Dhratrashtra Sindhu vs State of U.P. and Others

Sibghat Ullah Khan and Anil Kumar, JJ.—By means of the present writ petition, the petitioner challenges the judgment and order dated 3.7.1998 passed by the U.P. Public Services Tribunal, Lucknow in Claim petition No. 303 of 1995, Dhratrashtra Sindhu v. State of U.P. and others and also the order dated 18.7.1994 passed by Deputy Commissioner (Executive) Trade Tax, Noida Circle, District Ghaziabad by which the services of the petitioner were terminated.

We have heard Sri Ashok G. Sharma, learned Counsel for the petitioner and Sri Sharad Dwivedi, learned Counsel for the respondents.

Learned Counsel for the petitioner has submitted that the petitioner was initially appointed on the post of driver by means of order dated 21.2.1989 passed by Assistant Commissioner, Sales Tax Department now the Trade Tax. In pursuance of the order of his appointment, the petitioner joined the duty on 25.2.1989.

On 19.3.1993, the respondent No. 2 had issued an order thereby appointing one Sri Kuldeep Singh, Assistant Commissioner, as inquiry officer under the provision of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules on account of irregularities committed by the petitioner.

On 23.3.1993, the enquiry officer had issued a charge-sheet to the petitioner in which six charges were levelled against him and all of them in respect to the fact that the petitioner was wilfully absent from the duties.

After receiving the charge-sheet, the petitioner submitted his reply denying the charges which were levelled upon him by the enquiry officer and on the basis of the report of the enquiry officer, the respondent No. 2 Deputy Commissioner (Executive) Trade Tax, Ghaziabad had passed an order on 14.5.1993 inflicting the punishment of withholding salary of the petitioner for his alleged absence and withholding of one annual increment with cumulative effect

Thereafter, again on 2.6.1994, an adverse entry for the year 1993-1994 was awarded to the petitioner on the alleged absence and on the next very day i.e. on 3.6.1994, a show cause notice was also given to the petitioner by the respondent No. 2 to show cause why the services be not terminated for absenting from duties as he was habitual for coming late in the office. The said show cause was issued to the petitioner under the provisions of U.P. Government Servant Conduct Rules and the petitioner was required to submit his reply to the show cause.

On 14.5.1993 in response to the show cause notice, the petitioner had demanded certain documents and evidence to submit his reply.

On 22.6.1994, the petitioner has submitted his representation through proper channel to the competent authority of the department against the adverse entry for the year 1993-1994 which was awarded to him by order dated 2.6.1994.

By means of order dated 18.7.1994 passed by the Deputy Commissioner, Executive) Trade Tax, Ghaziabad, the services of the petitioner were terminated by invoking the provision under U.P. Temporary Government Servants (Termination of Service) Rules, 1975.

Aggrieved by the orders dated 18.7.1994 passed by opposite party No. 2, the petitioner had challenged before the U.P. Public Services Tribunal by way of claim petition No. 303 of 1995, Dhratrashtra Sindhu v. State of U.P. and others.

After exchanges of pleadings between the parties, the Tribunal by means of judgment and order dated 3.7.1998 had dismissed the claim petition of the petitioner on the ground that the fact of the case reveals that the impugned order of termination though might have been the result of motive on the part of disciplinary authority on account of the alleged misconduct of the petitioner, but since it was not made the foundation of the termination order, it cannot be said to be illegal or in violation of U.P. Temporary Government Servants (Termination) Rules, 1975. On the other hand, the said innocuous termination order appears to give vent to non penal or non-punitive attitude of the disciplinary authority as instead of dismissing the services of the petitioner after completing departmental enquiry initiated earlier against him and thereby depriving him to all opportunities to get employment anywhere, a simple and innocent termination order was preferred to be passed to avoid any stigma so there may not be any hindrance or hurdle in the way of petitioner to gain employment anywhere else. While passing the impugned order against the petitioner, the Tribunal had relied two judgments passed by Hon''ble Supreme Court; (1) Ravindra Kumar Misra v. U.P. State of Handloom Corporation Limited and another 1987 (55) FLR 892 (SC) , and (2) Grahak Sanstha Manch and others Vs. State of Maharashtra,

Aggrieved by the orders dated 3.7.1998 passed by the U.P. State Public Services Tribunal and the order dated 18.7.1994 passed by opposite party No. 2. Deputy Commissioner (Executive) Trade Tax, Ghaziabad by which the services of the petitioner were terminated, the petitioner has filed the present writ petition before this Court.

Sri Ashok G. Sharma, learned Counsel for the petitioner submits that the order of termination is simplicitor and thus the same cannot be passed by invoking the provision under U.P. Temporary Government Servants (Termination of Service) Rules, 1975. However, in the present case the order of termination is based on the misconduct against the petitioner in respect to which initially disciplinary proceedings were initiated which was foundation of the impugned order of termination as such U.P. Temporary Government Servants (Termination of Service) Rules, 1975 will not apply in the facts and circumstances of the case and thus, the order of termination passed by opposite parties vitiates and are arbitrary in nature.

It has further been submitted by the learned Counsel for the petitioner that the petitioner was initially appointed on the post of Driver on temporary basis. So far as initiation of the disciplinary proceedings against the petitioner, show cause notice as well as appointment of enquiry officer was made against the petitioner are concerned, the provision under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, and U.P. Government Servant Conduct Rules etc. can only be invoked in case of permanent employee as such the respondent has treated the petitioner as permanent employee.

In addition to above said grounds on which the orders under challenged were assailed, the learned Counsel for the petitioner further submits that the petitioner was appointed on the post of Driver in the Department by the order passed by the Assistant Commissioner (Executive) Trade Tax, Ghaziabad whereas his service were terminated by the Deputy Commissioner (Executive) of the department, who is subordinate authority to the punishing authority as such the order of termination is without jurisdiction. In support of his submission learned Counsel for the petitioner has relied upon the following judgments:-

(1) Parshotam Lal Dhingra Vs. Union of India (UOI),

(2) State of U.P. and others v. Vijay Shanker Tripathi 2005 (106) FLR 919 (SC),

(3) D.S. Sharma v. Union of India 1991 (1) SLR 40,

(4) Dipti Prakash Banerjee v. Satyendra Nath Bose National Center for Basic Sciences, Calcutta and others 1999 (81) FLR 687 (SC).

Sri Sharad Dwivedi, learned Standing Counsel has supported the impugned orders which are under challenge in the present writ petition and stated that the services of the petitioner were rightly terminated in accordance with the provision under U.P. Temporary Government Servants (Termination of Service) Rules, 1975 and the same does not suffer from any illegality or infirmity. Moreover, the alleged allegation made by the learned Counsel for the petitioner to the effect that the misconduct was the foundation of passing of the order of termination is totally incorrect and wrong moreover the order of termination was simplicitor in nature without any stigma on the petitioner.

It has further been submitted by the learned Counsel for the respondents that the Tribunal had given a clear finding that the post of Assistant Commissioner (Executive) in the department was abolished by means of Government Order dated 30.3.1990 and the appointing authority was the Deputy Commissioner (Executive) as such in the present case Deputy Commissioner (Executive) has a right to pass simplicitor order of termination in accordance with the provision of law and the same findings does not suffer from any illegality or infirmity. As such the submissions which are made on behalf of the petitioner by his learned Counsel in support of his case, are totally misconceived and incorrect and the present writ petition filed by the petitioner is liable to be dismissed. In support of his submission, he relies upon the following judgments:

(1) Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Limited and another 1999 (81) FLR 475 (SC).

(2) State of U.P. and another State of U.P. and another Vs. Km. Prem Lata Misra and others,

(3) Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. and Another,

We have heard the learned Counsel for the parties and gone through the record.

As per the admitted facts of the present writ petition are that the petitioner was appointed on temporary basis by means of order dated 21.2.1989 passed by the Assistant Commissioner (Executive) of the Sales Tax Department now the Trade Tax Department. Subsequently, thereafter by order dated 19.3.1993 passed by Dy. Commissioner (Executive) on account of alleged irregularities committed by the petitioner and enquiry was under contemplation and Sri Kuldeep Singh, Assistant Commissioner was appointed as Enquiry Officer. Later on, on 23.3.1993 the enquiry officer had issued a charge-sheet in which six charges were levelled and all of them relate to the fact that the petitioner was absent from duty to which the petitioner had submitted its reply to the charges and on the basis of the same. On 14.5.1993, a punishment order inflicting punishment of withholding of petitioner''s salary for his alleged absence and withholding of one annual increment with cumulative effect was passed by the Deputy Commissioner (Executive) Trade Tax.

Thereafter, petitioner was awarded an adverse entry for the year 1993-94 for the alleged absence and his integrity was also withheld. This order was communicated to the petitioner on 2.6.1994 and the very next date i.e. on 3.6.1994 a show cause notice was also issued to show cause why the service be not terminated as he was absent from duty and was habitual to come in the office late. After receiving the show cause notice, the petitioner demanded certain documents and evidence in order to submit his reply but the same was not given to him. Later on, he made a representation towards the adverse entry for the year 1993-1994 which was awarded to him vide order dated 2.6.1994. However, his services were terminated by order dated 18.7.1994 passed by the Deputy Commissioner (Executive) Trade Tax invoking the provision under U.P. Temporary Government Servants (Termination of Service) Rules, 1975 which was challenged by the petitioner before the Tribunal and the Tribunal had found that the petitioner''s service were rightly terminated by order dated 18.7.1994 by the opposite party No. 2 and the alleged misconduct on the part of the petitioner was not made the foundation of termination order so it cannot be said that the order of termination is in violation of U.P. Temporary Government Servants (Termination of Service) Rules, 1975 rather the same is in accordance with the said rules and the order of termination in the present case is simplicitor and innocent in nature.

After going through the facts and circumstances of the case and the material on record, we are of the opinion that the Tribunal had miserable failed to construe the impugned order of termination. It had lifted the vial and peeped into the matter in question then found that there was allegation against the petitioner that he was wilfully absent and was habitual to come late in the office in respect of which initially enquiry was conducted and punishment was awarded to him thereafter on the same allegation an adverse entity was given and a show cause notice was also issued to the petitioner. All the said facts compelled the punishing authority to pass an order of termination thereby terminating the services of the petitioner yet the Tribunal had come to the conclusion that the order of the termination of petitioner''s service was simplicitor and not by way of punishment. The provision of U.P. Temporary Government Servants (Termination of Service) Rules, 1975 would not apply where a temporary Government Servant is sought to be removed by way of punishment. If there is a termination simplicitor, which is intended to be ordered in respect of a Government Servant Rule 3 of the Rules can be invoked. But if a Government servant, who is governed by these rules is sought to be removed on the ground of misconduct, embezzlement or lack of integrity, something more is required to be done before the termination of which Government servant is ordered. Something more must be consistent with the constitutional provisions and with the principles of natural justice. At least a hearing is to be given to such Government employee to explain his misconduct, lack of integrity and negligence of duty.

In the case of State of U.P. and another State of U.P. and another Vs. Km. Prem Lata Misra and others, Hon''ble the Supreme Court has held that it is settled law that the Court can lift the veil of the innocuous order to find whether it is the foundation or motive to pass the offending order. If misconduct is the foundation to pass the order then an enquiry into misconduct should be conducted and an action according to law should follow. But if it is motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated, in terms of the order of appointment or rules giving one month''s notice or pay/salary in lieu thereof. Even if an enquiry was initiated could be dropped midway and action could be taken in terms of the rules or order of appointment.

In the case of Radhey Shyam Shukla v. State of U.P. and others (2008) 1 UPLBEC 177, Hon''ble the Supreme Court after considering the various case laws has held in the cases of Tnveni Shanker Saxena v. State of U.P. 1992 (64) FLR 630 (SC) : 1992 SCC (L&S) 440 , and State of U.P. and another State of U.P. and another Vs. Km. Prem Lata Misra and others, has held that in the former case, the termination order was simple order which did not cast any stigma and there were several adverse entries in the confidential reports. The termination was as per rules. In the letter case, the employees superiors complained that the employee was not regular in her work and was in the habit of leaving office during office hours. A simple order of termination was passed in terms of the order of her temporary appointment. There was no prior enquiry. In both these cases, the termination orders were upheld.

Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others, the Hon''ble Supreme Court in paragraph 21 of the report observed as under:-

If findings were arrived at in an enquiry to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, as the same time, he did not want to continue the employee against whom there were complaints, if would only be a case of motive and the order would not be bad. Similarly is the position if the employer did not want to enquiry into the truth of the allegation because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid.

A perusal the above, clearly shows that if an enquiry was conducted as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple termination is to be treated as ''founded'' on the allegations and will be bad.

Similarly in AIR 2000 1706 (SC) the Hon''ble Supreme Court articulated that if for determination of suitability for the post or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate the services, the order will not be punitive in nature. But, if there are some allegations of misconduct and an inquiry is held to find out the trust of that misconduct and thereafter the order of termination is passed, the order would be punitive in nature in V.P. Ahuja v. State of Punjab 2000 (85) FLR 197 (SC), the Apex Court reiterated mat services of temporary servant and even of probationer cannot be terminated arbitrarily, or can those services be terminated in a punitive manner without complying with the principles of natural justice as they are also entitled to certain protection.

In the case of Nar Singh Pal v. Union of India and others 2000 (85) FLR 458 (SC), Hon''ble Supreme Court has held that the reasoning of the Tribunal is fallacious. If an order had been passed by way of punishment and was punitive in nature, it was the duty of the respondents to hold a regular departmental enquiry and they could not have terminated the services of the appellant arbitrarily by paying him the retrenchment compensation. The observation of the Tribunal that the respondent had a choice either to hold a regular departmental enquiry or to terminate the services by payment of retrenchment compensation is wholly incorrect.

In the case of Hari Ram Maurya v. Union of India and others (2006) 9 SCC 167, Hon''ble Supreme Court has held that from the order of termination Annexure P-7, it appears that the same refers to the show cause notice dated 20.8.2002 which is to be found at Annexure P-5. It is stated therein that the appellant demanded kickback with a view to help the complaint to get a favourable order in the pension matter. That being so, there was a clear charge of bribery levelled against the appellant. No doubt, the appellant was a temporary employee, but if he is sought to be removed on the ground that he was guilty of the charge of bribery, it becomes necessary for the respondent-Union of India to hold an inquiry and thereafter to act in accordance with law. In this case, admittedly, no inquiry was conducted, and that is obvious even from Annexure P-7, the latter described as disengagement of casual labour. We, therefore, allow this appeal and set aside the order of the High Court as also the order of termination Annexure P-& dated 30.9.2002. This, however, will not prevent the respondents from taking action in accordance with law.

In the case of State of U.P. and others v. Vijay Shanker Tripathi 2005 (106) FLR 919 (SC) : 2005 (33) AIC 126 (SC), Hon''ble Supreme Court has held that from a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either thin or overlapping. It may be difficult either to categories or classify strictly orders of termination simplicitor falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or to motive on the ground of unsuitability to continue in service.

A Division Bench of this Court in the case of Kailash Bharti v. State of U.P. and others 2005 (23) LCD 436, has held that the factual situation indicates that had there been no allegation of drunkenness there would have been no order of termination. The papers and affidavits show this and those are all matters of record. The whole thing having come to the notice of the Writ Court it cannot now say that the Court and everybody else will now only look at the faceless, or the unreasoned; letter of termination, but it will show its eyes to the history of its genesis. This type of self-imposed partial blindness is not permitted to the Writ Court. As such the order of termination brought into existence, because an allegation of drunkenness against the writ petitioner was found without any hearing to be true, has to be set aside.

On going to the back grounds of the present case, it is crystal clear that the petitioner was absent from duties and a charge-sheet was issued in which six charges were levelled against him to the same facts and an enquiry was conducted on the basis of which the punishment order has been awarded. Thereafter on the same charge, an adverse entry was given to the petitioner for the year 1993-1994 and in continuation to the same a show cause notice was also issued that why the services of the petitioner be not terminated and he was asked to submit his reply. Thereafter, all of sudden invoking the provision under U.P. Temporary Government Servants (Termination of Service) Rules, 1975, the services of the petitioner was terminated vide order dated 18.7.1994 passed by opposite party No. 2.

In. these circumstances, the reasons behind terminating the petitioner''s service was the alleged misconduct committed by the petitioner of Wil fully absent from the duties without prior permission and also coming late in the office was the foundation of passing of the order of termination as such the same is by way punishment which has been passed admittedly in the present case. After giving show cause, no opportunity whatsoever was given to the petitioner in spite of the fact that he was demanding certain documents to submit his reply. The allegation on which the respondent has terminated the services of the petitioner that he was absent from duty time and again without any prior permission and he was habitual to come late.

In view of the above said fact, once we come to the conclusion on the basis of the facts and circumstances of the present case that the opposite party No. 2 cannot pass the order of termination under U.P. Temporary Government Servants (Termination of Service) Rules, 1975 as the same was not an order of simplicitor but passed by way of punishment on the alleged misconduct which were the foundation of trie passing the same. So in our opinion, there is no need to adjudicate and decide the other issues involved in the present case as the present writ petition succeeds on the aforesaid ground alone.

Accordingly, the writ petition succeeds and is allowed. The order dated 4.7.1998 passed by the U.P. Public Services Tribunal in Claim petition No. 303 of 1994 and the order of termination dated 18.7.1994 passed by the Deputy Commissioner (Executive) Trade Tax, Ghaziabad are quashed and the opposite parties are directed to reinstate back the petitioner in service forthwith. However, the petitioner is not entitled for any back wages but the intervening period from the date of termination to the date of joining of service will be counted for other consequential service benefits.

No order as to costs.