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Application No. 104 of 1972, decided on 11^th August 1972.

Temporary employee-Cannot be removed without observing formalities laid down in rules-Railway employee case-Appointment letter envi saging that service was liable to termination if work not found satisfactory without any notice or pay in lieu thereof and employee would not be entitled to any notice or pay in lieu thereof In case services were terminated for misconduct or inefficiency---Rules requiring that when on employee completes 12 months' service and probationary period was over normal procedure shall be ebsered in case of discharge as a disciplinary measure-Applicant having served for 21 months removal from service on account of miscon duct without show-cause notice on plea of contents of appointment order-No estoppel against statute---Contents of appointment letter, held, not relevant as against provisions of rules-Case, held, not covered by Note (I)(a) under r. 4;4 ;i)(e) of Railway Servants (Effi ciency and Discipline) Rules, 161 bur governed by r. 2(viii)of P. W. R. Personnel Manual, Advance Chapter No. S (Rules Regu lations Discipline and Rights of Appeal of Non-Gazetted Railway Servants)-P. W. R. Personnel Manul, advance Chapter No. 3, r. 2(viii) read with Railway Servants (Efficieney and Discipline) Rules, 1961, r. 4(4), Vote (i)(a).

P L D 1965 S C 20 rel.

Hayat Pasha, General Secretary, W. P. Railway Workers' Union for Applicant.

-The petitioner was appointed as a B' Grade Nurse on 5-9-70 temporarily at a monthly salary of Rs. 175. On 24-6-72 the respondent ho. I served a notice of termination from service upon the petitioner without any show cause notice. The petitioner therefore prays that the order of termination of her services is illegal and without any lawful authority. The respondent contested the application. It is averred that the appointment of the applicant was purely temporarily as a stopgap arrangement. At the time of her appointment she had accepted the terms and conditions that her appointment and her services will be liable to be terminated without any notice or pay in lieu thereof if her work is not found satisfactory. The services of the applicant have been correctly terminated.

The contention of the respondent is that she had agreed as per agreement that her services would be terminated without any notice and in this contention relies on clause e' of the appointment order of the petitioner, which lays down as under :-

"(e) that you will not be entitled to any notice or pay in lieu thereof in case your services are terminated for misconduct or inefficiency."

It is therefore contended that her services could be terminated without any notice and in this behalf a reliance has been placed on Note 4(4). 1 (a) of the Railway Servants (Efficiency and Discipline) Rules, 1961. Iue Rule referred to by the respondent is not attracted in the present case because what it means is that the discharge of a person unOer Note (i) (a) to (i) (e) o Rule 4 (4) does not amount to removal or dismissal. This rule does not empower the Railway Administration to dispense with the services of an employee. It is admitted feature of the case that the petitioner has served the Railway Administration for about 21 months when the notice for termination was served upon her. Rule 2 (viii) of Advance Chapter No. 5 (Rules Regula tion Discipline and Rights of Appeal of Non-Gazetted Railway Servants) provides that :-

"where an employee has completed 12 months' service, and the probationary period is therefore over, the normal procedure prescribed in these rules shall bee followed if it is desired to discharge him as a disciplinary measure."

Admittedly the petitioner has served for about 21 months and therefore under Railway Servants (Efficiency and Discipline) Rules, 1961, she is entitled to a show-cause notice if it is intended to remove her on account of misconduct or inefficiency. It is the case of the respondent that she is bring removed on account of misconduct efficiency. It is argued that in view of the agreement signed by the petitioner she is not entitled to these protections, but suffice it to say that there is no estoppel against this statute. Even a temporary employee cannot be removed without observing the formalities as laid down in the rules. 1 am fortified in this view by P L D 1965 S C 208, wherein it has been held that-

"even a temporary employee cannot be dismissed or removed unless he has been given a reasonable opportunity of showing cause against the action proposed."

The result would be that the order of termination of service is illegal. She be re-instated if her services have been terminated. However, if the respondents want to terminate her services they must observe the formalities before terminating her services.

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