Meraj Ahmad vs State of U.P.

Shabihul Hasnain, J.—Petitioner joined as ''Vaccinator'' in the Animal Husbandry Department, Gonda. He continued to work as a temporary employee when he was implicated in a criminal case on 27.3.1984. On 9.4.1984 petitioner''s services were terminated by Deputy Director, Animal Husbandry Department by an order of termination simpliciter . The petitioner remained in jail from 27.3.1984 till 11.10.1985 when he was acquitted in S.T. No. 102 of 1984 by Special Sessions Judge, Sultanpur. A criminal appeal was filed by the State against the judgment and order dated 11.10.1985 but the same was rejected by the High Court on 17.9.1986. On acquittal the petitioner submitted an application to the District Live Stock Officer, Sultanpur for joining his services on 30.10.1985. Nothing was done. Petitioner submitted another representation on 8.11.1985 before the Director, Animal Husbandry. When no action was taken petitioner filed a Writ Petition No. 8550 of 1987 before the Hon''ble High Court. Meanwhile, on 7.2.1989 the Additional Director, Animal Husbandry, Lucknow gave fresh appointment to the petitioner on his undertaking dated 7.2.1989 that he wilfully accepts fresh appointment on the post of ''Pasudhan Prasar Nirikshak''. On this assurance a fresh appointment letter was issued on 17.4.1989. The petitioner joined on the post of 19.4.1989. Later on Writ Petition No. 8550 of 1987 was decided on 4.9.1988. The Hon''ble High Court vide its order dated 4.9.1998 passed following order:

This writ petition is finally disposed of with the direction that if only the ground of termination of the services of the petitioner was on account of his involvement in the murder charge he shall be taken back in the service provided there is no other impediment in allowing him to join the service.

Petitioner filed representation on 27.9.1998 before the Deputy Director, Devi Patan Mandal, Faizabad along with the order passed by this Hon''ble Court praying for continuity in service. The petitioner says that his representation has not been decided and he is not being given the continuity of service. Counter affidavit has been filed by the opposite parties. The opposite parties have taken two grounds, firstly that the working of the petitioner was dissatisfactory and secondly, there was an adverse entry against the petitioner.

Sri. Abid Ali has forcefully argued that these averments in the counter affidavit are absolutely false and can be rebutted easily. He says that petitioner started working in 1979 and there has been no complaint against him till the date of termination. So far the adverse entry is concerned the petitioner has drawn the attention of the court towards C.A.-2 to the counter affidavit filed by the learned Standing Counsel. Adverse entry was never communicated to the petitioner. Moreover, on closer look it does not appear to be an adverse entry at all. Petitioner entered into a scuffle on which he was transferred. There was some inquiry to be made but it is not clear whether any inquiry was conducted or not. If any inquiry was conducted termination will become a major punishment and not the termination simpliciter . In any case it cannot be treated as an adverse entry.

Petitioner further submits that his services were terminated on 9.4.1984 while he was arrested for a criminal case on 27.3.1984. There is very close proximity between two dates. The termination was solely based on the reason that the petitioner was found involved in a criminal case. The two dates are so close that it cannot escape the imagination of anybody that there is a relationship between the cause and action.

Sri. Abid Ali has argued that Hon''ble Supreme Court in a number of cases has held that if the court finds relationship between the termination order which apparently simpliciter and there is a reason and cause for which the order of termination simpliciter has been passed then the court should lift the veil and find the real motive of the employer.

In Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, , it was laid down that a Court or Tribunal is entitled to find out the true nature of the termination order, namely, whether it is punitive or not. In this regard, the form of the order will not be decisive and the Court can lift the veil to see the true nature of the order. The Court observed that the substance, not semblance, governs the decision.

In Madan Gopal Vs. State of Punjab, , the order by which the services of the employee were terminated was an order simpliciter in nature, which was innocuously worded, but it was held by this Court that the form of the order was not decisive and the Court could go behind that order to find out whether it was founded upon the misconduct of the employee.

In two other cases namely, The State of Bihar Vs. Gopi Kishore Prasad, and Samsher Singh Vs. State of Punjab and Another, , the question of termination of services of a probationer was considered and it was laid down that the form of order was not conclusive and the court could go behind the order to find out the real foundation of that order.

In the same year, came the seven-Judge Bench decision of this Court in Samsher Singh Vs. State of Punjab and Another, , in which "Motive" and "Foundation" theory was reiterated and it was laid down that the question whether an order terminating the services of a temporary employee or a probationer was by way of punishment or not would depend on the facts and circumstances of each case.

Commissioner, Food and Civil Supplies, Lucknow, U.P. and Another Vs. Prakash Chandra Saxena and Another, , so as to trace the development of law relating to this aspect of service jurisprudence, laid down that there has not been any conflict of opinion inter se various judgments including those laying down the "motive" and "foundation" theory. It was held that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances.

.............In The State of U.P. Vs. Ram Chandra Trivedi, , in which it was contended that the legal and constitutional position with regard to an order of termination was not settled as there were conflicting decision of this court on that question. This contention was not accepted and on a review of entire case law, including the seven Judge Bench decision in Shamser Case Supra, it was laid down that Court has consistently held that the "motive", in passing an order of termination or reversion, operating in the minds of the Government was not a relevant factor for determining whether the order was passed by way of punishment. What was determinative of the true nature of the order was not its exterior form but the "foundation" on which it was based. If misconduct or negligence was the foundation of the order of termination, for that matter, reversion, the order would be punitive in nature.

In Anoop Jaiswal Vs. Government of India and Another, 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. Thus, it was observed, made the impugned order punitive in nature and was, therefore, held to be bad.

In the present case it is clear that the involvement of the petitioner in a criminal case was the motive and basis after passing the termination order. The earlier court in Writ Petition No. 500 of 1987 has already passed an order that if the termination has been passed solely on the ground that the, petitioner was involved in a criminal case then the opposite parties shall take back the petitioner on his original post. This was subject to the legal impediment, if any. Opposite parties have taken a contention that petitioner is estopped by virtue of principle of estoppell for continuity in service. It was contended that once petitioner agreed for fresh appointment now he cannot claim for continuity in service. By accepting the fresh appointment he has rescinded his right to claim continuous service. The court is of view that at the time when the petitioner was offered for a fresh appointment, he was in dire need of money to nurture and feed his family. Thus, consent of petitioner was not free consent but suffering from undue influence. The agreement, by which the opposite parties offered fresh appointment in consideration of withdrawal of writ petition by petitioner from High Court, is also in violation of section 28 of Indian Contract Act, 1872, which is as follows:

Section 28 in The Indian Contract Act, 1872.

Agreements in restraint of legal proceedings void.--

Every agreement,

(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or

(b) which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.

Exception 1.- This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.

Exception 2.- Nor shall this section render, illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.

Thus, being in violation of Section 28, this agreement is void.

This agreement also hits the fundamental right of the petitioner, specifically Article 32, to approach a court of law. Being against the spirit of constitutional provisions, this agreement is bad in law.

The legal impediment which has been shown by the opposite parties in the counter affidavit are totally baseless. It is clear that the petitioner''s services were terminated only because of his involvement in the criminal case. In that case the petitioner has been acquitted and the criminal appeal against acquittal filed by the State has been dismissed. These facts are not disputed. As such a situation the very basis and reason for which the petitioner''s services were terminated goes and vanishes. In such a situation, the court has no other option except to reach to the conclusion that the order of termination simpliciter dated 9.4.1984 was bad.

Therefore, the termination order dated 9.4.1984 is set aside.

The opposite parties shall allow the petitioner continuity of service from the date his services were terminated i.e. 9.4.1984. However, since the petitioner has not worked during the period when he was terminated and the date on which he had joined afresh no salary will be payable to him. For other purposes the services of the petitioner will be counted as continuing. All other natural consequences shall flow in favour of the petitioner. Accordingly, the writ petition is allowed.