed as aSweeper by the Town Planner Circle, Jalandhar for a period of one Regular Second Appeal No.3435 of 1985 : 2 :

month. This was against a leave vacancy. However, he wassubsequently appointed as Chowkidar in a regular grade on adhocbasis through letter dated 7.1.1983. This appointment was for aperiod of 89 days. It is averred that thereafter his services wereregularised on 7.4.1985 and, thus, he became a regular employee.Suddenly, however, the appellants served a notice dated 27.7.1983to the respondent-plaintiff and terminated his services on 31.8.1983.This termination order was challenged on various grounds.

The appellants filed a written statement pointing out thatthe respondent-plaintiff was appointed only on temporary basis for aperiod of one month and was required to be relieved being appointedagainst a leave vacancy. In the meantime, the regular vacancy ofChowkidar became available and on request made by therespondent-plaintiff, he was appointed as Chowkidar but on adhocbasis. The Controlling Officer, however, held that this appointmentwas made irregularly and in an illegal manner and accordingly theimpugned order was passed simply easing respondent-plaintiff out ofservice. The appellants accordingly would plead that there is nocause of action to file this suit, which is otherwise also notmaintainable.

The trial proceeded on the following issues:- “1.Whether the order for termination of service is illegal, ultravires as alleged by the plaintiff? OPP

2. Whether there is no cause of action? OPD

3. Whether the suit is not maintainable? OPD

4. Whether the suit is not justiciable? OPD

5. Relief.

All the issues were decided in favour of the respondent-plaintiff by the trial Court. The State accordingly filed an appealagainst the same. The first Appellate Court has also upheld the orderof the trial Court. The State has accordingly filed this Regular SecondAppeal.

The only submission made by the counsel for theappellants is that respondent-plaintiff was not a regular employeeand the whole basis of passing the order in this regard by the firstAppellate Court would be against the facts averred on record.Reference can be made to the appointment letter Ex.P3 issued on7.4.1983, which was construed to be an order regularising theservices of the respondent-plaintiff. This letter clearly mentions thatthe appointment was temporary one. Accordingly, the first AppellateCourt had no reason or material to hold that the services of therespondent-plaintiff were regular or were regularised.

Respondent-plaintiff was a temporary employee and itwas also noticed that his appointment was not made in accordancewith law and, thus, was not legal. Finding the appointment to beillegal, an innocuous order relieving the respondent-plaintiff fromservice was made. The submission that respondent-plaintiff was aregular employee and to terminate his service, there was need ofholding an enquiry after issuing charge sheet, thus, can not arise inthis case. It is not a case of punishment.

The impugned order relieving the respondent-plaintiff

from service has been perused by me and it is non-stigmatic orderand cannot be termed as punitive. For a temporary employee, therewas no requirement to adopt any other procedure than that has been done in this case. It is also noticeable that the very appointmentof the respondent-plaintiff was found to be illegal and as such actionwas taken to simply relieve the appellant. The motive for passing theorder was that the appointment was illegal for which there wasneither any need nor a requirement of holding an enquiry. The viewtaken by the trial Court as well as by the first Appellate Court, thus,cannot be sustained. Substantial question of law in regard to the rightof the appellants to pass a non-stigmatic order in terms of theconditions of appointment, thus, would arise.

The Regular Second Appeal is accordingly allowed. Thejudgments under appeal are set-aside. Fresh decree-sheet beprepared by the Registry of this court.

May 10, 2010ramesh

( RANJIT SINGH )JUDGE