Romesh Chand vs State of Himachal Pradesh and Others

Chet Ram Thakur, J.—The Petitioner joined service as a teacher in a Private High School known as Gandhi Janta High School, Thathal, Tehsil Una, District Kangra, on 10th June, 1968. This school was taken over by the Himachal Pradesh Administration after the passing of the Himachal Pradesh State Act of 1970. The services of the Petitioner were also taken over by the State administration vide its order, dated 24th June, 1969 (Annexure PA) (the date in the Annexure PA appears to be wrong). The contention of the Petitioner is that though the services of the Petitioner were temporary but were likely to be continued and it was further provided in the letter PA that the services of the Petitioner could be terminated by giving one month''s notice from either side. The Director of Education terminated the services of the Petitioner vide order No: 1/2-71-Vol. II-EII, dated 18th April, 1971 (Annexure PB) which was served on him on 26th April, 1971.

The Petitioner contends that the order of termination of his services was by way of punishment because the Petitioner was removed on a complaint made by the Gram Panchayat of Katheri. The said Panchayat was persuaded by Shri Chint Ram Mehta to pass a resolution against the conduct of the Petitioner so much so that the Panchayat passed a resolution levelling wild and false charges against the Petitioner and asking the authorities to remove the Petitioner from service.1 The resolution of the Panchayat was followed by a recommendation of Chaudhri Hari Ram, Minister of Transport'' and Local Self Government, Himachal Pradesh who is Respondent No. 5. This resolution was passed over to the Director of Education with recommendation to take action against the Petitioner. The latter sent the resolution with a note to the Headmaster of the school for making a report on the points raised by the Panchayat. According him the Headmaster entered on an ex-parte enquiry which of course had not concluded and was likely to take sometime and the local Panchayat became impatient and again approached the Minister, Chaudhri Hari Ram, to take action, and that the said Minister sent a D.O. letter to the Chief Minister for taking action in the matter. Thereafter the Director of Education without awaiting for report of the Headmaster and acting on the ex-parte and malicious complaint of the Panchayat terminated the services of the Petitioner. According to him the order ex facie does not show that the action was taken as a measure of punishment but in the endorsement made to the Headmaster, the note which is to the following effect would make the order ex fade nocuous:

A copy for information and immediate necessary action is forwarded to the Headmaster, Government High School, Thathal, Una (Kangra). He should also explain the circumstances as to why action be not taken against him for not reporting the facts to this office within a fortnight of the receipt of this endorsement.

The further contention of the Petitioner was that the endorsement itself speaks that the action was taken on the basis of an alleged complaint and which action on the face of the letter casts a stigma on the Petitioner and which letter further shows that the action has been taken not in exercise of the powers conferred under Rule 5, Sub-rule (1) of the Central Civil Service (Temporary Services) Rules, 1965.

It was also contended that he had in fact detected two students, namely, Baldev Raj and Tilak Raj indulging in unfair means in House Examination of the school, Baldev Raj is the son of Shri Chint Ram Mehta who had persuaded the local Panchayat of Katheri to pass resolution against him. Thus he says that the termination of his services has been made in a mala fide manner under political pressure and that the impugned order would demonstrate that the misconduct is the very foundation of the order not merely the motive. This termination therefore, attracted the provisions of Article 311 of the Constitution of India and he, therefore, prayed for quashing of the order, dated 18th April, 1971 (Annexure PB).

The Gram Panchayat of Katheri submitted that the Petitioner was on frequent visiting terms to the house of one of the girl students of village Katheri and had lost his reputation for moral character and his frequent visits to a minor girl student''s house were objected to by the residents of that locality. The Panchayat gave a warning to the Petitioner not to spoil the reputation of small girl students of the village who were receiving education in Government High School Thathal where he was employed as a teacher, by paying undesirable/frequent visits to the house of that particular girl student. Further on it is submitted that when the Panchayat received a complaint of molesting the modesty of a married woman by the Petitioner then the Gram Panchayat was left with no alternative except passing a resolution and sending it to the Government for his transfer to some other place. The Gram Panchayat passed a resolution on 18th March, 1970 and sent it to the Government against the Petitioner. The allegation was refuted that the Gram Panchayat passed resolution at the instance of Shri Chint Ram Mehta.

Respondents Nos. 1 and 2 in their return admitted the taking over of the school as also the Petitioner in its service on 24th June, 1969. It was submitted that there was no assurance or commitment of continuance of service. The appointment could be terminated at any time by giving one month''s notice and without assigning any reason. The rights of terminating services of the Petitioner forthwith were also reserved by the Director of Education. It was denied for want of knowledge if the Petitioner happened to detect students using unfair means in the House Examination of the school and if Shri Baldev Raj son of Shri Chint Ram Mehta was one of them or that Shri Chint Ram Mehta persuaded the Panchayat to pass a resolution. It was also denied that Chaudhri Hari Ram, Transport Minister, recommended that action may be taken against the Petitioner. It was stated that the services of the Petitioner were terminated within the meaning and thorough scope of Rule 5 (1) of the Central Civil Services (Temporary Services) Rules, 1965, and the conditions of his appointment. It was neither necessary nor practicable in the interest of public, to hold any kind of inquiry in the case and hence the services of the Petitioner were terminated by an order simpliciter of termination of a temporary employees.'' services without casting any stigma on him. The letter was not mala fide or illegal or void and that it was based on the Petitioner''s conditions of service hence valid and proper. As a matter of fact he was found unsuitable for the job. It was also denied that the termination had been made as a measure of punishment. Though no reason was assigned in the order yet the same is perfectly valid and innocuous and harmless. There was no question of one being junior or senior while, making application of the provisions of Rule 5 (1), of the Central Civil Services (Temporary Services) Rules,. 1965.

The submission made by the learned Counsel for the Petitioner is that the order is not an order of termination simpliciter but it was an order of termination of his services by way of punishment inasmuch as his- services had been terminated consequent to a complaint made by the Gram Panchayat of Kathen to the Minister and who wrote a D.O. letter to the Chief Minister and who sent it to the Director of Education. He endorsed a note and it was consequent thereto that his services were terminated although; it was Sunday when the order was passed. No enquiry was held and no opportunity was afforded to the Petitioner and the very foundation of the termination was this complaint which was made by the Panchayat. Hence the provisions of Article 311(2) of the Constitution of India were attracted to the case. The order, therefore, was illegal. The learned Counsel also placed reliance on The State of Bihar and. Ors. v. Shiva Bhikshuk Mishra (S.C. 1970 S.L.R. 863) in winch it was held:

It cannot be acceded to that so long as there are no express words of stigma in the impugned order it cannot be held to have been made by way of punishment.

No rigid principle has ever been laid down by the Supreme Court that one has only to look to the order and if it does not contain any imputation of misconduct or the words attaching stigma to the character or reputation of a Government officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred from looking at all attendant circumstances to discover whether the order had been made by way of punishment. The form of order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the over-riding test will always be whether the misconduct is mere motive or is the very foundation of the order.

In the case relied upon by the learned Counsel for the Petitioner Shiva Bhikshuk Mishra was holding the substantive post of a Sergeant in the police force till July 31, 1946. He was promoted to officiate in the higher post of Subedar. On January 9, 1948 while the was still holding the substantive post of Sergeant he was promoted to officiate temporarily as a Subedar-Major. On October 3, 1950, the Commandant of the Bihar Military Police, Musaffarpur wrote to the Deputy Inspector General of Police, Armed Forces, mentioning an incident of a physical assault on his orderly on the night of September 22, 1960. The Commandant made an inquiry in the matter and expressed his opinion that the Respondent had actually assaulted his orderly by taking the law into his own hand instead of bringing any complaint which existed against the orderly to the notice of the higher authorities for proper action. The Commandant wrote to drop the above incident without taking action an order to prevent any re-occurrence of the Subedar-Major''s gross misconduct. He suggested that he be censured for his unsatisfactory behaviour where he failed to maintain the required discipline. The Deputy Inspector General wrote a notice to the Inspector General with his own recommendation. He recommended that the officiating Subedar-Major should be reverted to his substantive rank of Sergeant and posted to Hazaribagh, and that the question whether he should be retained in service will be decided after the Board of Enquiry concluded. Further it was stated therein that even the present charge against Subedar-Major Mishra is serious but the order of reversion would meet with the case, as it was obvious that he was not likely to make either a suitable Subedar-Major or Sergeant-Major. The Inspector General made an order on November 2, 1950 as proposed. So it was in view of these circumstances that it was found that the order of reversion was made on the note of the Deputy Inspector General of Police following the report of the Commandant. The order of reversion was directly and proximately founded on what the Commandant and the Deputy Inspector General said relating to the Respondent''s conduct generally and in particular with reference to the incident of assault by him on his orderly. Reliance is also placed on R.K. Bhatt v. Union of India and Ors. (S.C. 1970, S.L.R. 867). In this case the Appellant was appointed as Upper Division Clerk in the office of the Central Claims Organisation, Ministry of Rehabilitation, Mussourie on December 24, 1956. He in pursuance to a telegram received by him on the illness of his mother he proceeded on leave. During his leave he was involved in some criminal case as a result of which he was arrested. His father wrote to the authority to grant him more leave as the Appellant was in police custody. On this he was suspended with effect from 15th November, 1958 and on January 3, 1959 his services were terminated and his appeal was also dismissed. On July 2, 1959, he applied to the Employment Officer, Employment Exchange for allowing him priority in respect of employment assistance which under the directions of the Minister of Home Affairs was admissible to Government servants whose services had been terminated under Rule 5 of the Central Civil Services (Temporary Services) Rules, 1949. The Appellant alleged that owing to the communication received from the office of his previous employer the Employment Officer refused to accord the priority to him. In that case the Union of India had taken the plea that the Appellant was employed in a purely temporary capacity and that according to the terms of employment his services could be terminated at any time after one month''s notice or on payment of a month''s salary in lieu of notice. The Appellant alleged that his membership of the Staff Council of a certain organisation had offended his employer was also denied and it had been maintained that the termination of the service of the Appellant had not been effected by way of punishment. The single Bench of the High Court held that impugned order while purporting to be one of the termination of services in exercise of the power conferred by Rule 5 of the rules referred to before, was in reality one which amounted to removal from service on the ground that the Appellant was involved in a criminal case. On appeal the Division Bench reversed the order holding that if a right existed under the rule to terminate the services it was not relevant to consider the motive operating on the mind of the Government in taking action under the rules. In appeal before the Supreme Court the Appellant contended that he had been acquitted in a criminal case on June 11, 1959 and before that date the order of suspension had been made on June 4, 1959. It was the contention of the Appellant before the Supreme Court that he had been deprived of substantial part of his salary during the period for which he was suspended and in that manner he had been visited with evil consequences without having any opportunity under Article 311(2) of the Constitution to show-cause against the termination of the services which were founded purely on the implication or involvement of the Appellant in the criminal case in which he was ultimately acquitted, and it was, therefore, in view of these facts that their Lordships of the Supreme Court allowed the appeal and remanded the case.

In the case at hand the contention of the Petitioner is that his services were terminated on a complaint filed by the Gram Panchayat of Katheri about the conduct of the Petitioner. Shri Shankar Dass, Sarpanch of the Gram Panchayat of Katheri has in ids affidavit admitted the facts of having lodged a complaint to the Government for the transfer of the Petitioner to some other place. It is also admitted that before making a complaint the local Panchayat gave a warning to the Petitioner not to spoil the reputation of small girl students of the village, who were receiving education in Government High School, Thathal, where he was employed as a teacher by paying undesirable/frequent visits to the house of that particular girl student.

Respondents Nos. 1, 2 and 5, however, denied to have terminated his services on the basis of the complaint received from the Gram Panchayat and it was also denied if Shri Chint Ram Mehta and others nursed a grudge against him for having detected this son using unfair means in the House Examination. It was further submitted that it was not at all necessary to have conducted an enquiry into the matter as his services were terminated under the terms of the contract of his services. The authorities relied upon by the learned Counsel for the Petitioner, therefore, according to the counsel for the Respondents have got no applicability to the facts of the present case. In Bhikshuk Mishra''s case the order of reversion was directly and proximately founded on what the Commandant and the Deputy Inspector General said relating to the Respondent''s conduct generally and in particular with reference to the incident of assault by him on his orderly. In that case a Board of Enquiry for answering changes of misconduct was also constituted and he was thereafter reverted to his substantive post and subsequently he was dismissed from service. The latter case, i.e., R.K. Bhatt (supra) also is distinguishable because in that case it was one of the contentions of the Appellant that he had been deprived of substantial part of his salary during the period for which he was suspended and in that manner he had been visited with evil consequences without having any opportunity under Article 311(2) of the Constitution to show-cause against the termination of the services which were founded purely on the implication or involvement of the Appellant in the criminal case in which he was ultimately acquitted.

To me the submission of the counsel for the Respondents does not appear to be correct. The principle enunciated in the two authorities relied upon by the teamed counsel for the Petitioner is fully applicable so the facts of the instant case inasmuch as the complaint of the Panchayat is the very foundation of the termination of the services of the Petitioner. The Gram Panchayat before makings complaint did issue a warning to the Petitioner and it so appears that when he did not mend himself, the Panchayat admittedly, lodged a complaint to the authorities and it was soon thereafter that the services of the Petitioner were terminated and the order is also passed on a Sundays which is not at working day and the passing of the order on a Sunday gives an insight into the mind of the authorities that they wanted to get rid of the services of the Petitioner at the earliest because of the complaint of misconduct wherein it was alleged that he had been spoiling the conduct of the young girl getting education in the school and lastly there was a complaint about his misconduct in relation to a woman So this is a circumstance which preceded the passing of this termination order and it is a very important circumstance and, therefore, this order, in my opinion, was definitely based an the complaint and was the mala fide order. the services were not terminated in the ordinary administrative manner. The Petitioner who was a temporary Government servant had no right to the post and his services according to the terms of his appointment could be terminated at any time without assigning any reason. But the manner in which this order has been passed is indicative of the fact that his services were not terminated because he was found unsuitable or that his services were not required but his services were terminated because of the complaint about his misconduct and, therefore, this order of termination amounted to removal from service within the meaning of Article. 311(2) of the Constitution and in the absence of any inquiry or notice being given to the Petitioner this order, in my opinion is not sustainable.

The learned Counsel for the Respondents placed reliance on a number of authorities to show that the Court could not look into the motive and it had only to interpret the order as it was and according to him the order was in quite clear words from which no other interpretation was possible except that it was a simple order of termination without attaching any stigma and further that the Court could not look into the files to find out the circumstances leading to the passing of the order. The first case is State of U.P. v. Shyam Lal Sharma (S.C. 1972 S.L.R. 53) wherein it was held:

Where there were no words in the order of compulsory retirement which threw any stigma, there should not be any inquiry into Government files to discover whether any remark amounting to stigma could be found in the files. The reason was that it was the order of compulsory retirement which alone is for examination. If the order itself did not contain any imputation or charge against the officer the fact that ''considerations of misconduct or misbehaviour weighed with the Government in coming to its conclusion to retire him compulsorily did not amount to any imputation or charge against the officer.'' Where the authorities could make an order of compulsory retirement for any reason and no reason was mentioned in the order it cannot be predicated that the order of compulsory retirement had an inherent stigma in the order. Unless it was established from the order of compulsory retirement itself that a charge or imputation against the officer was made the condition of the exercise of that power or that by the order the officer is losing benefits already earned, the order of retirement cannot be said to be one for dismissal or removal in the nature of penalty or punishment case law discussed.

This authority has got no applicability as it is a case of an employee after putting in twenty-five years service and a person is entitled to all the pensionary benefits, etc. In the instant case which is distinguishable from the case cited above, it is admitted by Shri Shankar Dass, Sarpanch of the Gram Panchayat who is a Respondent in the case that the Panchayat made a complaint to the Government about the misconduct of the Petitioner and it is obvious that this termination order was passed immediately thereafter and that shows that this order was the very basis or the foundation of the impugned order and, therefore, there is no question of looking into the files or the record. The preceding circumstances or the circumstances attendant on the passing of the order point to this very conclusion that this order is not an order of termination simpliciter but it was passed as a measure of punishment for his misconduct.

The second case is Binoy Kumar Mukherjee v. State of Bihar and Ors. (S.C. 1971 S.L.R. 314).In his case after the termination of the service of the Petitioner-Appellant, the Appellant applied in another department for appointment in a public sector industry and, on enquiry, the Government gave information to the new employer that the services of the Appellant had been terminated because he had not been found suitable. It was urged that giving of this information indicated that the Appellant''s services had been dispensed with as a measure of punishment and the order of termination of service was void for want of compliance with the requirements of Article 311(2) of the Constitution. Their Lordships of the Supreme Court held that the order by which the services of the Appellant were terminated was an order of termination simpliciter and did not contain any reflection on the conduct or work of the Appellant. The mere fact that, subsequently, the Government gave information on enquiry as to the background reason which led the Government to terminate the services cannot convert that order into an order of dismissal so as to attract the provisions of Article 311(2) of the Constitution. From this authority it is apparent that the order was couched in a plain language containing no stigma and it was only subsequently that the Government informed the employer that the officer was discharged because he was not found suitable and it was in these circumstances that it was held that this information will not convert the earlier order one of dismissal attracting Article 311 of the Constitution. Hence these authorities, in my opinion, will not assist him.

The learned Advocate-General also relied upon Rajinder Kumar v. Deputy Inspector General and Ors. (C.W.P. No. 132 of 1970)(decided by this Court on 18th May, 1972). In this case the facts were quite different. The termination of the services in the case cited above was not directly the result of the complaint of his misconduct whereas in this case the complaint itself forms the very foundation of the impugned order.

For what I have stated above I am of the view that the complaint made by the Gram Panchayat about the conduct of the Petitioner was the very foundation of the order of termination of the services of the Petitioner and the manner in which this termination was done is clear from the fact that the order Was passed on Sunday although the Respondent could wait to pass this order on a working day. This action of the Respondents in passing the order in a hurry ignoring the fact that it was Sunday shows the mala fide intention on the part of the Respondents. The Respondents, it is manifest, wanted to get rid of the services of the Petitioner because of the complaint with regard to the misconduct of the Petitioner and as such this termination order is not an order of termination simpliciter but was passed as a measure of punishment on the basis of the complaint. Thus the petition succeeds and is hereby allowed and the impugned order is also quashed. The Petitioner shall be treated to have continued in service and be entitled to all the necessary benefits arising from his service. However, there will be no order as to costs.