Ramniklal G. Gohil vs Dt. Superintendent of Police and Another

Vaidya, J.—Petitioner-Ramniklal G. Gohil, by this writ petition under Articles 14, 16 and 226 of the Constitution of India, has moved this Court challenging the impugned order dated December 15, 1981 terminating his services passed by the District Superintendent of Police, Amreli, respondent No. 1 herein, inter alia praying for (i) quashing and setting aside the same, (ii) granting consequential reliefs by way of reinstatement with continuity of service, full back-wages, and all such other incidental benefits which are due as per the service conditions.

To state few relevant facts - The petitioner was selected by the respondent No. 1 for the post of Unarmed Police Constable and was accordingly appointed on the said substantive post in Amreli on December 3, 1979 alongwith other 23 candidates. After the petitioner joined the service, he was sent for training under the relevant service rules to Baroda Police Training School, where on completion of the training, he was issued a Certificate on November 15, 1980. Once again, the petitioner joined his duties at Amreli. It is further the case of the petitioner that though he was serving honestly, efficiently and diligently, and had given no reason for any dissatisfaction to his superiors, and accordingly, was not served with either any Memo of Notice or adverse remarks, yet all of a sudden, the respondent No. 1 abruptly terminated his services by issuing the impugned order of termination dated December 15, 1981. Feeling aggrieved by the said order, the petitioner preferred an appeal as provided under the relevant service rules before the Deputy Inspector General of Police respondent No. 2 herein. It is further the case of petitioner that though the said appeal was filed in the month of December, 1981, and thereafter despite several reminders being sent and personal inquiries made, the same was not heard and decided. According to the petitioner, the said appeal is not decided even till today! Under the circumstances, getting exasperated over the inaction on the part of the respondent No. 2 in not deciding the appeal, the petitioner was constrained to move this Court by way of this petition.

Mr. B.B. Naik, the learned Advocate appearing for the petitioner, while challenging the impugned order terminating services of the petitioner, submitted that the same is by way of penalty, and in that view of the matter the petitioner''s services could not have been abruptly terminated without affording him reasonable opportunity of being heard. According to Mr. Naik, the service of petitioner came to be terminated on the ground that while filling up the ''Recruit Roll'' [Shakh-Patrak], the petitioner is alleged to have suppressed the material fact regarding he being convicted by the Court of the learned J.M.F.C., Lathi, for the offence punishable under Sections 279 and 337 of the I.P.C. for which he was sentenced to pay fine of Rs. 15/-, etc. Mr. Naik further submitted that when precisely on this count the services of petitioner came to be terminated, it was clear enough to indicate that the same was by way of punishment, and accordingly, the services of the petitioner could not have been terminated without affording him reasonable opportunity of being heard in defence. Mr. Naik further submitted that though this particular vital aspect is intelligently not mentioned in the body of the impugned order of termination, however, the same is quite unwittingly admitted in the affidavit-in-reply, filed by Mr.P.P. Vagh, Home Inspector, Amreli, who in para 4, has in unmistakable terms admitted to the following effect:

"I say and submit that at the time of recruitment, every candidate is required to mention/disclose certain facts in the recruit roll (Shakh Patrak). I say and submit that the petitioner though was convicted for the offence under I.P.C. Sections 279 and 337, did not mention about the same. I say and submit that the petitioner was on probation, and therefore, while he was on probation, a preliminary report was made by the S.D.P.O. after the preliminary inquiry in which also it was mentioned that the case was registered against the petitioner, though apparently, it was a case under Motor Vehicles Act, but the offence was registered u/s 279 of I.P.C. I say and submit that thus on the basis of his performance, and as stated above, his attitude it was thought desirable not to continue him and therefore, the impugned order is passed,"

Mr. Naik further submitted that due to suppression of the above facts, the respondent No. 1 had directed the Home Inspector, Amreli to file a criminal complaint against the petitioner for the offence punishable u/s 145 of the Bombay Police Act, 1951 (which is regarding giving false information while joining service in the Police Department). Accordingly, a criminal complaint was filed against the petitioner in the Court of the learned J.M.F.C., Amreli, which came to be registered as Summary Case No. 123 of 1983, wherein at the end of trial, the petitioner was acquitted on merits by the judgment and order dated September 22, 1983. In this view of the matter, Mr. Naik further submitted that the impugned-order of termination on face of it being patently arbitrary, capricious, illegal and violative of the principles of natural justice, the same deserves to be quashed and set aside. In support of this contention, Mr. Naik has relied upon three reported decisions of this Court rendered in cases of (i) Hiraben Jivanbhai Chaudhari Vs. R.C. Raval, , (ii) Chandubhai Bijalbhai Solanki v. State of Gujdrat and Anr., reported in 1992(1) GLH 661, and (iii) Anopsinh Jatubha v. V.K. Gupta, District Police Officer, reported in (1986) 2 GLR 753. On the basis of these submissions, Mr. Naik finally urged that the impugned order of termination being ex-facie illegal and ab-intio void, the same deserves to be quashed and set aside with further consequential order by way of direction to the respondents to reinstate the petitioner in service with continuity of service and full backwages, etc.

Countering the above submissions, Miss Rekha Doshit, the learned A.G.P. first of all submitted that the petitioner was not entitled to any relief whatsoever as the petition suffers from patent vice of gross delay in approaching this Court against the impugned order of termination. Making good this submission, the learned A.G.P. further submitted that the impugned order came to be passed as far back as on December 15, 1981, while the same came to be challenged before this Court as late as on April 8, 1986, i.e., after span of about 5 years! The learned A.G.P. submitted that taking into consideration this great inordinate delay, the petitioner was not entitled to any relief, more particularly, when such reliefs under Article 226 of the Constitution are purely discretionary one. In support of this contention, the learned A.G.P. has relied upon a decision of the Supreme Court in case of State of Punjab v. Gurudev Singh, reported in AIR 1991 SC 2219. It was next submitted by the learned A.G.P. that the services of the petitioners were purely on temporary basis, which came to be terminated on the ground of unsuitability and the same being the discharge simplicitor and certainly not by way of penalty, it was not necessary to afford any opportunity to the petitioner before passing any order of termination against him. The learned A.G.P. further submitted that in the cases like the present one, where the petitioner was found guilty of suppression of the material fact of having been allegedly convicted and sentenced for the offences punishable under Sections 279 and 337 of the I.P.C., he was per se guilty of suppression of the material fact in furnishing the correct information in the ''Recruit Roll'' (Shakh-Patrak) and therefore, he was not entitled to any relief. In support of this contention, the learned A.G.P. has relied upon three decisions of the Supreme Court rendered in cases of : (i) U.P. Junior Doctors'' Action Committee Vs. Dr B. Sheetal Nandwani and Others, , (ii) Karnataka Public Service Commission and others Vs. B.M. Vijaya Shankar and others, , and (iii) Union Territory of Chandigarh Vs. Dilbagh Singh and others, . On the basis of the above submissions, the learned A.G.P. finally urged that there being no substance in this petition, the same deserves to be dismissed with costs. The learned A.G.P. in the alternative further submitted that in case this Court was not inclined to accept any of her submissions made hereinabove, then in that case, she also opposes the consequential relief by way of backwages to be paid to the petitioner. According to the learned A.G.P., there was nothing on the record to show that the petitioner was not gainfully employed elsewhere. Further, according to the learned A.G.P., it is not difficult to appreciate that if indeed petitioner was not gainfully employed elsewhere, he would not have been able to maintain himself all these years !! The learned A.G.P., under the circumstances, submitted that if this Court was not inclined to accept this submission, then even the petitioner should not be awarded backwages for the period commencing from the date of termination of his service as, strictly speaking, he would be entitled to the same only from the date of filing of the petition before this Court challenging the order of termination. On this point of back-wages, the learned A.G.P. has relied upon a decision of the Supreme Court rendered in case of The Managing Director, U.P. Warehousing Corporation and Ors. v. Vijay Narayan Vajpayee, reported in (1980-I-LLJ-222).

Now turning to the above submissions of the rival parties, first of all it may be stated that it is not possible to accept the contention of the learned A.G.P. that as there was an inordinate delay in filing the present petition, the petitioner was not entitled to any relief. Of course, it is quite true that the impugned order terminating the services of the petitioner came to be challenged before this Court after about five years, but then at the same time, taking into consideration the picture emerging from the averments made in the petition and those made in the reply-affidavit filed by the respondents, one cannot be obivious to the undisputed fact that immediately after the services of petitioner came to be terminated, the same was challenged by way of filing an appeal before the respondent No. 2. This clearly shows that the petitioner has not remained indolent in challenging the impugned order. Not only that, but in the said appeal also, it has been contended that the impugned order of his termination came to be passed without affording him a reasonable opportunity. The matter does not simply rest here, as it is very clear from the record that even on the date of filing the petition, and thereafter till today, the said appeal has remained unheard and undisposed !! Indeed how strange and surprising it is that on the one hand the petitioner was thrown out of the job and when he challenged the same by way of an appeal, his grievance could not be attended to and disposed of as expeditiously as it ought to have been constraining him to knock the doors of this Court for appropriate relief, and on the other hand, quite queerly the respondents dare to counter-allege the inordinate delay against the petitioner ! If under such exasperating circumstances where the alternative remedy praying for the relief of reinstatement failed to click any result, if the petitioner thought it fit to file the present petition challenging the order of termination, it cannot be alleged that he has approached this Court belatedly after five years. Under such circumstances, the reliance placed by the learned A.G.P. on the Supreme Court decision rendered in case of State of Punjab v. Gurdevsing (supra) has no application in the facts and circumstances of the instant case, and accordingly, the first contention having no substance is rejected.

That takes us now to the second contention of the learned A.G.P. that since the termination of the petitioner was based on the ground of unsuitability, the same being discharge simplicitor, therefore, the order of termination with one month''s notice was just, legal and proper, and in that view of the matter, it was not necessary to give any hearing to the petitioner who was purely on probation. Now, once again, it is quite true that if we look at the impugned order of termination, there is nothing on face of it which discloses that the services of petitioner came to be terminated by way of any punishment. The impugned order as such looks quite innocuous. However, if we peruse para-4 of the reply-affidavit filed by Mr. P.P. Vagh, Home Inspector, then the mask of feigned innocence on the face of impugned order stands itself self-exposed, and the real truth about the termination comes out. How true it is that truth has capacity and tendency to come out as it has at last demonstrated in the instant case! This admission by Mr. Vagh in the reply-affidavit clearly goes to show that the impugned order of termination in unmistakable terms was based on the alleged suppression of the information by the petitioner and not on account of any other motive of the authority, and accordingly, the same cannot be treated as discharge simplicitor as asserted by the learned A.G.P. Not only that but from the record, it also appears that the petitioner was in service for two years and that at no point of time, he had given any cause for issuing any Memo or Notice justifying the order of termination on the ground of unsuitability. When such is the factual position, it is indeed difficult to agree with the submission made by the learned A.G.P. saying "that the order of termination against the petitioner being the discharge simplicitor and not by way of punishment, there was no question of giving any opportunity of hearing". Rather, the facts emerging from the record clearly fall within the ambit of the Supreme Court decision rendered in the case of Anoop Jaiswal v. Government of India and Anr., reported in (1984 LLJ 337) wherein paras 10, 11 and 12, it has been observed as under (pp. 342-343):

"......As observed by Ray, C.J. in Samsher Singh''s case (supra) the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case established that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311(2).

It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.

In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymnasium and acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed, then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution."

In view of the aforesaid decision of the Supreme Court, though the impugned order of termination outwardly appears to be in form of an order of discharge simplicitor, on screening the same minutely, that appears to be a camouflage hiding the real intention of punishing the petitioner and in that view of the matter no such order of termination could ever be passed without affording the petitioner a reasonable opportunity of being heard.

Further, according to the learned A.G.P. even if this Court was inclined to hold that the impugned order of termination was by way of penalty, then even, looking to the recent trend of the Supreme Court in some of its reported judgments it was not necessary to hear the petitioner before passing the order of his termination from service. Making good this submission, the learned A.G.P. has invited attention of this Court to three decisions of the Supreme Court rendered in the case of U.P. Junior Doctor''s Action Committee v. Dr. B. Sheetal Nandwani and Ors., (supra) wherein in para 5, the Supreme Court has observed as under:

"From the report it is manifest that a fake order in a non-existent writ petition was produced before the Lucknow Bench of the Allahabad High Court for securing the order dated June 4, 1990. It also transpires that on the basis of alleged order dated May 25, 1990 and the subsequent order of June 4, 1990 some admissions have been secured in some of the Medical Colleges. Those who have taken admission on the basis of such orders, that is on the basis of the M.B.B.S. result without going through a selection examination, cannot be allowed to continue in the Post-Graduate Courses. We are satisfied that there is a deep-seated conspiracy which brought about the fake order from Allahabad, the principal seat of the High Court and on the basis thereof a subsequent direction has been obtained from the Lucknow Bench of the same High Court. The first order being non-existent has to be declared to be a bogus one. The second order made on the basis of the first order has to be set aside as having been made on the basis of misrepresentation. We are alive to the situation that the persons who have taken admission on the basis of the M.B.B.S. results are not before us. The circumstances in which such benefit has been taken by the candidates concerned do not justify attraction of the application of rules of natural justice of being provided an opportunity to be heard...."

In case of Karnataka Public Service Commission and Ors. v. B.M. Vijaya Shankar and Ors.., (supra) one of the candidates contrary to the instructions had written roll number in the answer book. Objecting to this, the Commission decided not to subject such answer books to the evaluation. On this decision of the Commission being challenged, it was held by the Supreme Court that opportunity of hearing to the candidate need not be given. Highlighting the rule of natural justice, and whether it has any exceptions, and further whether denial of opportunity of hearing in every circumstance is arbitrary, the Supreme Court in paras 4 and 5 observed as under:

"4. Was natural justice violated? Natural justice is a concept which has succeeded in keeping the arbitrary action within limits and preserving the rule of law. But with all the religious rigidity with which it should be observed, since it is ultimately weighed in balance of fairness, the Courts have been circumspect in extending it to situations where it would cause more injustice than justice. Even though the procedure of affording hearing is as important as decision on merits yet urgency of the matter, or public interest at times require flexibility in application of the rule as the circumstances of the case and the nature of the matter required to be dealt may serve interest of justice better by denying opportunity of hearing and permitting the person concerned to challenge the order itself on merits not for lack of hearing to establish bona fide or innocence but for being otherwise arbitrary or against rules. Present is a case which, in our opinion, can safely be placed in a category where natural justice before taking any action stood excluded as it did not involve any misconduct or punishment.

Competitive examinations are required to be conducted by the Commission for Public Service in strict secrecy to get the best brain. Public interest requires no compromise on it. Any violation of it should be visited strictly in absence of any expectation of hearing in matters which do not effect any interest and call for immediate action, such as the present one, where it would be delayed declaration of list of other candidates which would have been more unfair and unjust are rare but well recognised exceptions to the rule of natural justice. It cannot be equated with where a student is found copying in the examination or an inference arises against him for copying due to similarity in answers of number of other candidates or he is charged with misconduct or misbehaviour. Direction not to write roll number was clear ad explicit. It was printed on the first page of every answer book. Once it was violated the issue of bona fide and honest mistake did not arise. Its consequences even if not provided did not make any difference in law. The action could not be characterised as arbitrary. It was not denial of equal opportunity. The reverse may be true. The Tribunal appears to have been swayed by principles applied by this Court where an examinee is found copying or using unfair means in the examination. But in doing so the Tribunal ignored a vital distinction that there may be cases where the right of hearing may be excluded by the very nature of the power or absence of any expectation that the hearing shall be afforded. Rule of hearing has been construed strictly in academic disciplines. It should be construed more strictly in such cases where an examinee is competing for Civil Service post. The very nature of the competition requires that it should be fair, above board and must infuse confidence. If this is ignored then, as stated earlier, it is not only against public interest but it also erodes the social sense of equality. The Tribunal in issuing directions approached the matter technically and has attempted to make out much where it would have been better part of discretion to refuse to interfere. The Tribunal completely misdirected itself in this regard. In our opinion its order cannot be maintained."

Similarly the case of Union Territory of Chandigarh v. Dilbagh Singh (supra) was a case wherein an injudicious selection list was cancelled and the same was challenged by the aggrieved petitioner on the ground for want of hearing to the members of the selection committee. The Supreme Court while appreciating this point, in para 11, has observed as under:

"If we have regard to the above enunciation that a candidate who finds a place in the select list as a candidate selected for appointment to a civil post, does not acquire an indefeasible right to be appointed in such post in the absence of any specific Rule entitling him for such appointment and he could be aggrieved by his non-appointment only when the Administration does so either arbitrarily or for no bona fide reasons, it follows as a necessary concomitant that such candidate even if has a legitimate expectation of being appointed in such posts due to his name finding a place in the select list of candidates, cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily. In the instant case, when the Chandigarh Administration which received the complaints about the unfair and injudicious manner in which select list of candidates for appointment has conducted in C.T.U. was prepared by the Selection Board constituted for the purpose, found those complaints to be well founded on an enquiry got made in that regard, we are unable to find that the Chandigarh Administration had acted either arbitrarily or without bona fide and valid reasons in cancelling such dubious select list. Hence, the contentions of the learned Counsel for the respondents as to the sustainability of the judgment of C.A.T. under appeal on the ground of non-affording of an opportunity of hearing to the respondents (candidates in the select list) is a misconceived one and is consequently rejected."

Thus, on carefully going through the fact situation in each one of the aforesaid three decisions, it appears that there is no comparable parallel to be applied to the fact situation of the present case as they distinctly stand on their own respective footings. Rather, to be exact, if at all any decisions are applicable to the facts and circumstances of the present case, they are those two decisions of this Court relied upon by Mr. Naik, rendered in the case of (1) Hiraben Jivanbhai Chaudhari v. R.C. Raval (supra) and (2) Chandubhai Bijalbhai Solanki v. State of Gujarat and Anr., (supra) and (3) Anopsinh Jatubha v. V.K. Gupta, District Police Officer, (supra). In case of Chandubhai Bijalbhai Solanki, the petitioner was appointed on temporary basis as an Unarmed Police Constable by an order dated March 1, 1983. Thereafter he was sent for training at P.T.S., Baroda and on successfully completing the said training, he was once again posted at Ellisbridge Police Station, Ahmedabad by an order dated August 2, 1983. On October 17, 1985, the services of the petitioner came to be terminated on the ground that the petitioner had given wrong certificate regarding the date of birth at the time of recruitment. This order came to be challenged before this Court on the ground that the services of the petitioner was terminated without giving him an opportunity of being heard, and therefore being void-ab-initio was liable to be quashed and set aside. Ultimately, accepting this contention, the said petition was allowed and the impugned order was quashed and set aside. Similarly, in the case of Anopsinh Jatubha, the petitioners were found indulging in unfair practice at the examination by copying from chit which was recovered from them during the examination in presence of another candidate and the Drill Inspector who was assisting the Supervisor. Accordingly, the petitioners were not allowed to appear in the examination and their services came to be terminated by an Order dated March 2, 1984. When the said order came to be challenged on various grounds in L.P.A., this court held that the termination of service of the petitioners were liable to be quashed on the ground that the principles of natural justice were not observed. Now, on perusal of facts in each one of these three cases, it is very clear that the same was quite self-evident and did call for the compliance of the principles of natural justice before any order of termination, prejudicial to the interests of petitioner could be passed. One additional factor, over and above the aforesaid decisions of this Court in favour of the petitioner is the fact that after the petitioner came to be appointed, the respondent No. 1 ordered the Home Inspector, Amreli to file a criminal complaint against the petitioner for the alleged offence punishable u/s 145 of the Bombay Police Act, 1951 (which is regarding giving false information while joining the service in Police Dept.) wherein the petitioner came to be acquitted on merits by judgment and order dated September 22, 1983, passed by the learned J.M.F.C., Amreli. Not only that but it has not been pointed out to this Court that the said order of acquittal in favour of the petitioner has been challenged before this Court and/or the same has been quashed and set aside. This prima facie demonstrates the folly of passing the impugned order terminating the services of the petitioner without affording him reasonable opportunity of being heard.

1. In view of the aforesaid discussion, it is very clear that the termination of services of the petitioner clearly stands out to be in violation of the principles of natural justice on very face of it, and accordingly, the same being illegal and unconstitutional, the same shall have to be quashed and set aside.

This takes us now to the alternative submission of the learned A.G.P. that as the petitioner has not worked all these years, after his service came to be terminated on December 15, 1981, he is not entitled to full back-wages. In support of this contention, the learned A.G.P. has relied upon a Supreme Court decision rendered in case of the Managing Director, U.P. Warehousing Corporation and Ors. v. Vijay Narayan Vajpayee (supra). As against this, Mr. Naik has also invited attention to a decision of this Court rendered in case of Mahendrakumar Veerabhai Makwana Vs. State of Gujarat and Another, , wherein after taking into consideration several decisions of the Supreme Courtand this Court rendered in cases of (1) The Managing Director, U.P. Warehousing Corporation v. Vijay Narayan Vajpayee (supra): (2) G. T. Lad and Others Vs. Chemical and Fibres of India Ltd., (3) P.S. Mahal and Others Vs. Union of India (UOI) and Others, (4) Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others, (5) A.L. Kalra Vs. Project and Equipment Corporation of India Ltd., (6) Kartar Singh Vs. State of Punjab, ; and (7) Dhangauri Valji Bhatt v. District Panchayat, Amreh reported in 1981 GLR 320 SC (Coram : C.K. Thakker, J.) has awarded full backwages. On these decisions being shown to this Court, finding it difficult to face the situation, the learned A.G.P. making the last ditch effort has drawn attention of this Court to the decision of this Court rendered in case of Chandubhai Bijalbhai Solanki v. State of Gujarat and Anr. (supra) where so far as the backwages are concerned, it was ordered that the petitioner would be entitled to get the same, subject to satisfying the authorities that the petitioner was not gainfully employed elsewhere during the period in question. Anyway, it appears that taking into consideration several decisions relied upon by this Court in case of Mahendrakumar Veerabhai Mahvana(supra), the petitioner deserves to be awarded full back-wages. It may be stated here that the respondents have not produced anything on record showing that the petitioner was gainfully employed somewhere else during the period in question.

8.1 Back-wages - Whose ultimate liability and why?

Now, who indeed should be saddled with the financial liability of full back-wages in such type of cases is a question which requires to be solved once and for all. Should it be saddled upon the State Government or should it be imposed upon the concerned authority which quite indiscreetly passed an order terminating the services of the petitioner, which otherwise, with little more care and circumspection, could have been reasonably avoided? This indeed is one of the most vexed and embarassing questions of quite great public importance which appears to have been eluding attention of all concerned, all these years! In fact, it is quite settled legal position by now that once a person is regularly appointed as a public servant, his services cannot be terminated, save and except by giving him a reasonable opportunity of being heard, as the same attaches a stigma to his/her service career and is penal in nature, and yet, if such patently easily avoidable mistakes are repealed by the concerned authority in total disregard of the said elementary procedural principles of law, then in that case whenever such petitions are allowed and backwages are ordered to be paid, perhaps, the time has come when the authority which passes such patently arbitrary and illegal orders should be held to be personally accountable for the same and be ordered to pay the amount of backwages from their own pockets! The reason why this Court is so constrained to take such a strict view of the matter is the fact that why indeed should the money eked out from the toil, tears and sweat of the honest taxpayers collected in the coffers of the State exchequer should unnecessarily be allowed to be so irresponsibly wasted away for no fault either of such tax-payers or that of the State Government? Rather to put it quite straight and positively, when it is only because of totally irresponsible and indiscreet decision of the concerned authority that the State Government is made to suffer payment of the backwages, it is only that authority which is responsible for the same, must suffer the said financial liability of the back-wages. Incidentally enough and merely because the concerned authority passing the termination order happens to be a public servant, that does not and cannot by any stretch of imagination put him in any privileged position to mean that it can conduct itself in any irresponsible manner as it likes with total impunity and the financial liability arising out of such misconduct is to be foisted and fastened upon the Government. The Government liability to such public servants can be limited only to the salary and other service. benefits as per the service conditions. This liability does not and indeed can never cover the risk of avoidable errors by way of indiscreet exercise of power by the concerned authority. Why indeed for any indiscreet acts and follies (which with reasonable care could and should have surely been avoided) of such public servants, in the ultimate analysis, the Government, i.e., people at large should be made to suffer? It may be pointed out that the service law is on the anvils of the judicial scrutiny since last many decades, and that the observance of the principles of natural justice before passing any order prejudicial to the interest of public servant is too well-known on elementary principle to be unaware of by any Head of the Department who passes such orders of termination as the one passed in the instant case! Not only that, but the concerned authority is also supposed to know that the order terminating the services was ultimately bound to be challenged before the Court of law which may quash and set aside the same, and further, looking to the back-log of cases, the same was also further likely to consume considerable time! The concerned authority is also further supposed to know that in case such petitions are allowed, the petitioners would be ordinarily entitled not only to reinstatement in service but also to the benefit of continuity in service with back-wages! The concerned authority is also further supposed to know that such backwages may run perhaps in thousands and lacs of rupees which will have to be paid to the concerned employee in the event of their success. The concerned authority must also further know that the amount to be paid by way of back-wages will have to be paid from the coffers of public exchequer, that is to say, it is public money. Now, if despite such glaring day- light clear and common sense facts, which the concerned authority cannot deny to be unaware of, and yet it chooses to take upon itself the risk of being totally indiscreet in passing any arbitrary and capricious order and thereby put its hand in the fire, then it should indeed be ready and thank itself to face the consequences by way of personal liability arising out of the same and cannot be permitted to be heard that its fingers are burnt! In fact, whenever the order of back-wages is passed, which on face of it is purely attributable to mala fide or callous and indiscreet act in exercise of power by the concerned authority, the State Government must see to it that the public money is just not squandered away on that count and it is asked to make it good from its own pocket. One can quite understand that sometimes an inexperienced authority not conversant with the department proceedings, the orders of suspension, dismissal, etc., may be called upon to pass some such orders under some bona fide belief or some compelling circumstances, but then at that time, before initiating and ultimately taking any action and/or passing orders in such matters, in order to avoid the consequences of personal liability, it should pause for a while and take ah expert opinion from the Legal Department. If this much care is take by the concerned authority, then this Court is sure that the eventuality which has taken place in the instant case, and which may as well take place in many other such type of cases in future, would come to an end, and both, viz., the State Government as well as the concerned authority would be saved from the ultimate financial liability by way of payment of back-wages. Once the concerned authorities are made to realise that they cannot pass any arbitrary and capricious orders at their whims and caprices, as they may as well be visited with personal liability, then many such cases of reckless termination and false victimisation of the public servants because of personal likes and dislikes, would also come to an end. This Court is constrained to make all these observations because this is not the only case, but in fact, Government or the State owned Corporations/Boards, etc., for no fault of either of them or that of the honest tax-payers are unfortunately saddled with the huge financial liability every year running into lacs and crores of rupees to be paid by way of back-wages from the people''s hard earned money realized by way of taxes ! This, on the one hand may either compel the Government to impose further taxes on the people to meet with such financial liabilities and/ or on the other hand to the said extent, obstruct social welfare programmes. One can quite understand the people contributing their humble might by paying taxes for the national development and defence, but how strange, paradoxical and objectionable it is that its money is just squandered away unproductively because of arbitrariness and total irresponsibility on the part of some of the officers conducting departmental inquiries, etc., and the State Government just passively allowing the same to happen !! as if it neither sees, nor hears, nor perceives anything !! It is equally strange that as alleged instead of sealing such wide-spread financial leakages and extravagance, many a times whenever it finds short of funds, the Government readily resorts to imposing new taxes on the members of the society! The question, therefore, in all such cases is - Can "A" be punished for the sins committed by "B"? i.e., can the society be punished for avoidable sins (acts of commission and omission) committed by the concerned authority in recklessly passing the orders which ultimately turn out to be liability upon the State Government, that is the people? This unfortunate and shocking story of the back-wages running into crores of rupees just goes on and on unending every year and yet, quite surprisingly, it has just failed to strike the State Government as to why at least for the avoidable mistakes of the concerned authorities, the people should be made to suffer !! At this stage, it would be quite worthwhile to have a look at the observations of the Supreme Court made in the matter of personal liability of the concerned authority - in case of Kamla Kanyalal Khushalani Vs. State of Maharashtra and another, wherein, in para 8, it has been observed as under:

"8...... We would like to suggest that whenever a detention is struck down by the High Court or the Supreme Court, the detaining authority or the officers concerned who are associated with the preparation of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz., delay in disposing of the representation, not supplying the documents and materials relied upon in the order of detention pari-pasu the order of detention etc. etc) or at any rate, an explanation from the authorities concerned must be called for by the Central Government so that in future persons against whom serious acts of smuggling are alleged, do not go scot free...."

No doubt, the aforesaid observations are essentially made by the Supreme Court in the matter of preventive detention, nonetheless, the principle of personal liability of the concerned authority hinted therein is as much squarely applicable to erring Government Officers who quite often indiscreetly and recklessly pass orders in the matters, which as stated above, could and should have been avoided if the same were passed with little more care and circumspection.

8.2 In the instant case also, the observance of the principle of natural justice before terminating services of petitioner was indeed quite routinal and the ordinary first and foremost elementary principle to be followed in the departmental proceedings against him which has been conveniently overlooked and as a result of which only the question of financial liability by way of back-wages has arisen. Such a liability, therefore, cannot be said to be the liability simplicitor of the State Government but rather the same should be deemed to be the personal liability of the concerned authority who passed the impugned order. This aspect, the Trustees of the people manning the public administration will have to bear in mind in order to protect the vital financial interests of the society. This can as well be a point to be taken note of and inquired by the Accounts & Audit Department while auditing the Government accounts. Not only that, buteven the Members, of Parliament and/or the Members of the Legislative Assembly also in order to protect the interest of the public exchequer, can legitimately raise such questions on the Floor in order to bring about the desired control over the irresponsible Government Officers. It appears that so far this question has not engaged attention of the Government most probably because there is no "Exclusive Authority" in the Government to look after and mind such questions. In fact, time and again, in several judgments, the Supreme Court and various High Courts have given important guidelines on several issues in the overall intere st of the Government, still however, simple mistakes, which with proper care, could and should be avoided, are just mechanically repeated to the greatest detriment of the society. The Government exists for the welfare and protection of the people''s interest and if indeed it is keen to protect the interest of people, why it does not gear up itself in the light of the observations and directions given by the Supreme Court and the High Courts is indeed a question which is difficult to answer !! It appears to this Court that if indeed some sort of a Special Cell with exclusive authority is constituted acting as a liaison between the judicial interpretation of law and its enforcement by the Government, then in that case, the existing gap between the Court''s orders/decisions and Government''s actions, if not totally bridged, can certainly be narrowed down to considerable extent in the public interest. Accordingly, the State Government would indeed do well if it just entrusts consideration of the above suggestions to a committee of some high ranking officers and ultimately constitute a Special Cell to serve as a watch-dog of the public interest/finance in the Government administration by constituting ''Exclusive Cell''. Further still, the State Government may as well consider issuance of notices calling for the explanation from the erring authorities as to why despite elementary and clear position of law and guidelines given under the relevant Rules, the orders to the prejudice of the delinquent employee and further prejudicial to the public exchequer came to be passed. Not only this, but the State Government may as well consider amending the relevant service Rules pertaining to departmental proceedings by adding one more Rule that in cases where the impugned orders of the concerned authorities are found to be mala fide or arbitrary and capricious ultimately resulting into saddling the State Government with many financial liabilities, then in that case, they would be made personally accountable for the same. If some such things are done in the matter of public interest, the same to quite great extent will curtail the loose tendency of the Head of the Departments to act casually and pass indiscreet orders. It may be clarified that the aforesaid observations are made purely in the highest public interest and with a view to see that heavy drain of money from the Government Exchequers is stopped at once.

In the result, this petition succeeds and is allowed. The impugned order of termination dated December 15, 1981 is hereby quashed and set aside. The respondents are directed to reinstate the petitioner in service with continuity of service and full back-wages within a reasonable time. It would be open to the State Government to recover the amount of back-wages as the personal liability from the concerned authority, if deemed fit. Rule made absolute with no order as to costs.