Query

1. Tes,  it is a valid termination simpliciter.

2. It is a matter of circumstances  that he do not deserve to be regularized even following apex court decision in Uma Devi (3) Vs. State of Karnataka, since he has put up 4  years 9  months public service ( you have not mentioned which organsiation) which  include contractual and part of probation period.

3. For termination of service of a probationer it is not necessary to give reason as the same has already been agreed in the terms and conditions of employment, which your client has accepted the offer.

4. For 3. the nature of termination it is simple but not Termination punitive.

5. The question can be replied by you only since you are fully aware about the facts. However, if the employer has raised the issue of moral turpitude, termination is punitive and before awarding the punishment the allegation was must to be proved in DE  before any employer could jump to the conclusion that it is case of Termination 

6. Before filing a writ in the Supreme Court Tte employee must have exhausted all efficacious remedies available, however, SC is reluctant to admit writ of habeaus corps directly.

7.Cost to be born by petitioner for 6.

1. Yes,  it is a valid termination simpliciter.

2. It is a matter of circumstances  that he do not deserve to be regularized since he has put up 4  years 9  months public service ( you have not mentioned which organsiation) which  include contractual and part of probation period.

3. For termination of service of a probationer it is not necessary to give reason as the same has already been agreed in the terms and conditions of employment, which your client has accepted the offer.

4. For 3. the nature of termination it is simple but not punitive.

5. The question can be replied by you only since you are fully aware about the facts. However, if the employer has raised the issue of moral turpitude, termination is punitive and before awarding the punishment the allegation was must to be proved in DE  before any employer could jump to the conclusion that it is case of Termination 

6. Before filing a writ in the Supreme Court the petitioner/employee must have exhausted all efficacious remedies available, however, SC is reluctant to admit even the writ of habeaus corps directly.

7.Cost to be born by petitioner for 6.

IMHO: 1. Moral turpitude issue negatives Termination simpliciter ? 2.Reason for termination was non requirement. This non requirement clause is assesed by a higher authority which is wanting.This in my opinion render the termination arbitrary? 3. The public servant worked for 4 years 9 moths in same organisation of the Government. why then in the matter of regularizatio post Uma Devi (supra) a matter of circumstances

I agree with you on the point No 1.that moral turpitude issue negatives Termination simpliciter.

2. Again I agree on the reason for termination was non requirement. However, I couldnot follow you on the point  as the "non requirement clause is assesed by a higher authority which is wanting."

Whatsoever, during probation period, the clause of termination is prima facie arbitrary but it depends upon other factors of the circumstances prevailing therein the organisation/ individual employee  

3. In the light of point NO 2 above, the public servant worked for 4 years 9 months in same organisation, even  then for the purpose of regularization of the post, remained a matter of circumstances

I agree with the proper and best explanation given by learned expert Dr. Vashista on the subject, especially his second part of opinion reiterating he previous opinion was more proper.  Hope this solves our learned friend's query (?)

A bit more please:

I couldnot follow you on the point as the "non requirement clause is assesed by a higher authority which is wanting."

It is the board which assesses the staff strength required for the organization and not President who signed the termination letter to axe his own grind. President is below the board. Thus termination is without the approval of the board and thus arbitrary.

Thanks !!!

Dear Advocate,

I am sorry to comment as under :-

First of all you have given scanty facts and it is difficult to understand case in one /two reading.

 

Secondly you have well trie3d to confuse the facts.

 

Based on facts so far disclosed by you I could understand the following :-

 

1.     You have not disclosed whether it is central/state Govt deptt/PSU.  So none can comment what is the appropriate litigating forum  certainly not Apex Court directly.

 

2.     You said “when in counter affidavit the employer raised moral turpitude”.  This implies that already there is litigation.  You have not disclosed where the litigation is going on and at what stage.

 

3.     Uma Devi judgement prima-facie forbids back door entry of casue/daily wagers being regularised.

 

4.     You said that he was already on probation so regardless of Uma Devi Judgement his services were regularised has he attained the status of “Temporary employee” rather than daily/wager/contract. Although there is no provision (atleast not stated by you) for the same.

 

5.     Once on probation, if his performance is not satisfactory then he can be terminated by a simplicitier.  Since you have not elaborated if the central/state Govt deptt/PSU. Nothing more seen to be stated on this aspect.

 

6.     Now you have also intimated that the question of moral turpitude has been raised in the counter, it appears that there was a misconduct reported against him and the organisation has avoided disciplinary action and simply terminated him.  If that is so then termination simpliciter may be illegal. Since you have not elaborated if the central/state Govt deptt/PSU. Nothing more seen to be stated as to what is adjudication forum.

 

7.     You are also referring non-requirement clause.  Such clause can come in force only when there is a lapse of vacancies.  You can check it under RTI.

Sir, lawyering is difficult. A Public servant means a servant under the state as in Art.12. Read this with IPC s.21. So much confusion ??? How can I dispel?

Dear sanjay Kumar ji,

First of all you are required to be through and through to the matter of facts and its relevancy to the dispute.

Then only your legal ability and intellegence will be expected to apply relevant law..

It is my personal opinion and experience about advocacy and I am not quoting authoritatively, some experts may differ with me. None of the advocates can claim to be master of all laws which differ from case to case and legal preposition besides concept.

Best wishes

It is enlightening and well taken, Sir. I will remember you (9891152939) ever with regards.

Public Servant definition is much more beyond Govt servant.

Simpliciter or punitive - Held, non communication of reason deficiencies in work rendered the discharge order on ground of unsuitability arbitrary - Pradip Kumar vs. Union of India, (2012)13SCC182-A