Kailash Bharti vs State of U.P.and Others

Rakesh Tiwari, J.—This writ petition is directed against an order dated 5.3.92 passed by Superintendent of Police, ShahjahanpurRespondent No.4 terminating the services of the petitioner w.e.f. the date of receipt of notice. Services of the petitioner have been terminated by Annexure No.1 to the writ petition under U.P. Temporary Government Servants (Termination of Service) Rules, 1975.

Learned Counsel for the petitioner contends that the petitioner was selected for the post of Constable. He was suffering from cold, cough and fever w.e.f. 21.1.92 and was under the treatment of Dr. V. Rastogi, M.B.B.S., D.T.C.D.

On 21.1.92, he was deputed for picket duty at Sabji Mandi, Shahjahanpur from 8 p.m. to 8 a.m. It is averred in the writ petition that the petitioner left the picket duty under some compelling circumstances for consulting Doctor. He took medicines as advised by Doctor. Before he could inform his colleagues or higer authorities, he was summoned by Station Officer and Circle Officer at 9.30 p.m. on 22.1.92. Allegations has levelled that he had consumed liquor. He was sent for medical examination and he was medically examined. He submitted his explanation for absence from duty. It is contended by the counsel for the petitioner that no formal proceedings as required under Section 7 of the Police Act were drawn nor any charge sheet was issued and his services have been terminated without holding any enquiry. He also submits that the procedures adopted in preliminary enquiry are against the principles of natural justice and fair play, consequently, his services were terminated by order dated 5.3.92 on the ground that his services were no longer required. It is submitted that though the order impugned is clothed by an order of termination simplicitor but the same is punitive in nature being in violation of Article 311 (2) of the Constitution of India.

Admitted facts having been called out in the petition are that the petitioner was on picket duty. He left his duty without informing his superiors and submitted a certificate of a private Doctor, which is not permissible. He was examined in the Police Hospital and it was found that he had consumed liquor and had not taken any medicine containing alcoholic content. Report of the Doctor has specifically mentioned this fact.

A perusal of Annexure No.1 shows that neither there is any allegation to the effect that the services of the petitioner have been terminated on the ground of consumption of liquor duty hours nor there is any other allegation against him. The order is termination order simplicitor. It appears that incident of consumption of liquor is being read into this order by counsel for the petitioner. Services of the petitioner were wholly temporary and could be terminated under U.P. Temporary Government Servants (Termination of Services) Rules, 1975.

Learned counsel for the petitioner relied upon Radhey Shyam v. U.P. State Agro Industries Corporation Limited and another, (JT 1998 (8) SC 585), in which in paragraph 35 and 35 the Apex Court has held as under:

�34. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive in as much as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narain Das''s case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is primafacie evidence on material to initiate a regular departmental enquiry. It has so decided in Champaklal''s case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows giving an opportunity it will not be bad. Even in a case where a regular departmental enquiry is started, a chargememo is issued, reply obtained and an Enquiry Officer is appointed. If at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the Enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in such Raj Bahadur''s case and in Benjamin''s case. In the latter case the departmental enquiry was stopped because the employer was not sure of establishing the guilty of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to as certain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career, if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.

But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definite nature at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice in as much as the purpose of enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases the termination is to be treated as based or founded upon misconduct and will be punitive. There are obviously not cases where the employer feels that there is a mere cloud against the employee''s conduct but are cases where the employer has virtually accepted the definite and clear findings of the Enquiry Officer, which are all arrived at behind the back of the employee even though such acceptance of the findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases.�

The facts of the above case were altogether different from the facts of the present case. In that case the order of termination was preceded by departmental enquiry and findings were said to have been arrived at behind the back of the employee. In the instant case neither any charge sheet was issued nor enquiry was held and the order impugned is the order of termination simplicitor. It is not a case where any allegations were levelled against the petitioner with a view to punish him or with a view to gather evidence for a future regular departmental enquiry. The facts of the above case are clearly distinguishable from the facts of the case in hand.

Counsel for the petitioner also placed reliance in para 34 of Chandra Prakash Shahi v. State of U.P. and others, (2000) 5 SCC 152, which is quoted below:

�If this procedure is followed and the services are terminated thereafter it would not amount to a punitive action. The rule being mandatory in nature, compliance therewith would not alter the nature of the order passed against the probationer. This aspect was considered by this Court in two decisions, namely, State of Orissa v. Ram Narain Das and Ramesh Chandra Banerjee v. Union of India in terms of Rule 55B of the Civil Services (Classification, Control and Appeal) Rules, which in all respects, is akin to para 541 of the U.P. Police Regulations quoted above.�

In that case services of a probationer were proposed to terminated, procedure for which was prescribed in the Regulations for that purpose. This is not the case of probationer nor the services of the petitioner have been terminated on any ground of misconduct. The order impugned also does not cost any stigma. The above case does not apply to the peculiar facts and circumstances of the present case.

The petition is devoid of merits and is accordingly dismissed without any order as to costs.

(Petition dismissed)