Dharmendra vs State of U.P. and Others

Devendra Kumar Arora, J.—Heard Sri Suresh Chandra Verma, Learned Counsel for petitioner and the learned Standing Counsel appearing on behalf of respondents.

By means of this writ petition, the petitioner has prayed for a writ in the nature of certiorari for quashing of the impugned order dated 04.1.2008 (Annexure No. 1), passed by Senior Superintendent of Police, Agra by which his selection as Constable has been cancelled on the ground that on inquiry his caste certificate was found forged as the same was reported not to be issued by the Tehsildar, Bhogaon, district Mainpuri.

Submission of Learned Counsel for petitioner is that the petitioner belongs to Scheduled Caste i.e. ''Jatav'' and in support of his claim he has also filed Caste Certificate (Annexure No. 2), issued by the Tehsildar, Bhogaon, district Mainpuri indicating his caste. But, by means of the impugned order petitioner''s selection has been cancelled on the basis of the report of the Tehsildar, Bhogaon, district Mainpuri on the ground that the said caste certificate was forged and the same was not issued by the Tehsildar, Bhogaon, district Mainpuri. As per local inspection report of Revenue Inspector the caste of petitioner Dharmendra is ''Aheer'' and not ''Jatav''. i.e. Scheduled Caste.

Further submission of Learned Counsel for petitioner is that he has not been afforded any opportunity to explain the correct position. Moreover, impugned order is of stigmatic in nature.

Learned Counsel for petitioner has relied upon a decision of this Court passed in Writ Petition No. 8459 of 2008 (Puspsendra Kumar v. State of U.P. and Ors.) in which while setting aside the impugned order, the matter was remanded back to the competent authority to take a fresh decision in accordance with law after affording full opportunity of hearing to the petitioner.

From perusal of the said decision it is evident that the Court has relied upon a decision of Hon''ble Supreme Court reported in AIR 2000 1706 (SC) in which it has been held that such an order amounts to dismissal and, therefore, a notice was necessary. It has further been held that a notice is also required under para 541 of U.P. Police Regulations Act.

Learned Counsel for petitioner also relied on the decision of Paras Nath Pandey v. Director, North Central Zone Culture Centre (2008 (10) ADJ 283 in which Division Bench of this Court has exhaustively dealt the similar issue.

Learned Standing Counsel while opposing the writ petition, submitted that the Director General of Police, U.P. issued a direction to all the S.S.P./S.P./Commandant to verify and re-examine the caste certificates, certificates of educational qualifications, physical and medical fitness certificates of the new recruits and in pursuance of the same the exercise of re-verification was done in which it was found that Caste Certificate issued by the Tehsildar, Bhogaon, district Mainpuri was reported to be not issued by the Office of Tehsildar, Bhogaon, district Mainpuri and, thus, it was proved that the petitioner submitted false caste certificate for obtaining appointment. The competent authority after receipt of the report of the Tehsildar Bhogaon, district Mainpuri cancelled the selection of the petitioner vide order dated 04.1.2008 and, therefore, there is no illegality in the impugned order. As such, the writ petitions deserve to be dismissed.

I have considered arguments of Learned Counsel of respective parties and gone through the record.

It is admitted position that no opportunity was given to the petitioner before passing of the impugned order and the impugned order has been passed on the basis of some report received from the Tehsildar, Bhogaon, district Mainpuri behind back of the petitioner. The petitioner has been made victim of the ex-parte report of Tehsildar dated 29.9.2007. Apart from this, the impugned order on the face of it, is of punitive in nature and, therefore, it was incumbent upon the opposite parties to provide an opportunity of explanation to the petitioner before relying upon the report of the Tehsildar Bhogaon dated 29.9.2007. The record shows that the S.S.P. Agra straight away passed the impugned order dated 04.1.2008 on the basis of the report of Tehsildar dated 29.9.2007.

It is also brought to the notice of this Court that appointments of two other constables namely, Pushpendra Kumar and Awadhesh Kumar were also cancelled on basis of the same report of Tehsildar dated 29.9.2007 and both the constables approached this Court by means of Writ Petition No. 8459 of 2008 (Pushpendra Kumar v. State of U.P. and Ors.) and Writ Petition No. 30072 of 2008 (Awadhesh Kumar v. State of U.P. and Ors.). Both the writ petitions were allowed by this Court with the direction to the competent authority to take a fresh decision after affording opportunity of hearing in accordance with law.

The present petitioner is also victim of the same report of the Tehsildar dated 29.9.2007 and, therefore, he requires the similar treatment.

The Hon''ble Supreme Court in the case of AIR 2000 1706 (SC) while analysing the test for determining the order as simpliciter or punitive, pleased to observe as under:

The tests for determining whether termination was a termination simpliciter or by way of punishment laid down in earlier decisions were reiterated in Oil & Natural Gas Commission v. (Dr.) Mohd. S. Iskender Ali and Nepal Singh v. State of U.P.... The latter was a case of termination simpliciter on account of the drive launched by the Inspector General of Police for weeding out police officers who were unsuitable or unfit to be continued in service. On the facts and circumstances of that case, it was held that the question whether the appellant, who was a temporary servant, should be retained in service, directly arose during the drive launched to weed out unsuitable officers and it was for this reason that the termination order was upheld, particularly as there was nothing to show that the termination order was made by way of punishment. In another decision which, incidentally, again is Nepal Singh v. State of U.P., the Court held that where the services of a temporary government servant are terminated on the ground that his reputation for corruption makes him unsuitable for retention in the service, the State, or for that matter, any statutory employer, must take great care when proceeding to terminate a career on the ground of unsuitability, to ensure that its order is founded on definable material, objectively assessed and relevant to the ground on which the termination is effected. It was observed that the Court will view with great disfavour any attempt to circumvent the requirement of Article 311(2). In Anoop Jaiswal v. Govt. of India it was found on a consideration of the entire record that the real foundation for the order of discharge of the appellant probationer was the alleged act of misconduct. This, it was observed, made the impugned order punitive in nature and was, therefore, held to bad.

The Court further analysing the concept of ''Motive" or ''foundation'' pleased to observe in paragraphs 28 & 29, as under:

The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".

"Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry.

In the case of Paras Nath Pandey v. Director, North Central Zone, Cultural Centre, Allahabad, reported in 2009 (1) ESC 155 (All)(DB) the Division Bench of this Court after analysing the various judgments of Hon''ble Apex Court as well as of this Court, lays down the principles to find out whether a simple order of termination is punitive or not. The relevant paragraphs 57 & 58 of the Judgment read as under:

From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under:

(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution.

(b) An order of termination simpliciter prima facie is not a punishment and carries no evil consequences.

(c) Where termination simpliciter is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some materials to show certain circumstances, preceding or attending, shadowing the simpliciterness of the said order.

(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct.

(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it should be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.

(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping. "Motive" is the moving power, which impels action for a definite result, or to put it differently. "Motive" is that which incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e. the conduct of the employee, when his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.

(g) if an order has a punitive flavour in cause or consequence, it is dismissal, but if it fails short of it, it would not.

(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.

(I) Where the termination simpliciter is preceded by an inquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.

(j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating a probationer or temporary employee is held, it would not make the order punitive.

(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.

(l) Where the employee hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.

(m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be punitive.

(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.

(o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive.

(i) "want of application",

(ii) "lack of potential",

(iii) "found not dependable",

(iv) "under suspension",

(v) "work is unsatisfactory",

(vi) "unlikely to prove an efficient officer.

(p) Description of background facts also have not been held to be stigmatic.

(q) However, the words "undesirable to be retained in Government service"'' have been held stigmatic.

(r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive.

The aforesaid are not exhaustive, but lay down some of the principles to find out whether termination of an employee is simpliciter or punitive. Each and every case has to be considered in the light of the facts and circumstances of the case, but broadly the aforesaid are the factors to find out whether termination of an employee is punitive or not.

From the analysis of the aforesaid facts and circumstances of the case, this Court comes to the conclusion the impugned order is an outcome of the exparte report of the Tehsildar dated 29.9.2007 and the said exparte report is the motive of inflicting action upon a person which visited him with civil consequences. The said action cannot be acted upon without affording opportunity. Apart from this, the impugned order is stigmatic in nature.

For the aforesaid reasons, the writ petition succeeds and is allowed. The impugned order dated 04.1.2008, passed by Senior Superintendent of Police, Agra (Annexure No. 1 to the Writ Petition) is hereby quashed. The matter is remanded back to the S.S.P. Agra to take afresh decision in the case of petitioner within a period of two months from the date of submission of certified copy of this order.

No order as to costs.