Raj Kumar Gupta vs State of Himachal Pradesh and Others

C.R. Thakur, J.—The only point that arises in this writ petition filed by Shri Raj Kumar against his termina tion from service as a Clerk in the unified grade in the Chopal Forest Division is whether during the pendency of the disciplinary proceedings the services of an employee can be terminated by giving one months notice as required under Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965.

The Petitioner was appointed as a Clerk in the unified grade in the office of the Divisional Forest Officer (Respondent No. 4) on 25-11-1965. Vide Annexure P.E./24, dated 31-3-1971, the Chief Conservator of Forests, Nahan Circle, issued this memorandum to the Petitioner intimating him that he proposed to hold an enquiry against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 for the charges for misconduct or misbehaviour as set out in the annexure which was annexed thereto. He was also informed to submit his reply to the charges. It was further mentioned that in case he did not appear in person before the inquiring authority or otherwise failed or refused to comply with the provisions of Rule 14 of the Rules of 1965, or the orders/direction issued, the inquiring authority may hold the inquiry against him exparte. Vide Annexure P.E./25, dated 28-10-1971 Shri I.D. Sharma, P.F.S. (I) was appointed as Inquiry Officer to enquire into the charges. In para 6 it has been averred that the said inquiry is in progress and has neither been dropped nor completed and it was during the continuance of the enquiry that this impugned order terminating his services has been passed on 26-7-1972. According to the Petitioner this order has been cloaked to be issued under a colorable exercise of the powers by Respondent No. 3 under Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965. The Petitioner made a representation to Respondent No. 3 through Respondent No. 4 on 8-8-1972 but to no avail. He also met Respondent No. 2 in this behalf but no hearing was granted to him and hence he has filed this petition challenging this order on the ground that the same amounts to removal by way of punishment without affording any opportunity for being heard. The office order was not necessitated either due to abolition of the post or due to non-suitability of the Petitioner or due to any other valid reasons. He has been singled out arbitrarily for such termination in discrimination to his juniors out of continued malice and ill-will on the part of Respondents 2 to 4. It was averred that the termination of the services of the Petitioner was byway of punishment which was apparent from the proceeding and attendant circumstances mentioned in the petition. It was averred in para 5 that there were several juniors to him but they have been retained in service but: he had been singled out.

The order whereby his services have been terminated reads as under:

"Office Order Mo. 72/72-73 dated Nahan the 26th July, 1972 by Shri V. Raina, I.F.S., Conservator of Forests, Nahan Circle, Nahan, Himachal Pradesh.

In pursuance of sub-rule (1) of rule 5 of Central Civil Services (Temporary Services) Rules, 1965, I hereby give notice to Shri Raj Kumar Gupta, Clerk unified Grade, Chopal Forest Division that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on or tendered to him.

Sd V. RAINA, Conservator of Forests, Xahan Circle, Nahan.�

The order on the very face of it is quite innocuous and does not cast any stigma on the Petitioner, but his submission is that an enquiry was being held and once an enquiry was instituted the services of the Petitioner could not be terminated in such a marner without affording him any opportunity. According to him the motive behind the order was to punish him and that it was quite clear from the enquiry instituted and the Respondent without awaiting for the result of the enquiry chose to terminate the services of the Petitioner in order to avoid the cumbersome procedure of Article 311 of the Constitution of India.

The Petitioner has stated in para 5 of the petition that Respondent No. 3 transferred the Petitioner from Nahan to Chopal on 29-8-1967 by way of punishment although the transfer order passed by Respondent No. 3 was innocuous but the motive behind it was to punish the Petitioner in an unlawful manner. Such reasons for transfer were communicated by Respondent No 3 vide his D.O. letter No. 67/st., dated 4-8-1971 to Respondent No. 2. On 12-9-1967 the Petitioner applied to Respondent No. 2 through Respondents 3 and 4 for his early transfer from Chopal as it was a remote station in the interior of Himachal Pradesh, but his request was rejected. Again the Petitioner made a request for his transfer on 13-3-1969 vide Annexure P.E./4 but he did not receive any reply and hence he filed a representation to the Forest Minister on 24-5-1969, but still nothing was done for considerable time. Then he again applied for transfer on the ground of sickness and financial hardship or to grant him six months'' long leave. Since there was no response he again made a further application on 10-8-1971 either to transfer him or to grant him leave. Respondent No. 3 on 25-8-1971 referred the Petitioner to the District Medical Officer, Mahasu district, at Simla, for medical opinion, who referred him to the Himachal Pradesh State Hospital Snowdon, Simla, to undergo a thorough medical check-up. There he remained under examination and treatment for a considerable time as an out-door patient and the report of the Medical Officer which is Annexure P.E./10, reads as under:

Shri Raj Kumar Gupta Clerk, appeared today the 23rd Sept., 1971. He is suffering from Seb. Dermatitis Scalp which requires prolong treatment and periodical check-up by the Skin Department at H.P. State Hospital, Simla.

It was communicated to Respondent No. 3. The Petitioner further expressed his difficulties and requested for transfer within 60 days failing which he would be compelled to proceed on leave with effect from 1-12-1971, as already applied for. Thereupon he was informed on 5-11-1971 by Respondent No. 3 that his transfer case would be considered in March/April, 1972. Further he was intimated that leave would be allowed only for the period recommended by the District Medical Officer, Mahasu, and he was also further directed to obtain a medical certificate from the District Medical Officer, Mahasu, failing which the leave would be treated as wilful absence from duty followed by a disciplinary action for misbehaviour and the copy of the same is Annexure P.E./12. According to the Petitioner this was a predetermination on the part of Respondent No. 3 and which was certainly malicious and hostile and it was passed with ulterior motive. The Petitioner again conveyed his difficulties vide his letter, dated 18-11-1971, copy of which is Annexure P.E./13. Since the Petitioner did not receive any reply to his letter, he wrote vide Annexure P.E./14, dated 11-1-1972 to sanction the leave failing which he would be compelled to proceed on leave in anticipation of the sanction. In between he applied for four days'' casual leave, which was, however, sanctioned. The Petitioner submits that due to prolonged treatment at his native place at Shahabad in District Karnal (Haryana) he was unable to resume his duties on 27-1-1972. On 4-2-1972 Respondent No. 4 sent him a telegram with copy to Respondent No. 3, which is as under:

Being treated wilfully absent. Resume duty at once.

Forest Officer.

The confirmatory copy of the said telegram Annexure P.E./15 is as:

He (Petitioner) is being treated absent from Government duty at his own risk as he was due to resume duty on 27-1-1972.

Thereafter the Petitioner sent his reply the same day in which he intimated that he was sick and was under medical treatment and as such was unable to resume duty. He made a further request for grant of leave in his favour vide Annexure P.E./16 which was accompanied by a medical certificate Annexure P.E./17. Respondent No. 4 refused to consider his request for leave unless he got himself treated at the Himachal Pradesh State Hospital at Simla and further his application should be supported by a medical certificate to that effect. Further he was informed that he was himself absent from duty at his own risk, vide Annexure P.E./18. The Petitioner again vide Annexure P.E./19, dated 25-3-1972, conveyed his difficulties in the matter. On 3-4-1972, the Petitioner sent a telegram to Respondent No. 4 as a reminder to his letter, dated 25-3-1972, but Respondent No. 4 again refused to consider his case and repeated the same order as was conveyed to him on 16-3-1972. Again the Petitioner sent a reply on 12-4-1972 stating therein the reasons for his absence which were beyond his control, and he, therefore, prayed for grant of leave vide Annexure P.E./21. Again Respondent No. 4 on 5-6-1972 repeated the same earlier order. It was also mentioned therein that Respondent No. 4 had not received any application for extension of leave beyond 31-3-1972 vide Annexure P.E./22. The Petitioner submitted hisreply on 15-6-1972 explaining the circumstances and the reasons therefore and the same is Annexure P.E./23. The Petitioner, therefore, has averred that his transfer to Chopal was by way of punishment without affording any opportunity to show cause, as also his non-transfer from Chopal even after the orders of the Government and the assurances of Respondents 2 to 4 for the aforesaid reasons. He has further averred that the non-sanctioning of the leave in the circumstances is also punitive, hostile, malicious and with ill-will for collateral and ulterior motive.

The facts about the transfer and the non-sanctioning of the leave are admitted, but it is stated that the leave could not be granted without the medical certificate and the certificate which the Petitioner had submitted with his application was from a private practitioner for recommending two days'' leave earlier and the subsequent applications were also not supported by medical certificates. The Petitioner though applied for extension of leave by application, dated 6-9-1967, but there were no reasons given why the leave was required. He reported his arrival on 11-9-1967 after availing nine days leave but without any proper sanction for two days absence which although were gazetted holidays. According to the report of the Divisional Forests Officer, Nahan, the Petitioner during the period of his absence was found at Simla on 1-9-1967 approaching the higher authorities for cancellation of his transfer orders to Chopal Division. Therefore, it was apparent that he was not ill but was trying to get his transfer orders cancelled and this avoiding to comply with the transfer orders. Thereafter he was charge-sheeted under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for wilful absence from duty and for leaving the headquarters without prior permission and for the deception of his employer. Enquiry was instituted and the Inquiry Officer submitted his report on 4-11-1968 holding that the charges were proved. However, the disciplinary authority imposed a minor penalty of censure and treated the period of his wilful absence as on leave without pay and allowance. It was again admitted that the Petitioner was not allowed to cross the efficiency bar because there were some cases of forgery, tampering of Government record and misusing the official position, pending against the Petitioner and which were pending even at the time of the filing of the reply to the petition. It is further stated that the Petitioner is avoiding the present enquiry instituted against him. It was further averred that the Petitioner proceeded on leave and he had been absenting himself from time to time without any justification. It was averred that the Petitioner was not declared a quasi-permanent because he was not found fit as there were cases of forgery, etc. against him and which are still under enquiry. The Respondents filed the copy of the note, dated 1-10-1971, Annexure R.S., which says that Shri Raj Kumar has been charge-sheeted for forgery in the record and his explanation is still awaited. This case was also kept pending till the decision of the present enquiry against the Petitioner. It was further averred that the Petitioner''s conduct and behaviour had become a problem in the department. It was admitted that he was referred to the Medical Officer, Mahasu, who opined that the Petitioner was really suffering from skin disease. However, he never recommended his transfer from Chopal and as such the action of Respondent No. 3 was not at all malicious and hostile or based on ulterior motive. According to the reply, the Petitioner had been absenting himself quite often and, therefore, it was pleaded that there was no alternative but to serve him with one month notice for termination of his services in pursuance of Sub-rule (i) of Rule 5 of the Rules of 1965, and accordingly his services were terminated on 5-9-1972 (A.N.) It was stated that the Petitioner was proceeded against departmentally for having forged and tampered with the Government record and for misusing his official position, and this was done at the instance of the enquiry made by the Anticorruption Department. The Petitioner was avoiding to submit his defence statement till 14-10-1971. On receipt of his defence statement an Inquiry Officer was appointed on 28-10-1972. The Petitioner after attending the enquiry at Nahan proceeded on casual leave, but after the expiry of the leave he did not resume duty on 27-1-1972 but continued to remain absent thereafter wilfully and did not join his duty despite repeated orders. In fact the Petitioner was avoiding to face enquiry pending against him and these were his tactics to delay it indefinitely.

Therefore, from the aforesaid resume of the facts as given in para 5 of the petition and the reply thereto it is evident that at the time when the services of the Petitioner were terminated an enquiry was pending agaist him. He had been absenting himself without leave and further he had been avoiding to face the enquiry as stated by the Respondents at the fag end of their reply to para 5. Under para 4 of the Memorandum, dated 31-3-1971, whereby an enquiry was proposed to be held against the present Petitioner it is said that if the Petitioner absented himself and did not appear in person before the enquiring authority then it was open to the enquiring authority to hold the enquiry against him ex-parte, therefore it was not open for the Respondents to dispense with his services on the ground that he did not appear before the Inquiry Officer.

In para 6 the averments are with regard to the enquiry ordered by Respondent No. 3. The enquiry is still in progress and has neither been dropped nor withdrawn. He has made a grievance that his services have been terminated by way of removal punishment without affording any opportunity to him for being heard. Further it had been averred in that para that the office order had not been passed in the ordinary course of administrative routine or in the exigencies of the service. The said order was necessitated neither due to abolition of post nor due to non-suitability of the Petitioner nor due to any other valid reasons. He had been singled out arbitrarily for such termination/removal/punishment in discrimination to his juniors out of continued malice, ill-will and hostility of Respondents 2 to 4. The reply to this para is that the Petitioner was wilfully absent from duty since January, 1972, therefore, the notice of termination was served on him by registered A.D. post and which was received by him at his home on 5-8-1972. It is further quite apparent that even if the Petitioner was wilfully absenting himself it was necessary for the department to have taken disciplinary action against him. His services could not be terminated like that when it was on the ground of his wilful absence from duty. He was entitled to a notice calling for his explanation.

In para 9(f), the averment is that the impugned order is against the principles of natural justice and rule of law and in the circumstances preceding and attendant thereto the impugned order necessitated a thorough examination and consideration by the Court. The reply to this is that the Petitioner was avoiding to face the departmental enquiry and for the reason he wilfully absented himself from 27-1-1972 onwards and hence the order of termination of the services of the Petitioner is in order. Therefore, from this reply it is quite apparent that this order of termination has been passed because of the wilful absence of the Petitioner and further not to appear before the Inquiry Officer. But, as already stated above, the services could not be terminated that way because it had been specifically pointed out in para 4 of the Memorandum, Annexure P.E./24, that in case he failed to appear in person before the enquiry authority then the enquiring authority may hold the enquiry against him ex-parte. So, it is quite apparent that this order has been passed because he failed to appear before the Inquiry Officer.

Shri H.K. Paul appearing on behalf of the Advocate-General for the State submits that this order is not passed by way of penalty and, therefore, Article 311 is not attracted. The learned Counsel for the Petitioner submits that the motive behind the order was to punish him for his wilful absence and to avoid putting in appearance before the Inquiry Officer. As already stated above, the pleadings of the parties make it clear that this order was passed-when he failed to appear before the Inquiry Officer and had been absenting himself and, therefore, this is nothing but an order passed by way of punishment and it can be said that the very motive behind this order was to punish him for his wilful absence and not because of any other reason, no doubt, the order is couched in quite innocuous words and it appears to be an order of termination simpliciter. But the attendant circumstances, as already pointed out above, clearly indicate that it was an order passed by way of punishment.

The learned Counsel for the Petitioner has referred me to a number of cases on the point that the Court has to look to the attendant circumstances to find out whether the very foundation of the order was to punish the Petitioner for the misconduct for which an enquiry was pending. It will not be necessary to refer to all those authorities because they have all been considered in the latest judgment of the Supreme Court, The State of U.P. Vs. Ram Chandra Trivedi, . The learned Counsel for the State also placed reliance on this authority and, therefore, the other authorities cited by him will also not require any reference. The facts of the aforesaid case were that Ram Chandra Trivedi was appointed as a temporary clerk in Canal Division, Jhansi, on May 16, 1954. Seven year later, he was required to appear in a departmental examination which was held in July, 1961. On July 12, 1961, an optional typewriting test was held by the Department. In that test the Executive Engineer, Investigation and Planning Division, Jhansi, allegedly detected one Gopal Deo Santiya, a clerk Bhander Canal Division, attempting to personate and appear for Ram Chandra Trivedi. He obtained the explanation of both the clerks and reported the matter to the Superintending Engineer of his Division. Considering the explanations tendered by the clerks to be unsatisfactory, the Superintending Engineer brought the matter to the notice of the Chief Engineer, Irrigation Department, Lucknow. The Chief Engineer wrote back to the Superintending Engineer asking him to award suitable punishment to the aforesaid two clerks. The Superintending Engineer thereafter issued orders terminating the services of both the clerks. The order that was passed in respect of and served on Ram Chandra ran as follows:

"No. E-70/IV/259 Dated Jhansi, November 29, 1961.

OFFICE MEMORANDUM

Shri Ram Chandra Trivedi, Temporary Clerk is hereby served with one months'' notice to the effect that his services shall not be required after one month from the date of receipt of this Notice.

Sd/- D.P. SAHNI, Superintending Engineer.

Ram Chandra filed representations to the Chief Engineer and Minister concerned which proved abortive. Thereafter he filed a suit challenging the order of termination of his services pleading that the order not being an order of termination of his service simpliciter but being one passed by way of punishment, attracted the applicability of Article 311 of the Constitution which not having been complied with rendered the order void and ineffective in law. The defence taken by the State was that Ram Chandra was only a temporary hand; that under the contract of service as also the rules applicable to temporary Government servants, he was liable to be discharged any time even though an enquiry in respect of a charge of misconduct might have been instituted against him; and that the impugned order not having been passed as a measure of punishment but being a simple order of termination of his services without casting any stigma on him or visiting him with evil consequences, was valid both under the aforesaid rules and the contract of service. The trial court dismissed the suit. An appeal to the District Judge was also dismissed. Thereafter he preferred an appeal to the High Court and the same was allowed by a Single Judge, The learned Single Judge went through the official correspondence preceding the passing of the impugned order and observed that a close scrutiny of the facts on record showed that the order was passed by way of punishment on the basis of the enquiry proceedings and as a result of the recommendation made by the Executive Engineer followed by the direction issued by the Chief Engineer that Ram Chandra should be suitably punished. It was against that judgment and decree that the State of U.P. preferred an appeal to the Supreme Court.

Their Lordship''s of the Supreme Court considered a number of cases of the Supreme Court right from 1953, besides one case of Bombay High Court. In para 15 of the judgment while dealing with the case of State of Punjab and Another Vs. Shri Sukh Raj Bahadur, it was observed that in that case, Mitter,J. who disposed of the case laid down the following propositions:

"1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.

The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

If the order visits the public servant with evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishenent, no matter whether he was a mere probationer or a temporary servant.

An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.

If there be a full-scale departmental enquiry envisaged by Article 311, i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.

In para 16 their Lordships observed that the principles laid down in Parshotam Lal Dhingra Vs. Union of India (UOI), Champaklal Chimanlal Shah Vs. The Union of India (UOI), and Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta, were reiterated by the Supreme Court in Union of India v. R.S. Dhaba The State of Bihar and Others Vs. Shiva Bhikshuk Mishra, and R.S. Sial Vs. The State of U.P. and Others, where it was laid down that the test for attracting Article 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.

In a recent decision of the Supreme Court in The Regional Manager and Another Vs. Pawan Kumar Dubey, also the same principle was enunciated.

In Samsher Singh Vs. State of Punjab and Another, a larger Bench consisting of seven judges of the Supreme Court held that the form of the order was not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in certain circumstances amount to infraction of Article 311.

Therefore, from the aforesaid observations of their Lordships of the Supreme Court in various rulings and especially in Shamsher Singh (supra), this Court can probe into the circumstances preceding and attendant to the passing of the order. I have already given the facts as pleaded by the parties in paras 5 and 6 of the petition as also the reply given by the Respondents thereto, and it is abundantly clear from the material on the record that the Petitioner had been served with a charge-sheet, an enquiry was ordered against him vide Annexure P.E./24, and Shri I.D. Sharma P.F.S. (I) was appointed as the Inquiry Officer, to enquire into the charges. The enquiry is still pending. It is admitted by the Respondents also that the enquiry is still pending. The Petitioner was proceeded against for having tampered with the Government record and for misusing his official position. According to the Respondents he was avoiding to submit his defence statement till 14-10-1972 and when he filed his defence statement, the Inquiry Officer was appointed on 28-10-1972. Then during the pendency of the enquiry the Petitioner absented himself and did not join his duty despite repeated orders. He was avoiding to face enquiry pending against him and was employing tactics to delay it indefinitely. I have already stated that his services were terminated because he did not associate with the enquiry although the Inquiry Officer had been given the powers to proceed ex-parte in case the delinquent refused or falied to appear before the Inquiry Officer. So, in these circumstances, in my opinion, keeping the ratio of the aforesaid decisions in view this order clearly amounts to an order of punishment even though the order is couched in quite innocuous words. The Respondents have admitted the fact that since he failed to associate with the enquiry, therefore, his services had to be terminated in terms of Rule 5 of the Central Civil Services (Classification, Control and Appeal) Rules. For the above, I am, therefore, of the view that this order though on the face of it appears to be an order of termination simpliciter but the very foundation of the order is to punish him for not having associated with the enquiry which is still pending and which has not been dropped.

The learned Counsel for the Petitioner had also taken up another ground of violation of the provisions of Articles 14 and 16 of the Constitution, inasmuch as, according to the Petitioner, juniors had been retained in service, whereas the services of the Petitioner who was senior had been terminated without any rhyme or reason. It is not necessary to deal with this point as the Petitioner succeeds on the first point that this order which has been passed to terminate his services is by way of punishment and, therefore, the provisions of Article 311(2) are attracted to the case.

The result, therefore, is that the petition succeeds and the termination order, Annexure P.F./2, is hereby quashed, all the necessary consequences would follow and the Petitioner shall be deemed to have continued in service and shall be entitled to all other benefits accruing by the quashing of the order, dated 26th July, 1972.

No orders as to costs.