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Judgment
Mrs. Shobha Dikshit, J.—This writ petition is directed against the judgment and order dated 2251980 passed by U.P. Public Services Tribunal rejecting the claim petition filed by the petitioner challenging the order dated 381970 terminating his services.
The facts as revealed from the writ petition are that the petitioner was initially appointed on the post of SupervisorcumAccountant under the Handloom Development and Cooperative Scheme in a temporary capacity in the year 1957 vide his orders dated 1041957. Subsequently, he was promoted, to the post of Technical Supervisor in the same department vide orders dated 3031962. In the aforesaid capacity of Technical Supervisor, he was posted at various places including Mathura where he worked from 1963 to 1968 and thereafter he was transferred to Mainpuri and from Mainpuri to Phoolpur. While he was working at Mathura, he detected some misutilisation and misappropriation of funds but since this fact was not mentioned in the report of one Daya Shanker Dixit, Textile Inspector, therefore, the petitioner brought these facts to the knowledge of the District Industries Officer, Mathura through a confidential letter. Unfortunately, the said District Industries Officer instead of appreciating the same, became prejudiced and started harassing him with the connivance of Sri Daya Shanker Dixit, so much so, that the said Sri Daya Shanker Dixit warned the petitioner of dire consequences. This threat was followed by frequent change of headquarters of the petitioner and his T.A. and salary bills were withheld from April, 1966 onwards for rid valid reasons. Petitioner brought this fact to the notice of his senior officers on whose instance, a joint meeting of officers of Mathura, Aligarh and Mainpuri was held wherein it was decided to look into the grievances of the petitioner as to why his T.A. and salary bills have been withheld. In the said meeting dated 2071968, it was decided that the District Industries Officer, Mathura shall be directed to withdraw the objections raised by him against the T.A. Bills of the petitioner and the same shall be passed and forwarded for approval. The members of the committee also noticed that the petitioner''s salary has not been paid from April, 1966 therefore, the concerned District authorities were directed to ensure payment of his salary. Regarding absence, directions were issued to look into the matter and regularise the same, otherwise find out the reasons for the alleged absence. It appears that these recommendations were not relished by the said Mr. Dixit and the concerned District Industries Officer, hence at their instance and influence, the services of the petitioner were terminated vide orders dated 3181970 passed by the Joint Director, Industries.
The petitioner filed a claim petition and challenged the order of termination being illegal, without jurisdiction, unconstitutional and mala fide on the ground that the same has not been passed by his appointing authority, the Director Industries but by a lower authority, Joint Director, that it is arbitrary, discriminatory and punitive, hence violating of Articles 14, 16 and 311 (2) of the Constitution of India and mala fide being passed at the dictate of the State government without application of mind by the appointing authority. The claim petition was resisted by the opposite parties by filing a written statement and supplementary counter affidavit stating therein that the appointing authority of the petitioner was Joint Director, Industries who had promoted him and not the Director, as claimed. It was denied that the order of termination of services was punitive or stigmatic, rather it was an order of termination simplicitor. The services being purely temporary and several warnings and adverse entries and special entries having been awarded to him, the same were rightly terminated in terms of the appointment letter on being found unsatisfactory. Petitioner however repelled the aforesaid contentions by filing a rejoinder affidavit and reiterated that his services were terminated illegally and his juniors were retained. The learned Tribunal however rejected the claim petition by holding that the appointing authority of the petitioner was Joint Director and the State Government was competent to issue direction to terminate the services of its employees, being the employer. It also came to the conclusion that the Government must have been apprised of the facts and circumstances on the basis of which it took the decision to terminate the services of the petitioner which were purely temporary.
Learned counsel for the petitioner has challenged the impugned judgment as well as the order of termination firstly on the ground that the State Government could not have legally directed the Joint Director to terminate the services of the petitioner, and even assuming that it could, then there was no material before it for forming an objective opinion that the petitioner was unsuitable or his services were no more required. In support of this contention, it was submitted that the learned Tribunal erred in fact and law both by accepting the argument of the presenting officer that �the Government must have been apprised of the facts and circumstances leading to the termination of the services of the claimant.� He submitted that such an argument was not tenable being based purely on surmises and conjectures specially in the absence of disclosure of the material which was factually placed before the State Government and its application of mind on it. The learned Tribunal, in the facts of the case ought to have rejected the said plea by drawing an adverse inference against the State Government as the admitted position was that the relevant record had been weeded out and there was nothing on record to show that the relevant material was factually placed before the State Government on which it had applied its mind before issuing the direction to terminate the services of the petitioner. Learned counsel for the petitioner referred to the following paragraphs of the impugned judgment:
�The only question, therefore, that has to be gone into, is whether the Government had satisfied itself from relevant material that the claimant was not fit to be retained in service. Admittedly, the claimant was a temporary employee and he does not contend that he became permanent. Unfortunately, the letter of the Government has not been placed before us. It is only the communication of the intention of the Government to terminate the services of the claimant that was conveyed to the Joint Director by the letter of the Dy. Director, Head Quarters dated 20.8.70. The rest of the documents on which reliance could be placed by the learned Presenting Officer to show that the Government had considered the service record of the claimant were weeded out as per the statement of the learned Presenting Officer on the ordersheet dated 7.5.80. Considering the importance of the omission which was forced by the circumstance of weeding out of the papers, the learned counsel for the claimant strongly urged that there was nothing to show that the Government had considered the relevant material before directing the Joint Director of Industries to terminate the services of the claimant. We are of the view that the learned Presenting Officer was handicapped by the fact of the (record) having been weeded out, at the same time, it has to be kept in mind that the claimant was not in direct contact of the Government and therefore, either some complaints were made to the Government or some material was placed before it, the Government on the basis of that record came to the conclusion that the services of the claimant were liable to be terminated. There are documents filed alongwith the counteraffidavit from which it appears that they were not only complaints against the claimant but his work had been found to be unsatisfactory.�
Learned counsel laid great emphasis on the fact that merely because some material was placed before the learned Tribunal through affidavits, it could not be conclusively held that the same was also placed before the State Government. The Tribunal simply presumed the same by accepting the suggestion of the presenting officer, therefore, its approach is wholly erroneous and perverse in the eyes of law. It was pointed out that the conflicting stand taken by the Tribunal is very clear from the following observations made by it:
These circumstances read with the Government decision to terminate the services of the claimant on the basis of which a direction was given would lead to the conclusion that there is force in the contention of the learned Presenting Officer that the Government must have been apprised of the facts and circumstances leading to the termination of services of the claimant. We have already pointed out that owing to papers having been weeded out, it was not possible for the opposite parties to file conclusive evidence showing that the entire material had been considered by the State Government but as pointed out above, there is sufficient evidence to show that the authorities were not satisfied with the work and conduct of the claimant. We therefore, come to the conclusion that there is sufficient circumstantial evidence to show that the material on service record of the claimant was considered by the Government before the Joint Director was directed to terminate the services of the claimant. The Government being the employer was empowered to give such a direction.�
I have perused the judgment of the Tribunal and fail to understand as to on the basis of which material, the learned Tribunal came to the conclusion �there is sufficient substantial evidence to show that the material on service record of the claimant was considered by the Government before the Joint Director was directed to terminate the services of the claimant. The Government being the employer was empowered to give such a direction.� In my opinion, aforesaid finding are wholly perverse and based on no material on record.
Learned counsel next contended that the correct facts are that the relevant material was never placed before the Government. According to him, the appointing authority was in the know of the correct factual position, therefore, it neither took the impugned decision itself, nor recommended or forwarded the case of the petitioner to the State Government for termination of his services. In support of this contention, he referred to the letter dated 31101968 (Annexure to the supplementary rejoinderaffidavit filed before the Tribunal) addressed by the Assistant Director, Industries, Agra to the District Industries Officer, Mathura in response to a letter dated 18 1968 regarding the outstanding payments of Sri M.B.L. Saxena, petitioner. While deprecating the attitude of the District Industries Officer, the Assistant Director had directed him to decide the issue of payment of outstanding dues to the petitioner at an early date as desired by the head office in the light of the fact that the petitioner did not remain absent as alleged and if at all he was absent without authority, then some explanation ought to have been given before taking any action. There was yet another letter dated 30101968 which has reference to the meeting dated 20 1968 held by a committee of three members, Deputy Regional Officer, Agra, Assistant Director Industries, Handloom, Aligarh, District Industries Officer, Mainpuri alongwith another officer constituted to look into the grievances of the petitioner wherein it was decided that the date of grant of increment be corrected from 24101968 to 2441968, his T.A. bills should be passed from January to June, 1968 and all objections raised thereon be withdrawn as his stand that he was not absent appears to be correct etc. The District Industries Officer, Mathura and Mainpuri were directed by this committee to clear off the T.A. bills etc. and his absence be regularised and he be given his due increments. Learned counsel for the petitioner, therefore, submitted that these facts clearly established beyond any doubt whatsoever that the petitioner was really a harassed employee, hence, a committee was constituted to look into his grievances. There is substantial force in this contention i.e. some persons were instrumental in getting the petitioner sacked through Government by passing the appointing authority as the same was in the know of the correct facts and the above referred material was, there fore, never placed before the State Government, otherwise there was no reason as to why the State Government should have considered some nonexistent or stale material for the purpose of assessing the suitability of the petitioner. Hon''ble Supreme Court dealing with somewhat identical situation in the case of Ishwar Chand Jain v. High Court of Punjab & Haryana and another. (1983 (3) SCC 370), set aside the order of termination on the ground that since the relevant material had not been taken into consideration in assessing the satisfactory work and conduct of the officer, rather irrelevant material was considered, therefore, the same was vitiated. The finding recorded by the Tribunal in this case upholding the order of termination is wholly perverse and thus liable to be quashed.
It was next contended that the learned Tribunal failed to record a finding on the issue that the order of termination is punitive in nature, and thus violative of Articles 311 (2), 41 (Sic, 14) and 21 of the Constitution of India and since juniors were retained in service, therefore, it also suffers from the vice of arbitrariness and discrimination. Petitioner had rendered more than 13 years of satisfactory service, though temporary, therefore, the termination of his service is clearly on the foundation of the alleged charges/allegations which have been set out in the written statement/supplementary counteraffidavit filed before the learned Tribunal and cannot be accepted as termination simplicitor. The question for determination, therefore, is whether the impugned order is an order of termination simplicitor or it is punitive in nature. In support of the said contention, it was contended that the law is now well settled that the Courts can always lift the veil to find out whether the same is an order of termination simplicitor or is by way of punishment and if the Court comes to the conclusion that the order of termination or discharge was made with the object to punish the employee for some misconduct, it can always go behind the terms of the order of termination and examine all the attending circumstances to find out whether the form of the order was only a camouflage for an order of dismissal for, misconduct or otherwise. He submitted that since the opposite parties themselves had placed before the Tribunal some adverse material against the petitioner by stating that his services were not satisfactory and several warnings were given to him, the Tribunal was obliged to have examined whether the same formed the motive for the termination of the services or was the foundation for the same. Referring to the various decisions of the Hon''ble Supreme Court on this aspect of the matter right from the Constitution Bench decision in the cases of Purushottam Lal Dhingra v. Union of India, reported in AIR 1958 SC 36, Jagdish Mittar v. Union of India, reported in AIR 1964 SC 450, Shamsher Singh v. State of Punjab reported in 1974 (2) SCC 831, Nepal Singh v. State of U.P. reported in 1985 (1) SCC 56. Learned counsel submitted that there can be no doubt from the perusal of the affidavit filed by the opposite parties that the conduct of the petitioner was not the motive but it was the foundation for passing the impugned order. I have perused the decisions from which it is clear that the law is now settled that if the innocuous order is grounded upon features which result into stigma against the affected officer then such an officer is entitled to defend himself in proceedings provided under the rules applicable to him, his services cannot be terminated without enquiring into his conduct. In the present case, petitioner had placed material before the learned Tribunal showing that he was being harassed by certain officers and, therefore, a committee was constituted to look into his conduct and while the same was in progress, his services were terminated without considering the said material. It was vehemently argued that this is not a case of termination simplicitor but is that of clear violation of Article 311 (2) of the Constitution of India. In the case of Nepal Singh (supra) Hon''ble Supreme Court held as hereunder:
�The State and 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 in definable material, objectively assessed and relevant to the ground on which the termination is effected.�
On the question that there has been clear violation of Articles 14 and 16 (1) of the Constitution of India, learned counsel referred to the following observations of Hon''ble Supreme Court in the case of The Manager Govt. Branch Press and another v. D.B. Belliappa:
�In our opinion no such generalisation can be made. The protection of Articles 14 and 16 (1) will be available even to such a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors , similarly circumstanced. It is true that the competent authority had the discretion under the conditions of service governing the employee concerned to terminate the latter''s employment without notice. But such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Arts. 14 and 16 (2).�
Learned Standing counsel however placed reliance on the decision of Hon''ble Supreme Court in the case of State of U.P. v. Kaushal Kishore Shukla reported in 1991 (1) SCC 691 wherein it has been held by Hon''ble Supreme Court that a temporary employee has no right to hold the post and, therefore, his services can in law be terminated in accordance with the relevant service rules and terms of contract of service. If on perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.
I have gone through the judgment of Kaushal Kishore Shukla (supra). In that case the order of termination was defended by the State on the ground that the employee''s work and conduct were not satisfactory and he was unsuitable for service, therefore, his services were terminated. To support that contention, the State placed reliance on the adverse entry awarded to the employee in the year 197778 and also on the allegations made against him with regard to the audit of the Boys Fund of an educated institution. It was found as a fact that the conclusion of the appointing authority about the unsuitability of the employee was based on relevant material. In such a situation, the order of termination could not be rendered illegal merely on the ground that junior persons to the employee in service were retained. The principle of �last come first go� would not be applicable to a case of termination of service of a temporary employee on the ground of unsuitability on assessment of his work and conduct. If out of several employees working in a department senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors, who may be found suitable for the service. Such a procedure would not be violative of the principle of equality enshrined under Articles 14 and 16 of the Constitution. Such is not the position in the present case because as noticed above, it is not known as to whether any material was placed before the State Government and if so, what was the material on which the State Government is said to have applied its mind, and came to the conclusion that the petitioner was unsuitable. In my view, the decision of Hon''ble Supreme Court in the case of Ishwar Chand Jain and Nepal Singh (supra) is fully applicable to the present case.
Lastly, the learned counsel for the petitioner contended that the ''Director being the appointing authority of the petitioner, his services could not have been terminated by the Joint Director and that too, without application of mind. Faced with the difficulty that this point was not argued before the learned Tribunal as the counsel for the Petitioner did not press this point and confined his arguments only to one point that the authority terminating the services of the petitioner did not apply his mind and the order of termination was passed on the dictate of the Secretary Industries. Sri S.M.K. Chaudhary vehemently submitted that from the perusal of the judgment of the learned Tribunal, it is clear that firstly, it is not a case of concession made by a counsel because several times, it happens that the learned counsel argue only one point or some points but do not argue other/all the points, it does not mean that the counsel had conceded on the points which he did not argue. Present case is one of those cases where the counsel chose to argue one point which he thought was sufficient to invalidate the impugned order and he did not argue rest of the grounds. Thus under no circumstance, it could be said that this is a case where the point has been conceded or given up i.e. that the Joint Director alone was the appointing authority of the petitioner. He contended that concession against law even by a counsel has no meaning. According to him, assuming though not admitting that this is a case where the learned counsel conceded or gave up the point even then it is open to the petitioner to raise the same before this Court being a pure question of law since it goes to the root of the matter. It would be sufficient for the present purpose to notice the Constitution Bench decision of Hon''ble Supreme Court in the case of Scientific Advisor to the Ministry of Defence v. S. Daniel reported in 1990 (supplementary) SCC 380 wherein it has been held that when the issue goes to the root of the matter, the question can very well be agitated though not argued at the initial stage. In my view, the question as to who was the appointing authority of the petitioner and whether it applied its mind before passing the order does go to the root of the matter and, therefore, it is open to the petitioner to argue the same before this Court when it was specifically pleaded in the claim petition.
Reference was made to the copy of the appointment letter annexed as Annexure3 to the present Writ petition which goes to show that the petitioner was factually appointed by the Director of Industries vide orders dated 1041956 and his name finds place at serial no. 9 indicating his pay scale as Rs. 605120. It is Director Industries, who issued the seniority list of the petitioner and sanctioned leave to him. The stand taken by the opposite parties and as discussed in the impugned judgment that the power of appointment was since delegated to the Joint Director and, therefore, the latter became the appointing authority of the petitioner has been repelled and contradicted by the learned counsel for the petitioner by submitting that the Constitutional guarantee under Article 311 (1) of the Constitution has to be reckoned as on the date of appointment. In the case of Krishna Kumar v. Divisional Assistant Electrical Engineers another reported in 1979 All India Service Law Journal 532, Hon''ble Chandrchud C.J. (as he then was) speaking for the Bench held as follows:
�it is urged that since the Div. Asstt. Elect. �Engineer has been given the power to make appointments to the post of the Train Lighting Inspector, he would have the power to remove any person from that post. We cannot accept this contention. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Art. 311 (1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to .that which appointed him. The subsequentauthorisation made in favour of respondent no. 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him.�
The said decision has been followed by this Court also in the case of Jagdish Kumar v. U.P. Public Services Tribunal and others reported in, I983 (1) LCD 300 and the order of termination passed by an authority who was not the competent authority who had factually appointed the petitioner in the year 1968 was quashed for this reason alone. The termination of the services by an authority to whom the power was delegated subsequently was found not competent to terminate the services of the said employee. The stand of the opposite parties that the power of appointment was delegated by the State Government to the Joint Director, has also been repelled on the ground that no doubt the power to appoint was delegated but then the delegation is firstly subsequent in point of time and secondly, the power to inflict punishment was never delegated as is clear from the notification dated 1431959. A copy of the said notification has been annexed as Annexure5 to the rejoinderaffidavit filed by the petitioner before this Court. This notification has been issued under Article 309 of the Constitution and deals with the delegation of power to various authorities for the purpose of making appointments to various posts in ministerial and subordinate services in the Directorate in Industries. Learned counsel for the petitioner referred to a relevant paragraph where it has been clarified as follows:
�No. 18 HV XVIII 41145/57.
Copy forwarded to the Director of Industries, U.P., Kanpur for information and necessary action with remark that it should be made clear to the officers to whom powers are being delegated that they cannot inflict the major punishments of removal and dismissal on the existing staff which was appointed by an authority higher than them and that such cases will continue to be dealt with by the original appointing authority.�
It has therefore been submitted that in the light of this clause in the delegation order, it is clear that the Director and Director alone could have terminated the services of the petitioner and in the present case, the admitted position is that the order of termination has been passed by the Joint Director.
I have perused the order of appointment and the notification delegating the power of appointment and am of the view that the petitioner''s contention has merit that since the petitioner was appointed by the Director of Industries, which is an admitted fact, and the power of inflicting major punishment of dismissal, termination or removal was since not delegated to subordinate officers, alongwith delegation of the power to appoint, therefore, the termination of the petitioner''s services by a lower authority i.e. Joint Director, Industries is clearly illegal and contrary to the mandate of the Constitutional guarantee. Therefore, the impugned order ought to have been quashed by the learned Tribunal on this ground itself and its finding that even otherwise from the perusal of the record, we find, that the claimant was promoted by Joint Director on the promotional post and therefore, he becomes the appointing authority though the appointing was the Deputy Director is erroneous and liable to be quashed.
During the pendency of this writ petition, petitioner died on 19 1992 and his legal heirs were brought on record.
In the light of the aforesaid findings, the writ petition is allowed and the order dated 381970 terminating the services of the petitioner and the judgment dated 2251980 are hereby quashed, and the petitioner shall be deemed to be in service as if his services were never terminated. The respondents are directed to calculate the arrears of salary & all other consequential benefits treating the petitioner to have continued in service till the date he died on 1971992. The monetary benefits so calculated shall be paid to the legal heirs of the petitioner within a period of four months from the date a certified copy of this order is produced before the authorities. Since the petitioner has died, therefore, his widow shall also be entitled to family pension in accordance with law. Her pension be also fixed within the aforesaid period. Costs easy.