State of U.P. and Another vs Tej Bahadur Singh and Another

Devi Prasad Singh and V.D. Chaturvedi, JJ.—Heard Smt. Aruna Mishra, learned standing counsel on behalf of the petitioners and Sri Shailendra Singh Chauhan learned Counsel appearing on behalf of opposite party No. 1.

Present writ petition under Article 226 of the Constitution of India has been preferred against the judgment and order dated 27.2.1993 (Annexure -1) passed by the U.P. Public Services Tribunal.

The opposite party No. 1, who is the member of Provincial Armed Constabulary (in short P.A.C.), had joined the force at Jhansi in the year 1984. The controversy in question relates allegation to the fact that the opposite party No. 1 while he was posted in Etawah, on account of misconduct, a notice dated 18th August, 1989 was served upon him, in response to which he submitted a reply. After receipt of reply, by an order dated 18th August, 1989 the private respondent was punished for ten days'' Physical Drill (P.D.).

Learned standing counsel submits that respondent No. 1 has refused to oblige the department to accept the punishment and proceeded on leave on 2nd September, 1989. Thereafter, his services have been terminated by an order dated 6th October, 1989.

Order of termination was assailed by the opposite party No. 1 before the U.P. Public Services Tribunal on the ground of its being violative of Article 311 (2) of the Constitution of India. It was pleaded before the Tribunal that the order of termination was not simplicitor and it has been passed as a measure of punishment without holding regular departmental enquiry. The Tribunal after hearing learned Counsel for the parties and going through the record, recorded a finding that the order of termination is not a simplicitor one and has been passed in violation of Article 311 (2) of the Constitution of India, hence not sustainable.

Smt. Aruna Mishra, while assailing the impugned judgment and order (Annexure-1) submitted that the order of termination is simplictor one and does not cast stigma. It has been passed exclusively on the basis of the performance of the private respondent in the department, hence it cannot be treated as punishment and the Tribunal''s decision is not correct. Rebutting the argument advanced by the learned standing counsel the counsel for the private respondent submitted that while exercising the power of judicial review, the Tribunal and this Court got power to lift the veil and in case it is found that termination order has been passed on account of certain misconduct, then such order shall not be sustainable being punitive in nature.

We have considered the arguments advanced by learned Counsel for the parties at length and perused the record. There appears to be no dispute that immediately after the order of punishment for ten days physical drill was passed, the services of private respondent was terminated. It is also alleged that after award of punishment, the opposite party No. 1 had gone on leave and tried to disobey the order of punishment dated 18.8.1989 and not undergone the sentence of physical drill.

From the material on record, there appears to be no doubt that the order of termination is preceded by the punishment of physical drill and after a short span of time, the order of termination has been passed. The Tribunal has relied upon the judgment of Hon''ble Supreme Court in Jagdish Mitter Vs. The Union of India (UOI), and observed that the impugned order of termination casts stigma, since it has been passed as a measure of punishment. The Tribunal has observed that the impugned order of termination cannot be held as simplicitor as the reason behind passing the said order is the alleged misconduct of the private respondent.

It is settled proposition of law that even temporary Government servants are entitled for protection guaranteed by Article 311 of the Constitution of India. In case authorities want to dispense with the services of a temporary Government servant for misconduct, then they have to follow the course of regular enquiry before awarding the order of punishment.

It is also settled principle of law that even a temporary Government servant charged for misconduct is entitled to face regular enquiry. Regular enquiry means after service of charge-sheet and receipt of reply to the charge-sheet, oral evidence should be recorded with opportunity to cross-examine the witnesses. Thereafter, the delinquent employee has a right to lead evidence in defence and opportunity of personal hearing should be given by the Enquiry Officer vide Jagdish Prasad Singh v. State of U.P. 1990 LCD 486 ; Avatar Singh v. State of U.P. 1998 LCD 199 ; Town Area Committee, Jalalabad Vs. Jagdish Prasad and Others, ; Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, : State of U.P. Vs. Shatrughan Lal and Another, ; Anil Kumar Vs. Presiding Officer and Others,

Simplicitor order of termination under 1975 Rules may be passed in case the Government does not require the services of the employee for reasonable cause or a decision is taken keeping in view the service rendered by the temporary Government servant for discontinuance of service. Thus, in the matter of temporary Government servant, if the motive for termination of service is innocuous and based on requirement and it cannot be faulted. However, in case the foundation of the order of termination even if it is simplicitor, is misconduct or punitive in nature, then the employees shall be entitled for the protection of Article 311 of the Constitution of India. Special Constitution Bench of Hon''ble Supreme Court (Seven Hon''ble Judges) in case in Samsher Singh Vs. State of Punjab and Another, had distinguished the motive and foundation. Hon''ble Supreme Court held that "only the form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish 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. In such a case the simplicity of the form of the order will not give any sanctity."

In the case of Shamsher Singh, Justice Krishna Iyer as a member of the Bench observed that the "Constitution is a declaration of Articles of faith and not compilation of law and there should not be any confusion for the constitutional rights and privilege". While relying upon the legal proposition as settled by Hon''ble Supreme Court in the case of The State of Bihar Vs. Gopi Kishore Prasad, His Lordship ruled that "where the State holds an enquiry on the basis of complaints of misconduct against a probationer or temporary servant, the employer must be presumed to have abandoned his right to terminate simplicitor and to have undertaken disciplinary proceedings bringing in its wake the protective operation of Article 311. At first flush, the distinguishing mark would therefore, appear to be the holding of an inquiry into the complaints of misconduct" (Para 157, page 2231).

His Lordship again proceeded to observe that "real motive behind the removal is irrelevant and the holding of an enquiry leaving an indelible stain as a consequence alone attracts Article 311 (2). What is decisive means whether the order is by way of punishment, in the light of the tests laid down in Parshotam Lal Dhingra Vs. Union of India (UOI),

Samsher Singh''s case was again reiterated and explained by Hon''ble Supreme Court in the case in Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, . While considering distinction between motive and foundation, Hon''ble Supreme Court observed that "master and servant" cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal."

In a case in Om Prakash Goel Vs. The Himachal Pradesh Tourism Development Corporation Ltd., Shimla and another, , Hon''ble Supreme Court observed that in a case of an order of termination even that of a temporary employee the Court has to see whether the order was made on the ground of misconduct. If such a complaint was made and in that process the Court would examine the real circumstances as well as the basis and foundation of the order complained of and if the Court is satisfied that the terminaton of services is not so innocuous as claimed to be and if the circumstances further disclose that it is only a camouflage with a view to avoid an enquiry as warranted by Article 311 (2) of the Constitution, then such a termination is liable to be quashed. (Para 4)

In the case of Om Prakash Goel (supra) regular charge-sheet was served alongwith documents and the delinquent employee has replied to the charge-sheet. Thereafter, the order of termination was passed without referring the charge-sheet. Hon''ble Supreme Court treated it as an order of dismissal and quashed the termination order.

In a case, in Radhey Shyam Gupta Vs. U.P State Agro Industries Corporation Ltd. and Another, Hon''ble Supreme Court observed as under:

In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into their truth but decides merely not to continue a dubious employee. The master does not want to decide or direct a decision about the truth of the allegations. But if he conducts an enquiry only for the purpose of proving the misconduct and the employee is not heard, it is a case where the enquiry is the foundation and the termination will be bad.

The principle enunciated by aforesaid judgment (supra) has been reiterated in the case, in Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others,

In the case of Dipti Prakash Banerjee (supra), Hon''ble Supreme Court observed that "Material which amounts to stigma need not be contained in termination order of a probationer but might be contained in documents referred to in the termination order or in its annexures.

In the case in AIR 2000 1706 (SC) . Hon''ble Supreme Court after considering the previous judgments of the Hon''ble Supreme Court reiterated the aforesaid principle and observed that in case after scrutiny it is found that the order of termination is passed on misconduct, then such order shall amount to dismissal from service.

In the case in Nar Singh Pal Vs. Union of India and Others, , Hon''ble Supreme Court held that where during pendency of the criminal trial, an order of termination is passed on account of involvement in criminal case, it shall not amount to simplicitor order of retrenchment and shall be punitive amounting to dismissal.

However, in a case in State of Punjab and Others Vs. Sukhwinder Singh, . where the services of a probationer were terminated without any departmental enquiry or fact finding enquiry, purely keeping in view the ability, efficiency and seniority in service, Hon''ble Supreme Court observed that the order of termination is not punitive but is a simplicitor and Article 311 of the Constitution of India is not attracted.

In another case in 2001 (2) AWC 1291 (SC) while considering a question as to whether the order of termination is simplicitor or punitive, Hon''ble Supreme Court held that even if an order of termination is simplicitor, the Court is not debarred from looking at the attendant circumstance, namely the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same. (Paras 3 and 4)

Hon''ble Supreme Court has reiterated the aforesaid principle in the cases in Bank of India v. Rajagopalan and Ors., (2000) 1 LLJ 1617SC Shailaja Shivajirao v. President, Honble Khasdar U.G.S. Sanstha and Ors., (2002) 2 LLJ 813SC; Dhananjay Vs. Chief Executive Officer, Zila Parishad, Jalna, ; Mathew P. Thomas Vs. Kerala State Civil Supply Corpn. Ltd. and Others, and State of Punjab and Others Vs. Balbir Singh,

In the case of Balbir Singh (supra), Hon''ble Supreme Court held that in order to determine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask the question as to what was the "object of the enquiry". If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simplicitor and not punitive in nature. The nature of enquiry is another factor to ascertain the punitiveness of the order of termination.

Hon''ble Supreme Court in the case of Balbir Singh (supra) further held that when the termination is preceded by a full-scale formal enquiry into allegations involving misconduct which culminated in the finding of guilt, then such order may be punitive. (Paras 7 and 11).

Again Hon''ble Supreme Court has reiterated the aforesaid principle in the cases in State of U.P. and Others Vs. Ashok Kumar, State of Uttar Pradesh and Others Vs. Vijay Shanker Tripathi, Hari Ram Maurya v. Union of India and Ors. (2006) 9 SCC 167 ; Nehru Yuva Kendra Sangathan Vs. Mehbub Alam Laskar, and Union of India (UOI) and Others Vs. Rajesh Vyas,

In a recent judgment in Jaswant Singh Pratap Singh Jadeja v. Rajkot Municipal Corporation (2007) 10 SCC 71, Hon''ble Supreme Court held in para 9 as under:

The tests governing termination of probation is no longer res integra. When a disciplinary enquiry is initiated on the premise that there are serious allegations of misconduct on the part of the delinquent officer ; his explanation thereupon had been rejected pursuant whereto a full scale formal enquiry has been initiated culminated in a finding of guilt, the order terminating the service would be held to be stigmatic. There may also be cases where the allegations involved moral turpitude on the part of the delinquent officer. The language used in the order of termination of service may ex facie be stigmatic. The language used therein may also show that there was something over and above the assertion that the officer was found unsuitable for the job. The aforementioned tests, however, are not exhaustive.

In view of settled proposition of law, we do not find that the impugned judgment and order passed by the Tribunal suffers from any impropriety or illegality. While allowing the claim petition, the Tribunal has also given liberty to proceed afresh in accordance with due compliance of Article 311 of the Constitution of India. Since no interim order was passed by this Court, the opposite party No. 1 was restored in service and he is discharging his duties and nothing has been brought on record which may indicate that after delivery of judgment by the U.P. Public Services Tribunal the work and conduct of the private respondent are not satisfactory.

In view of the above, we are not inclined to interfere with the impugned judgment and order passed by the U.P. Public Services Tribunal.

However, so far as the payment 6f arrears of salary is concerned, we provide that the opposite party No. 1 shall not be entitled for payment of arrears of salary prior to the period of the delivery of judgment by the U.P. Public Services Tribunal, i.e., 27th February, 1993, in case already not paid. However, he shall be entitled for other benefits.

Subject to the aforesaid observations and modifications the writ petition is dismissed.