S. Raja Lakshmi vs The Government of Tamil Nadu

Somasundaram, J.—The petitioner, a practising advocate, was appointed as temporary Judicial II Class Magistrate by the first respondent

by the order in G.O. No. 3104, Home dated 10-12-1982 under R.13 of the Tamil Nadu State Magisterial Service Rules, hereinafter called the

Rules. The petitioner joined as a Judicial II Class Magistrate at Kulithalai in Tiruchi District and from there she was transferred to Aruppukottai,

Kamarajar District. Subsequently she was transferred as Judicial II Class Magistrate, III, Vellore. The first respondent by G.O. Ms. No. 809

dated 25-3-1986 ordered the termination of the services of the petitioner as temporary Judicial II Class Magistrate and the order of termination

runs as follows:

Public Services�Tmt, S. Rajalakshmi, Temporary Judicial Second Class Magistrate�Termination�Orders�Issued.

HOME (COURTS I) DEPARTMENT

G.O. Ms. No. 809 Dated; 25th March, 1986, Panguni 11, Kurothana. Thiruvalluvar Aandu, 2017.

Read :

G.O. Ms. No. 3104, Home, dated 10-12-1982.

Read also:

From the High Court, D.O. No. 22/85, Con.E1, dated 4-10-1985.

ORDER:

Under R.13(1)(a) of the Tamil Nadu State Magisterial Service Rules, the Governor of Tamil Nadu hereby terminates the temporary services of

Tmt. S. Rajalakshmi, as temporary Judicial Second Class Magistrate is the Judicial Department in the Tamil Nadu State Magisterial Service.

The Registrar, High Court, Madras is requested to terminate the temporary services of Tmt. S. Rajalakshmi as temporary Judicial Second Class

Magistrate.

(By order of the Governor)

T.V. Venkataraman

Special Commissioner & Secretary

To Governor

In pursuance thereof the second respondent passed the notification No. 9/86 dated 3-4-1986 relieving the petitioner with effect from the date of

service of the notification. Notification No. 9/86 referred above runs as follows :�

R.O.C. No. 22/85. Con. E1.

Notification No. 9/86.

Thirumathi S. Rajalakshmi, Judicial Second Class Magistrate No. III, Vellore, who had been appointed temporarily as Judicial Second Class

Magistrate in G.O. Ms. No. 3104, Home, dated 10-12-82, and whose services in Judicial Department have been terminated in G.O. Ms. No.

809 Home (Cts.1), dated 25-5-86, is relieved with effect from the date of service of this notification.

High Court, Madras 600 104

Dated: 3-4-1986.

(Sd). S. Janarthanam,

Registrar

The petitioner has in this petition challenged the validity of G.O. Ms. No. 809 dated 25-3-1986 issued by the first respondent and the notification

No. 9/86 dated 3-4-1986 issued by the High Court, Madras and prayed for issue of a writ of certiorarified mandamus for quashing the G.O.Ms

No. 809 passed by the first respondent and notification No. 9/86 issued by the second respondent and for directing the respondents to reinstate

the petitioner in service with the attendant benefits.

Mr. K. Chandru, Learned Counsel for the petitioner, in the first place, contended that on the date of the impugned order, no doubt, the

petitioner was holding the post of a temporary Judicial II Class Magistrate; under R. 13(e) of the Rules, the Government has the right to terminate

the service of the petitioner at any time without notice and without assigning any reason. However, any order of termination of a temporary

Government servant could not be sustained if the foundation of the order of termination was an alleged misconduct on the part of the Government

servant and if the order of termination caused a stigma on the Government servant had amounted to a punishment. According to the Learned

Counsel for the petitioner, the foundation of the order of termination of service in this case, though innocuously worded as an order of termination

under R. 13(e) of the Rules, is the allegations of misconduct levelled against the petitioner and, therefore, the order amounted to punishment.

Learned Counsel for the petitioner further contended that if the impugned order is construed as an order of punishment, then, the removal of the

petitioner from service without holding an enquiry would violate Art. 311 of the Constitution of India and consequently the impugned order will

have to be quashed. Therefore, the question for consideration is, whether the impugned order of termination of service of the petitioner is not a

termination simpliciter in exercise of the power conferred under R.13(e) of the Rules or would, in effect be an order of punishment. It is now

settled law that the form of the order of termination or the language in which it is couched is not conclusive. When an allegation is made by the

employee assailing the order of termination of service as one based on misconduct, though couched in innocuous terms, it is incumbent on the part

of the Court to lift the veli to see the true nature of the order. As observed by the Supreme Court in Anoop Jaiswal Vs. Government of India and

Another,

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 establish that an enquiry into allegation of serious and grave character of misconduct involving

stigma has been made in infraction of the provision of Art. 311(2)...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.

The Supreme Court in the above decision further observed thus:

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 Art. 311(2) of the

Constitution.

In Jarnail Singh & others v. State of Punjab & others 1986-2-L.L.J. 268 the same view has been reiterated by the Supreme Court in the following

terns:

The position is now well settled on a conspectus of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold

that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad hoc appointee is a termination

simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the

order i.e., the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation

is made by the employee assailing the order of termination as one based on misconduct, though couched in (sic) terms, it is incumbent on the Court

to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such

case, will lift the veil and will see whether the order was made on the ground of misconduct inefficiency or not. In the instant case we have already

referred to as well as quoted the relevant portions of the averments made on behalf of the State respondent in their several affidavits alleging

serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners, which were taken into

consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure

provided in Art. 311(2) of the Constitution of India, while considering the fitness and suitability of the appellants for the purpose of regularising their

services in accordance with the Government Circular made in October. 1980 Thus the impugned orders terminating the services of the appellants

or the ground that the ""the posts are no longer required"" are made by way of punishment.

2A. It is in the background of the principles of law that the question whether the termination of the petitioner''s service in this case is a termination

simpliciter in exercise of the powers conferred under Rule 13(e) of the Rules or it is by way of punishment has to be considered. The respondents

have not filed any counter-affidavit denying the various allegations in the affidavit filed in support of this writ petition. In these circumstances, I

called for the file relating to the present writ petition from the second respondent and perused the same to find out the circumstances under which

the orders challenged in the writ petition came to be passed A perusal of the file shows that on 1-6-1984 one Boopathi, President of

Aruppukkottai People Organisation, Aruppkkotiai sent a petition to the Chief Justice, High Court, Madras with a copy to the Chief Judicial

Magistrate, Aruppukkottai Sivaganga containing several allegations against the petitioner. The allegations in the petition in brief are that the

petitioner received bribe at the rate of Rs. 25 and above through one Vasanthakumari, Head Clerk and Thiru Manickavasagam Clerk, Judicial II

Class Magistrate''s Court, Aruppukkottai. A list of cases wherein the petitioner has released the accused after receiving the bribe amount of Rs.

100 to Rs. 500 was also given and it was further alleged in the petition that the petitioner was in the habit of disposing of the cases without

examining witnesses and even without issuing summons to police favouring the party who has bribed her. The Chief Judicial Magistrate, Sivaganga

who received the petition from the said Boopathy on 6-6-1985 forwarded the same to the Special Officer, Vigilance Cell, High Court, Madras for

necessary action. The Special Officer, Vigilance Cell of High Court, Madras on receipt of the petition and the letter from the Chief Judicial

Magistrate submitted a note to the Chief Justice referring to the allegations of corruption made in the petition sent by the said Boopathi against the

petitioner. In the note submitted by the Special Officer he also referred to the telegram sent by the Bar Members of Aruppukkottai Bar

Association praying for not reposting the petitioner to Aruppukkottai after the expiry of the maternity leave granted to the petitioner. The Special

Officer prayed for orders from the Chief Justice as to whether the Registry may be required not to repost the petitioner to Arppukkottai after the

expiry of the maternity leave and whether a probe may be made with regard to the allegations made against her. On 1-10-1985, on the office note

submitted by the Special Officer, Vigilance Ceil, High Court, Madras referring to the various complaints of corruption received against the

petitioner, the then Chief Justice passed an order stating that the service of the petitioner may be terminated by an order of termination simpliciter.

Thereupon the second respondent bent a D.O. letter No. 22/85 dated 4-10-1985 to the Special Commissioner and Secretary to the Government

Home Department requesting that the orders of the Government may be obtained terminating the service of the petitioner in the Judicial

Department in the Tamil Nadu State Magisterial Service. On the basis of the D.O Letter No. 22 85 dated 4-10-1985 received from the second

respondent, the 1st respondent passed the impugned G.O.Ms. No. 809 terminating the temporary service of the petitioner. Thus a perusal of the

file goes to show that the then Chief Justice recommended for the termination of the service of the petitioner on the basis of the complaints of

corruption referred to in the office note put up by the Special Officer, Vigilance Cell, High Court, Madras. Therefore, the impugned order though

couched in innocuous terms cannot be considered as an order of termination simpliciter. On a consideration of the entire circumstances of the case

I am satisfied that the impugned order is not so innocuous as it appears to be on the face of it. The alleged acts of misconduct viz., the allegations

of corruption referred to in the office note submitted to the Chief Justice by the Special Officer, Vigilance Cell, was the real foundation of the order

of termination. As the order of termination passed in this case is a result of certain allegations of corruption made against the petitioner, it has to be

concluded that the impugned order is not an order of termination simpliciter but it amounts to punishment. From this it follows that the impugned

order has to be quashed inasmuch as the procedure laid down in Art. 311(2) of the Constitution has not been followed.

Before parting with this aspect of the case I must refer to the decision of the Division Bench of this Court in The High Court rep. by its Registrar

v. R. Periasamy 1989 Writ L.R. 439 (D.B.). The writ petitioner in that case, a law graduate, who was initially recruited as an Assistant in the

Electricity Board, was selected to act temporarily as Judicial Second Class Magistrate. When he was reverted to his parent department by an

order terminating his temporary service, be challenged the said order by filing a writ petition before this Court. The learned single Judge allowed

the writ petition and set aside the order of termination. The writ appeal filed by the Registrar, High Court, Madras against the order of the learned

single Judge was allowed by a Division Bench of this Court holding that where a person is borrowed from one department and is asked to work in

another department temporarily, if he is reverted back to the original department, there is no question of termination of any service in the proper

sense of the term. The Division Bench further held that when the writ petitioner was reverted back to the original department his service in the

transferred department have come to an end and he goes back to the parent department as he is having a lien in the parent department. The

Division Bench observed that the termination of the temporary service as a Magistrate is a logical corollary to the reversion to parent department.

The Division Bench ultimately held that where there is a mere order of reversion even though the reason for the reversion may be unfitness or any

other cause that can have no bearing because the Writ Petitioner merely goes back to the parent department, his rightful place and on that score,

as to the reason for the reversion, the order cannot be held to be punitive in character. The above decision is clearly distinguishable on facts. That

was a case where a person holding a permanent post in another department was selected as a temporary Judicial II Class Magistrate and he was

reverted to his parent department by an order terminating his temporary service as Judicial II Class Magistrate, which is not the position in the

present case

The second contention of the Learned Counsel for the petitioner is that even if the impugned order is an order of termination simpliciter, the

junior most in the post must be terminated. Since most of the petitioner''s juniors similarly placed like the petitioner continued to work, it is

discriminatory in character in that the petitioner alone has been singled out and her service as Judicial II Class Magistrate was terminated while

many of her juniors have been retained in that post and, therefore, the impugned order is violative of Arts. 14 and 16 of the Constitution of India.

The Learned Counsel for the petitioner further contended that the protection of Arts. 14 and 16(1) of the Constitution will be available even to

temporary Government servants like the petitioner, who have been arbitrarily discriminated, against and singled out for harsh treatment in

preference to her juniors. The petitioner filed W.M.P. No. 1238 of 1990 seeking permission of this Court to raise additional grounds in the writ

petition for raising the above plea and the same was ordered on 29-3-1990 In paragraph 10 of the additional affidavit the petitioner has specifically

stated that most of the petitioner''s juniors were allowed to continue in the post of the judicial Second Class Magistrate and that the petitioner alone

was singled out and her service was terminated. The above averment has not been denied by the respondents. A similar case came up for

consideration before the Supreme Court in The Manager, Government Branch Press and Another Vs. D.B. Belliappa, . The respondent in that

case was appointed as a temporary junior compositor in the Government Branch Press, Mercara. A notice was served on the respondent by the

petitioner in that case calling upon him to show cause why disciplinary action should not be taken against him for taking outside the press some

copies of the ballot papers relating to the Director''s election of Coorg cardamom Cooperative Societies, Mercara. Thereafter on 3-1-1967 an

order was served informing him that his appointment was purely temporary and terminable at any time without any previous notice and without

reasons being assigned and, therefore, his services were terminated with immediate effect. The respondent filed a writ petition to quash the said

order of termination. It was contended on behalf the appellant-management that the respondent''s appointment was purely temporary governed by

the conditions in the contract of his service and was liable to be terminated without notice at any time. The Supreme Court, rejecting the contention

of the appellant, observed as follows:-

The protection or Arts. 14 and 16(1) will be available even to such a temporary Government servant if he has been arbitrarily discriminated against

and singled out for harsh treatment in preference to his juniors, similarly circumstanced. It is true that the competent authority had the discretion

under the conditions of service governing the employee concerned to terminate the latter''s employment without notice. But, such discretion has to

be exercised in accordance with reason and fair play and not capriciously. Bereft of nationality and fairness, discretion degenerates into

arbitrariness which is the very antithesis of the rule of law on which our democratic Polity is founded. Arbitrary, invocation or enforcement of a

service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in

Arts. 14 and 16(1). Art. 16(1) guarantees ""equality of opportunity of all citizens in matters relating to employment or appointment to any office

under the State.

The Supreme Court in the above decision further observed thus:

The principle that can be deduced from the above analysis is that if the services of a temporary Government servant are terminated in accordance

with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory or

for a like reason which marks him off a class apart from other temporary servants who have been retained in service, there is no question of the

applicability of Art. 16,

Conversely, if the services of a temporary Government servant are terminated, arbitrarily and not on the ground of his unsuitability, unsatisfactory

conduct or the like which would put him in a class apart from his juniors in the same set vice, a question of unfair discrimination may arise

notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the

employment.

The Supreme Court in that case agreed with the High Court that the impugned order suffered from the vice of unfair discrimination and was

violative of Arts. 14 and 16(1) of the Constitution.

It is not the case of the respondent in the present case that the service of petitioner as Judicial II Class Magistrate was terminated on the ground

of her unsuitability, unsatisfactory conduct or the like. No special circumstance or reason has been disclosed, which would justify the discriminatory

treatment meted out to the petitioner particularly when her juniors have been retained in service. Therefore, the impugned order also suffers from

the vice of unfair discrimination and is violative of Arts. 14 and 16(1) of the Constitution and on that ground also the impugned orders are liable to

be set aside. In the result, the writ petition is allowed, the impugned orders, viz., G.O. Ms. No. 809, Home dated 25-3-1986 and the notification

of the second respondent No. 9/86 dated 3-4-1986 are quashed and the petitioner is directed to be reinstated in service with all attendant benefits

within eight weeks from, the date of receipt of a copy of this order. There will be no order as to costs.