LT. COL. DIPANKAR BHATTACHARJEE v. UNION OF INDIA — 1987 DIGILAW 103 (CAL)

MAHITOSH MAZUMDAR, J. ( 1 ) THIS writ application is directed against an order being No. G. M. (P and A)/3622, dated September 30, 1983 passed by the General Manager (P and A), Indian Iron and Steel Co. Ltd. , respondent No, 4 herein, terminating the service of the petitioner. The said order of termination as contained in Annexure I to the writ application reads thus:"lt. Col. D. Chattacharyya, Kulyi. You were appointed in the Security Department of the Company under Appointment Officer No. PL/od/9/2470, dated 1. 10. 81 as Dy. Chief Security Officer on terms and conditions contained therein. You, in terms of the contract were on probation for a period of twelve months from the date of your joining (1. 4. 82) which could be extended at the discretion of the management. Since your services during the probationary period were not found satisfactory, in order to give you a chance for improvement, your probationary period was extended by another period of six months which expires today. The management has carefully evaluated your performance during the extended period of probation also but finds the same to be not satisfactory. Accordingly your services with the Company are terminated with effect from the afternoon of the date hereof. You may please hand over the Company's properties including papers lying with you to Sri S. C. Rakshit, Security Officer, you will be paid your dues as per Company's rules on receipt of 'no demand Certificate' from all concerned. This issues with the approval of the Competent Authority. Please acknowledge receipt. Sd. S. N. Das, 30. 9. 83 general Manager (Panda ). " ( 2 ) THE facts of the case in brief may be stated as follows: the petitioner joined the Joint Services Wing as cadet in January, 1950. Thereafter, the petitioner in the month of January 1952 joined the Indian Military Academy as a Gentleman Cadet and on the 13th December, 1953 the petitioner was again commissioned as an officer in the Indian Army as 2nd Lieutenant. On 13th December, 1953 the petitioner was promoted to the post of Captain. Prior to the said promotion the petitioner since the year 1956 held the acting rank of Captain. Since 1962 the petitioner held the acting rank of Major and was subsequently promoted as Major on the 13th December, 1960. On the 13th December, 1978 the petitioner was promoted as Lt. Colonel. Prior to the said promotion the petitioner since the year 1956 held the acting rank of Captain. Since 1962 the petitioner held the acting rank of Major and was subsequently promoted as Major on the 13th December, 1960. On the 13th December, 1978 the petitioner was promoted as Lt. Colonel. In the Army the petitioner held various responsible posts and also rendered the service with distinction and ability. Consequent upon the selection of the petitioner to the post of Deputy Chief Security Officer in the respondent company which by reason of instrumentality, agency and control comes within the reach, sweep and ambit of Article 12 of the Constitution of India the petitioner took premature retirement from the Army on March 31, 1982 although the petitioner had services still left. The copy of the letter of appointment is contained in annexure 'd' to the writ application. The relevant provisions of the Personnel Policy Circular No. 92, dated 14. 9. 81 as contained in Annexure 'e' to the writ petition are contained in paragraphs 4. 1 (b), 5, 2, 6, 4 and 7. 3 of the said Annexure. The said paragraphs for the sake of convenience are quoted below: -"4. 1 On fresh appointment. (b)all other executives appointed in IISCO/still shall be on probation for a period of twelve months. 5. 2 : where it is found that a probationer is not making satisfactory progress or shows himself to be inadequate for the post in any way, the short comings shall be brought to his notice during the probationary period itself to enable him to make special efforts at self-improvement. 6. 3 : subject to para. 6. 2. orders of confirmation shall be issued within a period of one month of the expiry of the probationary period. 7. 3 : the decision to extend the probation shall be communicated to the executive within one month of the expiry of the initial probationary period. The executive should also be counselled regarding inadequacies/ deficiencies observed in his performance and conduct to enable him to improve during the period of extended probation. " ( 3 ) THE petitioner asserted specific charges of mala fide against Major P. J. B. Rana, Additional Chief Security Officer, respondent No. 6 to the writ application. The executive should also be counselled regarding inadequacies/ deficiencies observed in his performance and conduct to enable him to improve during the period of extended probation. " ( 3 ) THE petitioner asserted specific charges of mala fide against Major P. J. B. Rana, Additional Chief Security Officer, respondent No. 6 to the writ application. There was no affidavit-in-opposition filed on behalf of respondent No. 6; as a result the said allegations made by the petitioner against respondent No. 6 remain unchanged and uncontroverted. ( 4 ) THE petitioner was served with an order of termination service which is set out in extenso hereinbefore. The petitioner after the appointment as Deputy Security Officer was posted initially at Burnpur Works and by virtue of an order the petitioner was transferred to the Kulti workshop. On April 20, 1982 respondent No. 6 was promoted to the post of Chief Officer and Vigilance Officer and by an order, dated July, 1982 transfered to Calcutta Office as Officer on Special Duty. The respondent. No. 6 was directed to hold security department till further orders and the post of the Chief Security and Vigilance Officer remained vacant consequent on the said transfer of Lt. A. K Bagchi, Vigilance Officer. In the ranking officer in the army respondent No. 6 was lower in the rank to the petitioner and since the time of joining of the petitioner. Respondent No. 6 did not like the petitioner. The relationship between the petitioner and respondent No. 6 was never cordial since the petitioner assumed office although there was no justifiable reason behind the scene. In the context of vacant post of Chief Security Officer and Vigilance Officer respondent No. 6 was always apprehensive of the petitioner by reason of the rank in the army. The petitioner could not oblige respondent No. 6 by not recommending the extension of service of some personnel. The petitioner for the purpose of recommending service as by respondent No. 6 asked for written instruction, The concerned personnel are Sri N. C. Mukherjee and Cham Bahadur Thapa. Refusal of the petitioner to make recommendation enraged respondent No. 6 and ultimately respondent No. 6 sent written instruction for the said extension. No extension was given to the concerned personnel. The petitioner for the purpose of recommending service as by respondent No. 6 asked for written instruction, The concerned personnel are Sri N. C. Mukherjee and Cham Bahadur Thapa. Refusal of the petitioner to make recommendation enraged respondent No. 6 and ultimately respondent No. 6 sent written instruction for the said extension. No extension was given to the concerned personnel. The petitioner did not agree to the proposal of respondent No. 6 to record the death of Sri Bahadur Rana and Gyan Bahadur Rana on account of accident. Respondent No. 6 was displeased with the petitioner on the ground of refusal to record the death in the manner as was suggested by him. The petitioner incurred displeasure of respondent No. 6 by reason of the fact that three pistols held on, charge of the Kulti Security were not handed over despite repeated requests made by the petitioner and even after the decision of the General Manager (Kulti) was intimated to respondent No. 6 that he should put up a note sheet and obtain approval for retention of the pistol. The pistol was under the security at Kulti and the petitioner was mainly responsible for the said pistols. Respondent No. 6 further became annoyed with petitioner on the ground of his failure to return the loan chit signed taking hose pipe of the fire fighting section on 6-5-82 from Shri N. C Mondal. The petitioner took up the matter with the General Manager for the purpose of taking the hose pipe. Respondent No. 6 used to visit the Kulti works but he hardly held any conference with the petitioner regarding the security aspect of the Kulti Works. Respondent No. 6 to hold discussions at the security control of the Kulti Works in the absence of the petitioner and expressed the displeasure against the petitioner as detailed in the various paragraphs of the writ application. Respondent No. 6 to hold discussions at the security control of the Kulti Works in the absence of the petitioner and expressed the displeasure against the petitioner as detailed in the various paragraphs of the writ application. The specific case of the petitioner was that the respondent No. 6 in order to create hindrance created obstacle in the work process of the petitioner in a calculated manner and transferred the Security Officer Shri Dilip Sen, without any replacement to Ujjain where there were only 25 to 27 watchmen and 500 labourers whereas at Kulti there were about 250 watchmen and 6000 labourers with a huge area to look after and in the month of March 1983 there were serious labour troubles relating to labourers engaged by the Contractors and although the handling of the same by the petitioner was commended by the General Manager (Kulti), the respondent No. 6 without having any basis whatsoever shifted the blame on the petitioner although the fact remains that there was no reason for the same. The petitioner asserted that there should be an enquiry into the matter, but the respondent No. 6 did not take any step whatsoever. The petitioner made detailed assertion in the letter, dated 15-3-83 and 12-4-83 as contained in pages 48, 40, 49, 50 and 51. It was the grievance of the petitioner that various corrective measures taken by the petitioner were not liked by the respondent No. 6 and undesirable candidates, according to the petitioner, were recruited in the security department, but the petitioner was never consulted nor was he asked to be a member in the Interview Board in the Kulti Works. Personal use of the Company jeep was also objected to by the petitioner. The respondent No. 6 sought to shift the responsibility. On the 31st October, 1983 the respondent No. 6 came to the Kulti Works and told the people that he would throw out the petitioner from service and the petitioner should have to leave the quarter within 3 days. Since the assumption of office the petitioner had brought about radical changes in the functional working of the security department which was not looked upon, well by the respondent No. 6. The petitioner had also to shoulder the responsibility of looking after the function of Additional Chief Security Officer in addition to his own duties by an once order, dated 16-9-82. The petitioner had also to shoulder the responsibility of looking after the function of Additional Chief Security Officer in addition to his own duties by an once order, dated 16-9-82. The terms of the letter of appointment provided that initial period of probation was for a period of 12 months. Although as per personnel policy Circular No. 92, dated 14-9-83 it is laid down that a probational in the event not being found satisfactory in his progress and adequate for the post in any way short comings shall be brought to the knowledge of the probationer during the probationary period in order to enable the probationer to make special effort at self improvement but nothing was done in the case of the petitioner. Clause 7 (3) of the Personal Policy Circular No. 92 provides that the decision to extend the period of probation shall have to be communicated within one month of the expiry of the initial probationary period but in the case of the petitioner nothing was communicated within a period of 13 months and consequently respondent No. 2 had no power to extend the period of probation and after the expiry of 15th months a Memo. , dated 13-3-83 from the Deputy Chief Personnel Manager, Respondent No. 7 was addressed to the petitioner by the said Memo. about the extension of period of probation of the petitioner for 6 months although the petitioner was deemed to have been confirmed. The claim of the petitioner is that the probationary period was extended with retrospective effect from 1st April, 1983 although there is no such provision to that effect either in the contract of employment or in the service Rules enabling the authorities to extend the period of probation with retrospective effect. The letter, dated 30-6-83 did not specify any alleged short comings of the petitioner and the same only provide that on the assessment of performance it was deemed necessary to extend the probationary period and as such the said memo is also contrary to and inconsistent with the provision of Personnel Policy Circular No. 92, dated 14-9-81. The petitioner being probationary executive was not counselled regarding inadequacy/deficiency observed in the performance or conduct to enable him to improve during the period of extended probation. The petitioner being probationary executive was not counselled regarding inadequacy/deficiency observed in the performance or conduct to enable him to improve during the period of extended probation. The concerned authority did not think fit to look for inadequacy and deficiency as a result whereof the petitioner was not given the effective counsel. The petitioner to his utter surprise was served with the order, dated 30-9-83 whereby the service of the petitioner was terminated. After the issue of order of termination of the service of the petitioner IISCO Officers Association, Kulti Unit lodged protest against the high handed and vindicative act on the part of the management and appeal for consideration of the order of termination, dated 30-9-83. The order of termination of service of the petitioner was again taken up by the General Secretary of IISCO Officers' Association by way of appeal to the Managing Director of the respondent company to reconsider the matter. The representative of IISCO Officers' Association met the Managing Director of the respondent company on 1-10-1983 wherein the Managing Director for the first time spelt out certain allegation which warranted the issue of the order of termination of the petitioner. The said Association, by 22nd October, 1983 held discussion with the Managing Director. The said letter is contained in Annexure II reads them :". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . During the discussion in the meeting you had mentioned that the management had taken the decision to terminate Lt. Col. D. Bhattacharyya from his service, considering the following allegations levelled against him. 1. One C. B. I, Official came to Kulti Works for getting few information, but Lt. Col. Bhattacharyya did not extend necessary co-operation to him. As a result, the C. B. I. official intimated the same to M. D. 2. Torture of his Nepali servant with electric shock. 3. Non-payment of money against materials brought by his Nepali employee. 4. Complaint from Union Leaders. 5. Misbehaviour with his subordinates. 6. Negligence of duty in helping a Watch and Ward who caught a man involved in ferro-silicon theft. 7. Torture of his Nepali servant with electric shock. 3. Non-payment of money against materials brought by his Nepali employee. 4. Complaint from Union Leaders. 5. Misbehaviour with his subordinates. 6. Negligence of duty in helping a Watch and Ward who caught a man involved in ferro-silicon theft. 7. Although there has been curtailment of overtime in all areas of the plant, he has failed to control overtime. 8. Riding with G. . . in his car at the back set on the last Independence Day celebration at Kulti. 9. Non-co-operation with an Officer who was gheraoed and detained by the workers in the sun rays. 10. Allegations for insubordination. After having the details of allegations from you G. M. (P and A) on 1-10-83, the Executive Committee had enquired the whole matter and also taken the view of Lt. Col. D. Bhattacharyya in this respect. Lt. Col. Bhattacharyya had given satisfactory reply against each of the allegations. To our dismay, we find that the allegations levelled against him have no basis and rather fabricated by his superior officer Major Rana, with the intention to victimise this honest and sincere officer. We felt that our Personnel Department has not dealt this matter impartially, rather you were given a wrong picture of the whole affair by them. We also suspect an unfair conspiracy lying in this matter. In view of the above mentioned facts, the Executives of Kulti Works have become completely demoralised and extremely disappointed due to this unilateral decision of the management. It is also a matter of regret that Lt. Col. Bhattacharyya was neither given any opportunity to put forward his view to defend himself against the above-mentioned fabricated allegations nor any Enquiry Committee was formed to establish the allegation. We understand that Lt. Col. Bhattacharyya had already submitted one appeal letter requesting you to extend an appointment for a personal interview. We are confident that Lt. Col. Bhattacharyya will be able to convince you in all respects to nullify the allegations framed against him. In the meantime, the Executive of Kulti Works have become extremely agitated and disturbed with the prevailing situation arising out of the dispute of Lt. Col. Bhattacharyya. As such, our organisation (Company) is passing through a difficult phase with severe financial crisis threatening the very existence of it. In the meantime, the Executive of Kulti Works have become extremely agitated and disturbed with the prevailing situation arising out of the dispute of Lt. Col. Bhattacharyya. As such, our organisation (Company) is passing through a difficult phase with severe financial crisis threatening the very existence of it. A high morale and team spirit amongst the executives is, therefore, very vital for the upliftment of the company which can only be ensured by first and immediate reinstatement of Lt. Col. D. Bhattacharyya. We, therefore, request you to immediately revoke the dismissal order served on Lt. Col. D. Bhattacharyya and thus receive the faith of the executives for the interest of the Company. " ( 5 ) THE letter quoted above remains unheeded and unanswered. From a reference to the said letter it would appear that the termination of service of the petitioner, as seriously claimed and asserted by Mr. K. K. Bandopadhyay, learned Counsel for the petitioner, was by way of punishment. The affidavit-in-opposition/sworn and affirmed by Chakkuth, Manager Personnel and the Principal Officer of respondent No. 2 has been filed by Mr. Jayanta Sinha. Mr. K. K Bandopadhyay, learned Counsel, submitted that the order of termination of service was per se illegal, arbitrary and violative of the rules of natural justice. Mr. Bandopadhyay further asserted that the order of termination cannot be labelled as an order of termination simpliciter and placed specific reliance on certain averments made in the affidavit-in-opposition which are set out here in below :"paragraph 11. . . . . it was due to inability of the petitioner to adjust himself. to the changed situation specially in view of respondent No. 6 being senior in service with the respondent No. 2. I say that this was the reason why the relationship between the petitioner and respondent No. 6 could not be cordial. It is not true that respondent No. 6 was apprehensive of the petitioner's rank in the Army in the context of vacating post of Chief Security and Vigilance Officer as wrongly alleged. ""paragraph 13. . . . . The petitioner holding a higher rank in the army and a lower post within the second respondent in relation to respondent No. 6 must. have resulted in his maladjustment. and improper personal relationship with respondent No. 6. ""paragraph 16. . . . . ""paragraph 13. . . . . The petitioner holding a higher rank in the army and a lower post within the second respondent in relation to respondent No. 6 must. have resulted in his maladjustment. and improper personal relationship with respondent No. 6. ""paragraph 16. . . . . The petitioner not only wrongly refused to comply with the instruction of his superior but was guilty of insubordination by refusing to head an enquiry Committee. ""paragraph 17. ?. . The petitioner showed insubordination and refused to obey the order or accept the responsibility of one pistol. This pistol had to be deposited with the dealer for safe custody as the District Magistrate did not allow the pistol to be retained in the premises of the second respondent without the officer concerned taking the responsibility? The second respondent is incurring this loss solely due to the insubordination of the petitioner. Further this is a piece of evidence showing the maladjustment of the petitioner in the undertaking of the second respondent causing not only obstruction but also disruption in the smooth management of the company. ""paragraph 19. . . . . . . I say that the petitioner showed insubordination and refused to accept respondent No. 6 as his Reporting Officer due to the difference in Army rankings of the petitioner and respondent No. 6 while both of them were in the Armed Services. . . . Because of this inability to adjust in the changed situation the performance of the petitioner was adversely affected and the second respondent did not get the service that the petitioner could render as Deputy Chief Security Officer. ""paragraph 21. . . . . . I say that a complaint was, received from Sri K. S. Gurung, former Watch and Ward Officer, Kulti alleging that the petitioner purchased some articles from the said Gurung for Rs. 235 but refused to pay for the same. This question was enquired into by respondent No. 6 in his capacity as head of the Security Department. Such allegation was found to be correct and thereafter the petitioner was made to pay the said sum of Rs. 235 to Sri Gurung. 235 but refused to pay for the same. This question was enquired into by respondent No. 6 in his capacity as head of the Security Department. Such allegation was found to be correct and thereafter the petitioner was made to pay the said sum of Rs. 235 to Sri Gurung. There was another complaint, dated May 7, 1983, received from Sri D. S. Gurung and Sri J. B. Gurung alleging assault by the petitioner or Sri Betra Bahadur Gurung, a domestic servant of the petitioner on May 6, 1983 with an electric wire stick. Sri D. S. Gurung and Sri J. . B. Gurung were relatives of Sri K. R. Gurung and they were not Under the employment of the second respondent company. The respondent No. 6 was not directly involved in the two cases but at the instance of the second respondent, respondent No. 6 came into the picture at the enquiring stage as the Head of the Security Department. ""paraqraph 23. . . . . . he was guilty of insubordination all throughout, he refused to come to Burnput on the ground that he had nothing to discuss with his superior. ""paragraph 24. . . . . I say that Sri S. K. Gupta, Assistant Central Intelligence Officer, lodged a complaint with the authorities of the second respondent on March 17, 1983 against the petitioner after his intemperate behaviour with Sri N. K. Chatterjee, one of the officers of the Subsidiary Intelligence Bureau who has visited Kulti on March 14, 1983 to discuss certain urgent points regarding the labour disturbances in Kulti on March 10, 1983. ""paragraph 26. . . . . I say that the records show that the petitioner was guilty of improper use of office jeep. The Accounts Department, Kulti Work, lodged a verbal complaint with the Additional Chief Security Officer. ""paragraph 35. . . . . . . Each complaint against him from various sources like the State Intelligence, Trade Union and from other Departments was discussed in detail with petitioner. The petitioner's response to the said counselling had not been positive and it appeared that the petitioner did not take them seriously. ""paragraph 43. . . . . . . . . . . . . Each complaint against him from various sources like the State Intelligence, Trade Union and from other Departments was discussed in detail with petitioner. The petitioner's response to the said counselling had not been positive and it appeared that the petitioner did not take them seriously. ""paragraph 43. . . . . . . the Managing Director had applied his mind and having been satisfied about the unsatisfactory quality and manner or work of the petitioner, came to the conclusion that the second respondent could not place any further reliance on the petitioner, there was complete loss of confidence of the second respondent. . ""paragraph 44. . . . . . . I say that it was due to the petitioner's inability to perform his duties, loss of confidence of the Management in the ability of the petitioner to discharge the reasonable function of "security" and for reasons mentioned hereinbefore I repeat that proper enquiry was made reasonable opportunities were given to the petitioner to explain his lapses and inability to adjust himself to the changed situation from any Army post to the civil post. " ( 6 ) AFTER referring to the said paragraphs as quoted above, Mr. Bandopadhyay strenuously stressed on certain expressions used in the various paragraphs of the affidavit, although no affidavit-in-opposition was filed on behalf of respondent No. 6. Even then verification portion of paragraphs 11, 18, 16, 19, 23, 35, 43 and 44 are verified as humble submission of the deponent of the said affidavit. The deponent to the said affidavit was not cognizant of the facts which constitute the basis of the assertion as regards mala fide against respondent No. 6 by the petitioner. More submission as contained in the aforesaid paragraphs could not be the foundation of the denial of the specific allegation made against respondent No. 6. Apart from the above, from a reference to the said paragraphs inescapable conclusion is that there was a charge against the petitioner without giving an opportunity to show cause against the said charges. Mr. Bandopadhyay submitted that the petitioner was not given a copy of the complaint and that each complaint lodged against the petitioner was through different sources like the State Intelligence, Trade Unions and other departments. It is also submitted by Mr. Mr. Bandopadhyay submitted that the petitioner was not given a copy of the complaint and that each complaint lodged against the petitioner was through different sources like the State Intelligence, Trade Unions and other departments. It is also submitted by Mr. Bandopadhyay that the charge of insubordination being one of the foundations of the order of termination, the petitioner ought to have been given an opportunity to rebut the same and for that an opportunity of hearing ought to have been given to him and that was not admittedly accorded to the petitioner. It is also submitted by Mr. Bandopadhyay that Shri S. K. Gupta lodged a complaint against the petitioner, The petitioner was not given a copy of the said complaint. The expression used in certain paragraphs as indicated above namely the petitioner was guilty of insubordination - paragraph 16, the petitioner showed insubordination - paragraph 17, the second respondent is incurring loss solely due to the insubordination of the petitioner - page 17, the piece of evidence shows that mal-adjustment of the petitioner in the undertaking of the second respondent causing not only obstruction but also disruption. Simple disclosure of the expression 'incurring loss' and valid piece of evidence showing of mal-adjustment causing obstruction and disruption fastened stigma on the petitioner. He was guilty of insubordination all throughout. Relying on the expression used in the said affidavit, Mr. Bandopadhyay proceeded to assail the petition of the respondent by contending inter alia that there was a finding as to the alleged guilt of the petitioner without giving the petitioner seasonable opportunity of being heard. Mr. Bandopadhyay has claimed and contended that the concerned authority before adjudging the guilt of the petitioner ought to have served him with Show Cause Notice and allowed him to have his say in the matter, but the authority reached its finding in such a manner as was done in the facts of the case without following basic concept of fairness. Mr. Bandopadhyay submitted that no Show Cause Notice was issued nor any reply was asked from the petitioner and the ex-parte finding was reached without according the petitioner to have the minimum right of having his say in the matter. The action of the respondent, according to Bandopadhyay, constituted grievous breach of natural justice, Mr. Mr. Bandopadhyay submitted that no Show Cause Notice was issued nor any reply was asked from the petitioner and the ex-parte finding was reached without according the petitioner to have the minimum right of having his say in the matter. The action of the respondent, according to Bandopadhyay, constituted grievous breach of natural justice, Mr. Bandopadhyay highlighted the doctrine of Audi Alteram Partem by referring to the judgment of the Supreme Court in the case of Tulsiram Patel vs. Union of India, AIR 1985 S. C. 1416 and also Central Inland Corporation Ltd. vs. B. N. Ganguly, 1986 (8) S. C. C. page 166. The cardinal principle laid down in the said decision is that rules of natural justice is implicit under Article 14 of the Constitution of India and any breach thereof would automatically constitute a serious inroad into Article 14 of the Constitution and also renders the order nullity in the eye of law. Paragraphs 72 and 95 of the said judgment in Tulsiram Patel's case (Supra) were specifically referred to and relied on by Mr. Bandopadhyay. The said two paragraphs are quoted below:"paragraph 72 the principles of natural justice are not the creation of Article 14. Article 14 is not their begetter but their Constitutional guardian. Principles of natural justice, trace their ancestry to ancient civilization and centuries long past. Until about two-centuries ago the term 'natural justice' was often used interchangeably with 'natural law' and at times it is still so used. The expression 'natural law' has been variously defined. "in Jowitt's Dictionary of English Law (Second Edition, page 1221) it is defined as 'rules derived from God, reason or nature, as distinct from man-made law'. Black's Law Dictionary (Fifth Edition, page 925) states:"this expression, 'natural law', or jus naturale, was largely used in the philosophical speculations of the Roman jurists, of the Antonine age, and was intended to denote a system of rules and principles for the guidance of human conduct which, independently of enacted law or of the system peculiar to any one people, might be discovered by the rational intelligence of man, and would be found to grow out of and conform to his nature, meaning by that word his whole mental, moral and physical constitution. The point of departure for this conception was the stoic doctrine of a life ordered 'according to nature', which in its turn rested upon the purely suppositions existence, in primitive times, of a 'state of nature', that is, a condition of society in which men universally were governed solely by a rational and consistent obedience to the needs, such nature being as yet undefaced by dishonesty, falsehood, or indulgence of the baser passions. In ethics, it consists in practical universal judgments which man himself elicits. These express necessary and obligatory rules of human conduct which have been established by the author of human nature as essential to the divine purposes in the universe and have been promulgated by God solely through human reason. ""paragraph 95. The principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that Article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination, where discrimination is the result of State action, it is a violation of Article 14; therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice, What it does is to guarantee that any law or State action violating them will be struck. down. The principles of natural justice, however, apply not only to the legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'state' in Article 12, is charged with. the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially. " ( 7 ) MR. Bandopadhyay also referred to paragraphs 104 and 105 of the judgment of Central Inland Water Transport Corporation (Supra), The relevant portion of paragraph 104 is quoted below: -"paragraph 104. As the Corporation is 'the State' within the meaning of Article 12, it was amenable to the writ jurisdiction of the High Court under Article 226. " ( 7 ) MR. Bandopadhyay also referred to paragraphs 104 and 105 of the judgment of Central Inland Water Transport Corporation (Supra), The relevant portion of paragraph 104 is quoted below: -"paragraph 104. As the Corporation is 'the State' within the meaning of Article 12, it was amenable to the writ jurisdiction of the High Court under Article 226. It is now well established than an instrumentality or agency of the State being 'the State' under Article 12 of the Constitution is subject to the Constitutional limitations, and its actions are state actions and must be judged in the light of the Fundamental Rights guaranteed by Part III of the Constitution, The action of an instrumentality or agency of the State must, therefore, be in conformity with Article 14 of the Constitution. The progression of the judicial concept of Article 14 from a prohibition against discriminatory class legislation to an invalidating factor for any discriminatory or arbitrary State action has been traced in Tulsiram Patel case. The principles of natural justice have now come to be recognised as being a part of the constitutional guarantee contained in Article 14. In Tulsiram Patel case this court, said (at page 476, para. 95 ). The principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this court to the concept of equality which is the subject matter of that Article. Shortly put, the syllogism runs thus : Violation of a rule of natural justice results in arbitrariness which is the same as discrimination, where discrimination is the result of State action, it is violation of Article 14, therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not, coming within the duty of deciding a matter. " ( 8 ) MR. Bandopadhyay while dealing with the action of the respondents highlighted paragraph 2 of the Policy Circular No. 22. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not, coming within the duty of deciding a matter. " ( 8 ) MR. Bandopadhyay while dealing with the action of the respondents highlighted paragraph 2 of the Policy Circular No. 22. The justification of his challenge is that the petitioner was never apprised of the short coming nor he was furnished with a finding that the petitioner showed himself to be inadequate for the post in any way. It was further the case of the petitioner, according to Mr. Bandopadhyay, that the probation may be extended not for more than once by a period not exceeding the initial probationary period. In support of his contention Mr. Bandopadhyay also stressed and asserted that in view of the disclosure of the aspersion and stigma in the affidavit it was incumbent upon the concerned respondents to communicate the imputation of misconduct of the petitioner. Under Rule 54 of the Indian Iron and Steel Ltd. Conduct, Discipline and Appeal Rules, procedure provided therein was not at all adhered to and the termination was effected in grievous breach of the rules of natural justice, The ostensible termination is virtually dismissal of the petitioner's service with the stigma fastened on the petitioner without any enquiry in accordance with Rules 5:4 of the Conduct, Discipline and Appeal Rules. The petitioner was never informed that the petitioner suffered from the loss of confidence as would appear from the disclosure as made in the affidavit-in-opposition. Loss of confidence is a permanent stigma and the petitioner ought to have been accorded an opportunity of showing cause before such finding was arrived at by the concerned authority. It is also the case of the petitioner that the petitioner was found guilty of insubordination without any opportunity being accorded to the petitioner of showing cause and/or exercising effective right of defence. Such finding as was arrived at by the concerned authority as to the alleged guilt of the petitioner was ex parte and without adhering to the fundamental principles of Audi Alteram Partem. Mr. Such finding as was arrived at by the concerned authority as to the alleged guilt of the petitioner was ex parte and without adhering to the fundamental principles of Audi Alteram Partem. Mr. Bandopadhyay in support of his contention referred to various paragraphs of affidavit-in-opposition and contended that the respondent authority having lost confidence in the petitioner the action thus initiated in terminating his service without giving him an opportunity of hearing could not but be termed as nullity in the eye of law. The respondents fastening stigma on the petitioner acted arbitrarily, unfairly and/or in an inequitous manner. Mr. Bandopadhyay referred to and relied upon the judgment of the Supreme Court in the case of L. Michael and another v. M/s Johnson Pumps Ltd. , 75 S. C. Cases (Iands) 169. In support of his basic stand Mr. K. Bandopadhyay submitted that in the instant case, the veil is required to be lifted for x-raying the reality or the substance of the order. In view of the said finding and/or of the decision of the management as disclosed in the affidavit-in-opposition, Mr. Bandopadhyay placed great reliance on the aforesaid ruling of the Supreme Court to highlight that loss of confidence exposed the colourable exercise of the power of the respondent and the court in the given situation set aside the termination simpliciter, even if it is dismissal in disguise for misconduct and in that background the action taken by the management is liable for judicial scrutiny. Mr. Bandopadhyay referred to the following judgment in support of his contention that the order of termination would be assailed on the ground that the form of the order in the facts of the case is merely a camouflage for an order of dismissal for misconduct. In such a situation the Court can lift the veil of the order for the purpose of finding out the real nature of the order. In the case of Anup Jaiswal -V- The Government of India and others, AIR 1984 S. C. 636 it is held by the Supreme Court that where the form of 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. The petitioner was never informed that the second respondent could not place any reliance on the petitioner, that there was complete loss of confidence of the second respondent in the petitioner and therefore, service of the petitioner as a probationer was brought to an end. The letter of termination did not contain the expression 'loss of confidence' but in the affidavit-in-opposition the said finding is disclosed. It appears that the order terminating the service of the petitioner was erroneously worded. The facts and circumstances of the case established that the enquiry regarding the allegation of the misconduct was made and the concerned authority reached the conclusion to the effect as is indicated in the said paragraphs. The order though in the form is merely a determination of employment but in reality is a cloak for an order of punishment. In such a situation 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. Here the order of termination is passed on loss of confidence and the misconduct is impliedly mentioned in the affidavit-in-opposition. The loss of confidence is a subjective feeling or individual reaction to objective set of facts and motivation. The court is concerned with the latter and not with the former. In a case of confidential or responsible post or a sensitive or strategic position being abused, it may be a high risk to keep an employee once suspicion has started. Loss of confidence should rest on some tangible basis and power has to be exercised by the employer objectively and with due care and prudence and the grounds on which the power is exercised can be scrutinised by the court. The power cannot be based on ipse dixit of the employer. Reference may be made to the judgment of the Court in the case of The Manager, Government Branch another -V- D. B. Belliappa. , AIR 1979 S. C. 429. Similarly the judgment of the Supreme Court in the case of Bishan Lal Gupta -V- The State of Haryana and others, AIR 1978 S. C. 363 is also referred to by Mr. Bandopodhyay. The judges case of The State of Punjab and another -V- Sukh Baj Bahadnr 1968 S. L. R. 701 is also relied on by Mr. Bandopadhyay. Similarly the judgment of the Supreme Court in the case of Bishan Lal Gupta -V- The State of Haryana and others, AIR 1978 S. C. 363 is also referred to by Mr. Bandopodhyay. The judges case of The State of Punjab and another -V- Sukh Baj Bahadnr 1968 S. L. R. 701 is also relied on by Mr. Bandopadhyay. ( 9 ) REFERENCE may be made to a catena of the decision of the Supreme Court of India as also various High Courts. The basic contention of Mr. Bandopadhyay is that the innocuously worded orders may also be in reality by way of punishment. Therefore, it is a settled law that the form of the order is not conclusive of the true nature of the order. The form of order may be merely a camouflage for an order of dismissal for misconduct and it is always open to the Court before which the order is challenged to go behind the form and find out the true nature of the order. If the court holds that the order though in the form is merely a determination of employment but it is in reality a cloak for an order of dismissal by way of punishment the court could not be debarred merely because of the form of order in giving effect to the right conferred by statutory rules upon the employer. Reference may be made to a catena of decisions as cited below. State of Uttar Pradesh -V- Bhoop Singh Verma, AIR 1979 S. C. 684. Nepal Singh -V- State of Uttar Pradesh, AIR 1985 S. C. 84. L. K. Singh -V- Union of India, 1984 Lab I. C. 1551. Raj Kumar Sharma -V- Union of India, 1985 Lab I. C. 378. Abdul Rashid Khan -V- State of Jammu and Kashmir, 1983 (1) S. L. J. 507. Ram Subal -V-Union Territory, Mizoram. 1984 Lab I. C. 834. A. M. Rao -V- Director, Defence Metallurgical Research Laboratory, 1985 (1) S. L. R. 165. Jagdish Chand -V- Union of India, 1985 Lab I. C. 169. Sarjug Prasad -V- State of Bihar and Ors. , 1984 Lab. I. C. 1264. Gurnam Kaur and Ors.-V- Punjab State, A. M. Board, Chandigarh, 1985 Lab. I. C. 1585. Miss Rashmi -V- State of Punjab and Ors. , 1983 (1) S. L. R. 243. Ramgiri Keshavgiri Goswami -V- K. M. Raval, Deputy Conservator of Forest and Anr. Sarjug Prasad -V- State of Bihar and Ors. , 1984 Lab. I. C. 1264. Gurnam Kaur and Ors.-V- Punjab State, A. M. Board, Chandigarh, 1985 Lab. I. C. 1585. Miss Rashmi -V- State of Punjab and Ors. , 1983 (1) S. L. R. 243. Ramgiri Keshavgiri Goswami -V- K. M. Raval, Deputy Conservator of Forest and Anr. , 1984 (3) S. L. R. 579. State of H. P. and Anr.-V- Ram Kumar and Anr. , 1985 (1) S. L. R. 435. Dr. (Mrs.) Esmina Gomies Maetins -V- The Union of India, 1977 All India Services Law Journal at page 415. Dr. Gopal Krishna K. Salekar -V- Union of India and another, 705 of 1970 S. L. B. J. L. Mamtani -V- Indian Institute of Technology, 1977 S. L. J. at page 360. A. M. Rode -V- Principal, Govt. Degree College, Chindwara and Ors. , 1973 S. L. J. 711. Prasan Kumar Sadangi -V- State of Orissa and Ors. 1976 S. L. J. 667. Darshan Singh -V- State of Punjab, AIR 1964 Punjab 354. Gurdip Singh -V- State of Punjab, AIR 1960 All 890. State of Punjab -V- Sukh Raj Bahadur, 1968 Services Law Reporter 701. Jagdish Chand Pant -V- State of U. P. , 1974 (2) S. L. R. 208 All. Bashir Ahmed -V-Settlement Officer, Consolidation, Ghazipur, 1973 (1) S. L. R. 766 All. ( 10 ) MR. Jayanta Sinha appearing for the respondents strenuously resisted the pleas of Mr. Bandopadhyay by contending inter alia that the order of termination was passed On the ground that the petitioner's performance was unsatisfactory, that there was no stigma attached to the petitioner, that the concerned authority upon consideration of over all performance of the petitioner came to the conclusion that the petitioner's service was liable to be terminated on the ground of unsatisfactory performances. That the facts as alleged, even if they are found to be true can at best be called the motive, but not the foundation of the order and the order in question could not be held to be punitive in nature. That there was no ground for challenging the order of termination as being violative of the rules of natural justice inasmuch as the concerned authority on a verification of the records of the petitioner was of the view that the service of the petitioner should be terminated. That there was no ground for challenging the order of termination as being violative of the rules of natural justice inasmuch as the concerned authority on a verification of the records of the petitioner was of the view that the service of the petitioner should be terminated. Turning back to the facts of the case and the respective submissions of the learned counsel appearing for the parties the court is required to consider as to whether the respondents can dispense with the service of the probationer who has no right to post, in two ways: - (i)by an order of termination simplicitor in terms of the rule or contract without anything more; (ii)by attaching a stigma or casting a blame. ( 11 ) IT is only in the category of the second case the authority cannot do so without proper enquiry under the relevant rules. The anxiety of the court is that stigma or blame may not be apparent but it be the foundation of the order. In such cases, it has been held that if it is a motive, it is wholly irrelevant and the court need not question it. If certain complaints or circumstances are taken into account for the purpose of considering the suitability of the employee for his continuing in service or if the impugned order is made in the background of the allegations, then a departmental enquiry is not necessary. It is warranted only when they form the foundation of termination, then the question of punishment may arise. The decision of the Court of Appeal in the case of Nirmal shanti Kanjilal -V- Senior Manager, Post and Telegraph Motor Service, Calcutta and Ors. reported in 1974 C. L. J. 443 succinctly resolves the question of foundation or motive in a succint manner as would appear from the said judgment. From the trend of the Supreme Court decisions it appears that in cases like. these the court has to ask itself the following questions:1. WERE there any charges against the Government servant? 2. If so, was the order of termination made because of these charges? In other words in the absence of the charges would the order have been made at all? 3. these the court has to ask itself the following questions:1. WERE there any charges against the Government servant? 2. If so, was the order of termination made because of these charges? In other words in the absence of the charges would the order have been made at all? 3. If the answer to the first question is in the affirming and the second question is in the negative, the order has to be struck down if the procedure indicated by Article 311 (2) is not followed. ( 12 ) IN the instant case the respondent in the affidavit-in-opposition disclosed certain startling facts which may be summarised as follows :-"that the order of termination was due to inability of the petitioner to adjust himself in the changed situation. " "that the petitioner not only wrongly refused to comply with the instruction of his superior but was guilty of insubordination by refusing to head an Enquiry Committee. " "the second respondent is incurring loss solely due to the insubordination of the petitioner. Further this is a piece of evidence showing maladjustment of the petitioner in the undertaking of the respondent No. 1 causing not only obstruction but also disruption in the smooth management of the Company. " He was guilty of insubordination all throughout. Sri S. K. Gupta, Assistant Central Intelligence Officer, lodged a complaint with the authorities against the petitioner on March 17, 1983. The petitioner was guilty of improper use of office jeep. There was complete loss of confidence of the second respondent. No proper enquiry was made, and no reasonable opportunity was given to the petitioner for rebutting the alleged lapses. After careful reading of the startling facts as disclosed in the affidavit-in-opposition I can not persuade myself with the contention of Mr. Sinha that the order of termination was not by way of punishment. The petitioner was not informed at all of his short comings in writing nor was he given reasonable opportunity of showing cause in respect of each complaint received against the petitioner from various concerns like the Intelligence, Trade Unions. The petitioner was not given any Show Cause Notice to the effect that the committed act of insubordination nor was he given any opportunity of knowing the foundation of the finding of the conclusion of the concerned authority, that is respondent's loss of confidence in the petitioner. The petitioner was not given any Show Cause Notice to the effect that the committed act of insubordination nor was he given any opportunity of knowing the foundation of the finding of the conclusion of the concerned authority, that is respondent's loss of confidence in the petitioner. The petitioner was not given any copy of the enquiry report as stated in paragraph 44 of the affidavit-in-opposition I am in agreement with the submission of Mr. Bandopadhyay that the loss of confidence, amounts to fastening the stigma on the petitioner and the order of termination was effected on loss of confidence. When the decision was taken on the ground of loss of confidence recourse to enquiry is warranted. Respondent No. 2 in order to cover up the inability to establish misconduct by enquiry passed an innocent looking order of termination, such an action is liable to be declared as illegal, invalid and arbitrary by the court. The loss of confidence, in my view, ought to be founded on some tangible, basis and the power is to be exercised carefully, impartially and reasonably by the employer. The tests of objectivity are to be applied with due care and prudence in such cases but the ground on which the power is exercised can be scrutinised by the Court. The power could not be, in my view, left to be unassessed and the Court cannot allow the employer to guillotine a man merely on the basis of subjective feeling of the concerned authority nor the power could be based on ipse dixit of the authority. The contention of Mr. Bandopadhyay, in my view, in this regard has much force in it. The loss of confidence, in my view, was the foundation of the order. It is appropriate for the court to hold loss of confidence was not exalted as a ground nor special circumstances exonerating bad faith in discharge simpliciter. It should not be allowed to be contended that colourable exercise of power lost validity and loss of confidence has gained ground. When there was a finding that the petitioner was ,guilty of insubordination that itself attached stigma on the character of the petitioner and the foundation for his discharge was his misconduct. There was no disclosure of ground or factors which could be otherwise constituted the basis of loss confidence. When there was a finding that the petitioner was ,guilty of insubordination that itself attached stigma on the character of the petitioner and the foundation for his discharge was his misconduct. There was no disclosure of ground or factors which could be otherwise constituted the basis of loss confidence. The petitioner was never told the extent of the loss incurred by respondent No. 2, nor the copy of the evidence showing maladjustment causing obstruction and disruption was furnished to the petitioner. I cannot but persuade myself with the contention of Mr. Bandopadhyay that the order of termination was infected will illegality and impropriety as may be summed as follows:- (a) The petitioner was not given any complaint. No charge sheet was issued against the petitioner, as regards the act of insubordination; (b) the petitioner was not given the charge of misconduct and nor was given an opportunity to rebut the charge of insubordination; (c) The petitioner was not given a copy of the complaint of Sri S. K. Gupta; (d) The petitioner was found guilty of the act of insubordination all throughout. ( 13 ) THE findings as disclosed in the affidavit-in-opposition ought not to have been reached without giving the petitioner a reasonable opportunity of being heard. The contention of Mr. Bandopadhyay that the order of termination having been founded upon misconduct and in particular loss of confidence it was wholly improper for the authority to give a complete go by to the doctrine of audi alteram partem. The contention of Mr. Bandopadhyay is that the order being vitiated by breach of natural justice otherwise is violative of Articles 14 and 16 of the Constitution, in my view, sound and proper. Reliance may be made on the judgment of the Supreme Court in the case of Tulsi Ram Patel Vs. Union of India (Supra) and Central Inland Corporation Ltd. Vs. Brojo Nath Ganguly (Supra ). To do away with the service of the petitioner without following the fundamentals of fairness had the effect of guillotining the petitioner. The termination of service involving civil consequence must conform to the rules of natural justice. It was incumbent upon the authority to secure the observance of essentials of fairness by issuing Show Cause Notice for the purpose of enabling the petitioner to deal with the same in conformity with the doctrine of fairplay in action. The termination of service involving civil consequence must conform to the rules of natural justice. It was incumbent upon the authority to secure the observance of essentials of fairness by issuing Show Cause Notice for the purpose of enabling the petitioner to deal with the same in conformity with the doctrine of fairplay in action. Any decision of the administrative agency if tainted with secrecy, partiality and lack of rationality the same could be challenged on the ground of failure of the concerned authority to act fairly or with fairness. Reference may be made to the judgment of the House of Lords in the case of Council of Civil Service Unions and Others Vs. Minister for the Civil Service, 1985 L. R. C. 948 at page. 1030. Lord Roskill in his judgment while referring to the upsurge of judicial activism held that principles of natural justice are now allowed to find a permanent resting place and will be replaced by doctrine of the duty to act fairly or fairness. Respondents, in my view, failed to act fairly and acted in grievous breach of the rules of natural justice. Violation of natural justice as found by the Hon'ble Supreme Court in Tulsi Ram Patel's case (Supra) and Central Inland Corporation Ltd. 's case renders the order impeached in the writ petition a nullity. ( 14 ) MR. Bandopadhyay asserted that the extension of the period of probation cannot be effected beyond the initial period of probation. Reference is made to the judgment of the Supreme Court in the case of Om Prokash Maurya Vs. U. P. Co-operative Sugar Factories Federation, Lucknow and others, 1986 S. C. C. (I and S) 421 by Mr. K. K. Bandopadhyay. ( 15 ) IN the case of Om Prokash Maurya (Supra) there are two sets of rules governing the employees of the U. P. Government Sugar Factories Federation (i) The U. P. Co-operative Societies Employees Service Regulations, 1975; (ii) The U. P. Co-operative Sugar Factories Federation Employees Service Rules, 1976. While Regulation 17 of the 1975 Regulation does not permit continuation of an employee for a period more than two years, one year being the normal period of probation and a further year being the extended period, Rule 5 of the 1976 Rules does not prescribe any limit on the extension of the probationary period. While Regulation 17 of the 1975 Regulation does not permit continuation of an employee for a period more than two years, one year being the normal period of probation and a further year being the extended period, Rule 5 of the 1976 Rules does not prescribe any limit on the extension of the probationary period. ( 16 ) THE State Government issued, a Notification No. 366-C/ XII-C 36-71, dated March 4, 1972 constituting U. P. Co-operative Institutional Service Board under Section 122 (2) of the U. P. Co- operative Societies Act and conferred power on it to frame regulation regarding conditions of service of the employees of Apex Level Societies. Since Section 2 (a-4) of the Act specified the U. P. Co-operative Sugar Factories Federation Ltd. as an Apex Level Society, the regulations framed by the Board, viz. , the 1975 Regulations would apply to the employees of the said Federation. The 1975 Regulations framed by the Board under Section 122 (1) requires approval of the State Government and on such approval the regulation so framed supersedes any Rule made under Section 121. But the Rules framed under Section 121 (1) regulating the condition of service of employees of Co-operative Societies do not require approval of the State Government. There being two sets of rules regulating the conditions of service of employees of Co-operative Societies the regulations framed under Section 122 and approved by the State Government shall prevail. In this view, the provisions of the U. P. Co-operative Sugar Factories Service Rules, 1976 do not overrule Service Regulation of 1975. In absence of approval of the State Government as required by sub- section (2) of Section 122, rules, if any, framed by the Commissioner and Secretary, Sugar Industry and Cane Development Department do not acquire any legal force. In this view, 1965 Regulations framed by the Institutional Service Board continue to apply to the employees of the U. P. Co-operative Sugar Factories Federation Ltd. ( 17 ) SINCE in the present case, the appellants services were regulated by the U. P. Co-operative Societies Employees Service Regulations, 1975, whereunder appellant's probationary period could not be extended the maximum period of two years, he stood confirmed on the expiry of maximum probationary period and thereafter he would not be reverted to a lower post treating him on probation. Stipulation for extension of probationary period in the appointment order must be considered in accordance with the proviso to Regulation 17 (1) which means that the probationary period could be extended for a period of one year more. The order of reversion is, thus, illegal. The appellant must therefore be treated to be in service and paid his wages and other allowances. The principles laid down in the said judgment squarely applies in the facts and circumstances of the case. It was held in the said judgment that where appointment on promotion is made on probation for a specific period and the employee is allowed to continue in the post after expiry of the probationary period without any specific order of confirmation he would be deemed to continue on probation provided the rules do not provide contrary to it. If, however, the rules provide that an employee appointed against a regular vacancy cannot be. placed on probation for more than a specified period, the employee will stand confirmed by implication after expiry of that period. Reference is also made to the case of State of Punjab vs. Dharam Singh (1968) 3 SCR 1 ; AIR 1968 SC 1210 , 1968 Lab IC 1409. ( 18 ) THE challenge of Mr. Bandopadhyay is that the failure of respondent No. 6 to deal with the allegation levelled against him, in my view, establishes the case of mala fide against respondent No, 6. The judgment of the Supreme Court in the case of Pratap Singh vs. State of Punjab; AIR 1964 SC 72 is applicable in the facts and circumstances of the case. Apart from the above, the deponent of the affidavit while referring to the lack of cordial relationships between the petitioner and respondent No. 2 was incompetent to deal with the allegations levelled against respondent No. 6. ( 19 ) THE contention of Mr. Bandopadhyay is that the order of termination being per se illegal cannot but be accepted in view of the reasons given above. The termination of the service of the petitioner was not effected merely on the ground of unsatisfactory performance but on the basis of the ex parte finding reached by the concerned authorities that the petitioner was guilty of insubordination all throughout and there was a case of loss of confidence. The finding being the foundation of the order of termination the contention of Mr. The finding being the foundation of the order of termination the contention of Mr. Sinha is warranted to be overruled. Apart from the above, the impugned order of termination is made not in the background of allegations but on the basis of stigma fastened on him. The respondents, in my view, in order to avoid the mandate of Rule 54 of the Rules resorted to the guise of innocuous order of termination. In such a situation, the Court is bound to view the matter with great disfavour and will try to accord effective guarantee to the service of a statutory employee or employees of the Government company by protecting him from being fastened by an order which, in fact, is made to get rid of an employee as a measure of punishment. I am in full agreement with the submission of Mr. Bandopadhyay that the order of termination is merited to be declared null and void and violative of Article 14 on the ground that the same is arbitrary to the core and the same was passed without holding a full fledged enquiry against the petitioner. The decisions as referred to by Mr. Bandopadhyay, in my view, are applicable in the facts of the case. In view of the aforesaid reasons, the impugned order of termination cannot but be set aside. The application is allowed. Before drawing the curtain of the case this Court feels constrained to place on record that the respondent did not produce the records of the case which ought to have been placed before the Court for the purpose of effective determination of dispute involved. Thus, the conduct of the respondent is hereby deprecated. The petitioner is hereby declared to be in continuous service. Respondents are directed to reinstate the petitioner forthwith and pay all the service benefits to which the petitioner would have been entitled had he not been fastened with the order of termination within a period of four weeks from the date of communication. ( 20 ) THE Rule is made absolute. ( 21 ) THERE will be no order as to costs. Rule made absolute.