Kailash Bharti vs State of U.P. and Others

Ajoy Nath Ray, C.J. and Jagdish Bhalla, J.—This is final hearing of the appeal from an order-dated 14.12.2004 whereby the Hon''ble single Judge dismissed the writ petition of the Appellant writ-Petitioner.

The Appellant was a temporary employee of the Respondents and his services were terminated by a notice of termination simplicitor. If the notice itself is looked at no words of stigma would appear, nor anything to the effect that any inquiry had been held behind his back and that the notice of termination is the product thereof.

We find from the papers before us and the submissions made that if the writ petition had stood by itself and no counter-affidavit had been filed thereto, the writ Petitioner would have absolutely no case to urge before the court. This would be because the writ Petitioner would be unable to establish any stigma against him since none was apparent from the contents of the termination order itself. However, it appeared from paragraphs 9 and 11 of the counter-affidavit filed in the court below that the real reason for termination had been an allegation against the writ Petitioner that he was found drunk on duty. The papers seem to indicate before us that even this allegation was not very well founded and that in fact he was not drunk at all.

Be that as it may, the position is that the inquiry was certainly nothing more than of a preliminary nature but it is equally clear that without any show cause or a hearing the allegation against the writ-Petitioner was indeed inquired into and it was only as a result of that the notice of termination without inquiry came into being. Factually speaking, the crux of the matter is this that had there been no allegation of drunkenness on duty, and had there been no finding arrived at, however unofficially, in the department of the Respondents that the allegation was true, the writ Petitioner''s temporary service would not have been terminated on the date and in the manner it had been actually terminated.

The law of termination of services of temporary employees of public servants would determine the fate of this case.

Before entering into the law we put to the learned Counsel for the Appellant as to what his client could hope for since even if he is reinstated on a temporary basis today he can have a termination order simpliciter served upon him tomorrow, this time on a perfectly valid and faceless legal footing ; learned Counsel replied that his client would not take the chance and rejoin as a temporary employee and may be, if he is serving properly there would be no termination, hopefully even a permanent job in the future. This part of the matter we leave it at that but it is enough to clarify that the appeal, if won by the Appellant would not necessarily spell out only an empty win. The Supreme Court has spoken on many occasions in regard to termination of employment of employees who are temporary employees or a serving out their probationary period. And order of termination simpliciter in the ordinary facts and circumstances is not challengeable as the services of the employee in its essence is yet unconfirmed and liable simply to evaporate therein as there being nothing adverse to show on either side about one another. However a termination with a stigma or with something which can give rise to a permanent record of stigmatic stands on a different footing. If a temporary public employee is terminated with an allegation of misconduct and that allegation remains on record, he is affected because his future career is affected by the permanent public record of his misconduct. It has been formulated that in case of termination of even temporary employment with stigma, the rules of natural justice would have to be followed and the other attendant consequence of judicial review would be present.

On behalf of the Appellant two comparatively recent Supreme Court cases were relied upon in the opening, namely, those of Radhey Shyam Gupta Vs. U.P State Agro Industries Corporation Ltd. and Another, and 2000 (3) AWC 1848 (SC): (2000) 5 SCC 152.

There are indeed observations in these judgments to show that even if the inquiry is of a preliminary in nature yet if such inquiry is the cause of termination and is concluded without a hearing and if such inquiry is stigmatic, then and in that event, the writ Petitioner would be entitled to have relief.

On behalf of the Respondents reliance was placed upon Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences and anr, . In that case the Supreme Court found that even according to the inquiry only the suitability of the writ Petitioner in the probationary service was pronounced upon. There was no stigma in any event. Their Lordships has fixed the criteria in paragraph 21 of the judgment as to when and under what circumstances the termination of an employment which is of a temporary nature could be interfered with by the Court.

In reply, the yet more recent Supreme Court case was given on behalf of the Appellant being the case of State of Punjab and Others Vs. Balbir Singh, . This case has considered P. V. Verma''s case also. The decisions of the Supreme Court which we have referred to above are all decisions of Benches passed by two Hon''ble Judges only.

Thus, all the cases would have to be applied by us. This is not difficult as, in our respectful reading the cases do not really speak with different voices. The following principles can be enunciated from those:

(i) That an order of termination simpliciter which does not contain any stigma in its language, does not by itself debar the writ court from looking behind the order for ascertainment of the true motive and foundation of it.

(ii) On the basis of the materials on record including affidavits and documents brought before the Court, the writ court can, if the circumstances are appropriate, come to a finding of fact as to what was the reason and genesis of the order of termination. In doing that, it can and should judge, in all the facts and circumstances, whether in pith and substance the order of termination is a product of the employer accepting some allegation of misconduct or serious ineptitude against the writ Petitioner. In case of such finding, the order of termination would have to comply with the requirements of an ordinary inquiry and hearing.

(iii) If the Court finds that the inquiry for termination resulted only in some innocuous departmental finding against the writ Petitioner, even if it be reached behind his back, like redundancy or mere suitability for the job, the writ Petitioner would have no case. The reason for this is that the redundant employer still has a chance of being employed elsewhere, and since he has a good name left ; and that an unsuitable employee in one organization and one department might still be suitable elsewhere. Ineptitude, negligence, drunkenness and misconduct are not of this nature, since those would render the employer unsuitable everywhere and for all purposes to a great degree.

Applying these principles to our case the answer to the question is given immediately.

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 shut 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.

The appeal is allowed. The order under appeal is set aside. There will be orders as prayed for in the writ petition, i.e. the impugned order of termination of the writ Petitioner dated 5.3.1992, issued by the opposite party No. 4 in the writ petition is set aside and quashed and there shall also be an order of mandamus directing the Respondents and their concerned servants, agents and assigns to permit the Appellant to rejoin his temporary services on the same footing as if the order of termination dated 5.3.1992 had not come into existence at all. The Appellant shall present himself to duty at the place where he was working within a fortnight from the date and he shall be reinstated in the temporary service then and there. The Appellant shall not claim the arrears of salary or benefits. After the Appellant rejoins his services, his future services and career will abide by his good conduct and law.