Mohan Lal Dobhi v. Union of India — 1987 DIGILAW 323 (ALL)

JUDGMENT A. N. Dikshita, J. - This second appeal arises against the judgment and decree, dated 18-8-1979 passed by Sri I. P. Mittal, District Judge Pauri Garhwal in Civil Appeal No 12 of 1979 allowing the appeal and setting aside the judgment and decree, dated 19 - M979 passed by Sri Birendra Singh, Munsif, Pauri decreeing the suit No. 24 of 1978 of the plaintiff-appellant and declaring that the order, dated 15-12-1975 passed by defendant-respondent No. 2 is invalid and ineffective and also that the plaintiff-appellant was still in service of the defendants. 2. Facts in brief are that the plaintiff-appellant (hereinafter referred to as the appellant) was appointed by the Divisional Organiser, Ranikhet respondent No. 2 as a washerman in Women Advance Training School, Pauri w.e.f. 17-3-1969. The appellant performed his duties satisfactorily for 7 years. However time and again respondent No. 3 used to take the work of a coolie from the appellant and on protest earned the displeasure of the respondent No. 3 so much so that the respondent No. 3 was on the look out for an opportunity to dispense with the services of the appellant. At the instance and instigation of respondent No. 3, respondent No. 2 initially sent a notice, dated 15-12-1975 and later on without assigning any reason and contrary to the requirement of law dispensed with the services of the appellant w.e.f., 14-1-1976. The appellant contended that his services have been illegally terminated without assigning any reason and in violation of the principles of natural justice. In fact he had become permanent in view of his continuous services for 7 years but still his services have been terminated with mala fide intentions and such order of termination of service would be deemed to be nonest. Even a representation to the Director General S. S. B., against the termination of his services was rejected. Another representation to the Cabinet Secretary met the similar fate and the appellant thereafter sent a notice, dated 26-6-1976 under Section 80 of the Code of Civil Procedure (hereinafter referred to as the Code) but that remained un-replied. 3. Ultimately the suit was filed by the appellant claiming a declaration that the notice, dated 12-12-1975 as well as the order, dated 14-1-1976 be declared illegal, void and inoperative and also that the appellant continues in service on the post of washerman. 4. 3. Ultimately the suit was filed by the appellant claiming a declaration that the notice, dated 12-12-1975 as well as the order, dated 14-1-1976 be declared illegal, void and inoperative and also that the appellant continues in service on the post of washerman. 4. The suit was resisted by the respondents on various grounds inasmuch as it was alleged that the work of the appellant was not found to be satisfactory for indiscipline in going on leave without any prior permission and also for insubordination in view of the ignoring of the orders passed by the authorities. Other allegation that the appellant was required to work as coolie was denied. The validity of the orders dated 14-1-1976 was maintained in view of the fact that the services of the appellant were wholly temporary and which were liable for dispensation by giving one months notice. The allegations of mala fide were repudiated. However, it has been categorically alleged that in spite of several warning no improvement was found in the working of the appellant, the services were dispensed with and no illegality or impropriety was ever exercised while dispensing with the services. In the additional places it was again categorically alleged that on account of unsatisfactory working of the appellant, indiscipline and insubordination and for want of any improvement in spite of warning the services were terminated. 5. On the pleadings of the parties the trial court framed the following issues: 1& D;k oknh izfroknhx.k ds vf/kuLFk LFkkbZ deZpkjh Fkk vkSj D;k oknh dks LFkkbZ deZpkfj;ksa ij ykxw fu;eksa ds v/khu lsokeqDr ugha fd;k x;k gSA ;fn izkFkhZ LFkkbZ deZpkjh ugha FkkA rks D;k mls lsok eqDr djrs le; vU; ykxw fu;eksa dk ikyu fd;k x;k gSA rFkk okn ij bldk izHkkoA 2& D;k oknh dks lsok eqDr djrs le; izfroknh ua0 3 dk vk'; }s"kkRed jgk gSA 3& D;k ;g okn bl U;k;ky; ds {ks=kf/kdkj ds ckgj gSA 4& oknh fdl vuqrks"k ds ikus dk vf/kdkjh gSA 6. The main controversy would rest on the determination of issue Nos. 1 and 2 to the effect whether the services of the appellant have been wrongly terminated and that too with mala fide intention. 7. The main controversy would rest on the determination of issue Nos. 1 and 2 to the effect whether the services of the appellant have been wrongly terminated and that too with mala fide intention. 7. The trial court on the allegations of the parties and on the basis of the evidence oral as well as documentary and in view of the protection provided under the Constitution found that the services of the appellant have been dispensed with illegally and in violation of the principles of natural justice and the requirements of Article 311(2) of the Constitution. The trial court further found that the impugned order of termination of the services of the appellant is punitive. No opportunity whatsoever was ever accorded to the appellant and thus the provisions of Article 311(2) of the Constitution were violated. It was also found by the trial court that allegations of mala fide were attributed against the respondent No. 3 but significantly no written - statement has been filed on behalf of the said respondent No. 3 though he appeared in the witness-box as D. W 1 denying the allegations that the work of coolie was ever taken from the appellant by respondent No. 3. However, believing the testimony adduced on behalf of the appellant the allegations of mala fide were found to be true and adequately substantiated. Relying on various authorities the suit was decreed - vide judgment and decree, dated 19.3.1979 declaring that the termination order is ineffective, nonest and illegal and that the appellant would be deemed to be in service as a washerman. 8. Aggrieved an appeal No. 12. of 1979 was preferred by the respondents The lower appellate court while allowing the appeal of the respondents held that it was not proper for the trial court to have invoked the protection of Article 311(2) of the Constitution suo moto in favour of the appellant as it was nowhere pleaded. The findings of the trial court were set aside as regards the status of the appellant whether he was a temporary Government Servant or a permanent one. The findings of the trial court were set aside as regards the status of the appellant whether he was a temporary Government Servant or a permanent one. On the assumption that Rule 3 of the Central Civil Services Temporary Servants Rules has not been properly applied in as much as though the appellant had continued in service for 7 years still the appointing authority after the lapse of 3 years has not made any declaration to the suitability of the incumbent for employment in a quasi permanent capacity, it was thus held by the lower appellate court that the appellant continued to be a temporary servant even though he had bee" in service for more than 7 years. The order of termination of service of the appellant was found to be an order simpliciter. The appeal was thus, allowed and the plaintiffs suit was dismissed with costs throughout. The appellant being aggrieved against the judgment and decree, dated 18-8-1979 has filed this second appeal. 9. Learned counsel for the parties have been heard. Learned counsel for the appellant has submitted that the appellant had been in continuous service for the last 7 years. After the expiry of three years he was to be considered for being appointed on a quasi permanent post. The respondent without any rhyme or reason did not consider and fulfil the requirements but continued to keep the appellant on the post on which he was appointed. In reply learned counsel for the respondents has urged that in view of the appellant having not been appointed on a quasi permanent post the appellant would be deemed to be a temporary employee. 10. Such an attitude is reflective of the miserable plight of an employee where for no fault of his the authority continued in not considering him for being appointed on a quasi permanent post and such latches or lapse on the part of the authorities cannot be deemed to be rightful or legal exercise of powers vested in them. It was the duty of the appointing authority to have examined whether the appellant was fit for consideration to a quasi permanent post. In view of the above the findings recorded by the trial court are liable to be upheld. The appellate court wrongly misconstrued the facts and the law and such findings deserve to be reversed. 11. It was the duty of the appointing authority to have examined whether the appellant was fit for consideration to a quasi permanent post. In view of the above the findings recorded by the trial court are liable to be upheld. The appellate court wrongly misconstrued the facts and the law and such findings deserve to be reversed. 11. Learned counsel for the appellant Sri Ramji Saxena then strenuously urged that the lower appellate court erred in law and has ignored to law laid down by the Supreme Court. It has been submitted by the learned counsel for the appellant that the appellant had become permanent and even assuming that be had not become permanent even then the respondents were not entitled to terminate the services without affording him an opportunity as the provisions of Article 311(2) of the Constitution would be applicable in the case of the appellant. It has further been urged that the order howsoever innocuous may appear is clouded with mala fide indention is stigmatic and smacking of the inefficiency, insubordination and would thus be deemed to be punitive. It has also been submitted that howsoever innocuous the order may appear on the face of it the court has ample powers to scan the surrounding circumstances resulting in the passing of that order and in the dispensation of the services of the appellant. I find considerable merit in the above submission. It has been found by the trial court and that too correctly that the services of the appellant were dispensed with an account of the misconduct. The suit itself was resisted by the respondents on the ground that the termination order has been rightly passed in view of the fact that the work of the appellant was not found to be satisfactory. The respondent had even asserted in its pleadings that the appellant was guilty of indiscipline having gone no leave without any prior permission, the respondents had also high-lighted the instances of insubordination as he had ignored the orders of the superior authorities. If the appellant was thus guilty of misconduct and even assuming for arguments sake that his services were wholly temporary even then an opportunity was liable to be afforded to him and in the absence of such an opportunity having been afforded the constitutional protections as enjoined under Article 311(2) of Constitution have been clearly violated. If the appellant was thus guilty of misconduct and even assuming for arguments sake that his services were wholly temporary even then an opportunity was liable to be afforded to him and in the absence of such an opportunity having been afforded the constitutional protections as enjoined under Article 311(2) of Constitution have been clearly violated. In fact on account of the misconduct the order would clearly be deemed to be a punitive and would invite the constitutional requirement of Article 311(2) of the Constitution. This view lands adequate support in the case of P. L. Dhingra v. Union of India, AIR 1958 SC 36 . In the case of Jagdish Mitter v. Union, AIR 1964 SC 449 and State of Punjab v. P. S. Chemma, AIR 1975 SC 1096 the view taken in the case of P. L. Dhingra v. Union of India case (supra) was considered and approved. In the case of Nepal Singh v. Union of India, AIR 1985 SC 1459 it was held that the order terminating the services of a temporary Government servant with a view to punish a delinquent employee is a punitive order which can be passed only after complying with the requirements of Article 311(2) of the Constitution. 12. From the pleadings of the respondents it is manifest that the order of termination was founded on misconduct, negligence or inefficiency and in such a case the order would be deemed to have been passed by way of punishment. 13. Learned counsel for the respondents has submitted that the termination of the appellant is not by way of any punishment and is a termination simplicities. It is very difficult to agree with the learned counsel for the respondent when the pleadings of the respondent clearly reveal that the order was passed with some intentions which no doubt are not communicative in the order itself. The form of the order may not be conclusive of its nature. It may be a cloak or camouflage though in fact founded on misconduct. The court would have ample jurisdiction to examine the attendant circumstances proceeding or attendant on the impugned order. The form of the order may not be conclusive of its nature. It may be a cloak or camouflage though in fact founded on misconduct. The court would have ample jurisdiction to examine the attendant circumstances proceeding or attendant on the impugned order. 1 am clearly of the view that the impugned order dispensing with the services of the appellant cannot be deemed to be a termination simpliciter more so when the trial court rightly held on the basis of the oral evidence and documentary evidence that the impugned order is wholly punitive in its intent and character: 1 find adequate support while holding that courts would not be debarred to look into the form of the order as has been held in the case of State of Bihar v. Shiva Bhikshuk Mishra, AIR 1971 SC 1011 . 14. In the case of Anoop Jaiswal v. Government of India, AIR 1984 SC 636 , it was held that the form of order of discharge is not decisive when it is found that it is merely a camouflage for an order of dismiss is for misconduct It would always be open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. 15. In the case of State of Bihar v. Shiva Bhikshuk Mishra (supra) it was held that the entirety of circumstances preceding or attendant on the impugned order must be examined and the over-riding test will always be whether the misconduct is a mere motive or is the very foundation of the order. 16 Learned counsel for the respondents has submitted the termination order of a discharge simpliciter. Instantly it. is clearly reflective of a vicious exercise and an abuse of power by the respondents while arbitrarily dispensing with the service of appellant on the plain edifice that it is discharge simpliciter. The order dispensing with the service of the appellant is unconscionable and was rightly declared illegal. 17. Apparently while dispensing with the services of the appellant no opportunity whatsoever was ever afforded to the appellant. In the said circumstances of this case when allegations of in subordination, inefficiency or disobedience were attributed, it was imperatively necessary that an opportunity was afforded to the appellant 18. 17. Apparently while dispensing with the services of the appellant no opportunity whatsoever was ever afforded to the appellant. In the said circumstances of this case when allegations of in subordination, inefficiency or disobedience were attributed, it was imperatively necessary that an opportunity was afforded to the appellant 18. Learned counsel for the appellant has laid streets to the view taken by the Supreme Court in Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another, (1986) 3 SCC 156 . It was held is this case that the actions of an instrumentality or agency of the State must, therefore, be in conformity with Article 14 of the Constitution. It was further held in this case as under : "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 Tulsi Ram Patel case (at pages 473-476). The principles of natural justice have now come to be recognised as being a part of the constitutional guarantee contained in Article 14." 19. Action of the respondents is both arbitrary and unreasonable and it also wholly ignores and sets aside the audi-alteram-partem rule and is thus viola-live of Article 14 of the Constitution. New and dynamic interpretations have been given by the Courts to the concept of equality which is the subject-matter of that Article. The violation of a rule of natural justice would result in arbitrariness which is the same as discrimination. Article 14 however, is not the sole repository of the principles of natural justice. It only guarantees that an action of the State which violates them would be struck down. This view was taken in the case of Union of India v. Tulsiram Patel, 1985(3) SCC 398 . The Rules or Regulations which provide for termination of services of the employees by merely giving simple notice of termination cannot co-exist with Articles 14 and 16(1) of the Constitution. This view was taken in the case of Union of India v. Tulsiram Patel, 1985(3) SCC 398 . The Rules or Regulations which provide for termination of services of the employees by merely giving simple notice of termination cannot co-exist with Articles 14 and 16(1) of the Constitution. While examining a similar eventuality in regard to the termination of service of an employee, a confirmed employee, by giving him 90 days notice or pay in lieu thereof the Supreme Court held in O. P. Bhandari v. Indian Tourism Development Corporation Ltd. and others, (1786) 4 SCC 337, that such rule or regulation must die so that the fundamental rights guaranteed by the Constitutional provisions as enshrined in Articles 14 and 16 remain alive. 20. Arbitrariness and abuse of power in terminating the services of the appellant has been viciously exercised and much against the established principles of natural justice. This Court and Supreme Court have time and again laid emphasis on the observance of the principle of natural justice in various decisions but still the functioning of State or the public undertakings is ignorant about it, thus depriving a person to seek protection of such sacrosanct principle. The rule or regulation which banishes employer-employee relationship has to be held of no avail to the respondents. The Supreme Court on more than one occasion has frowned upon such regulations and has struck them down. In the case of West Bengal State Electricity Board v. Desk Bandhu Ghosh, AIR 1985 SC 722 the Supreme Court has held that such regulations suffer from the vice of enabling discrimination and being arbitrary in nature deserve to be struck down. In this case Desh Bandhu Ghosh who was appointed as a permanent employee was terminated with immediate effect in view of Regulation 34 of the West Bengal State Electricity Board Regulations. 21. In Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another case (supra) the Supreme Court observed that the principles of natural justice were well recognised as being part of the constitutional guarantee contained in Article 14 of the Constitution. Any violation of the principles of natural justice would result in arbitrariness. 21. In Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another case (supra) the Supreme Court observed that the principles of natural justice were well recognised as being part of the constitutional guarantee contained in Article 14 of the Constitution. Any violation of the principles of natural justice would result in arbitrariness. Judged from this angle the action of the respondents in terminating the services of the appellant without any opportunity, it has to be held that it is arbitrary and most unreasonable and thus liable to be struck down being violative of the constitutional guarantee conferred under Articles 14 and 16 of the Constitution of India. 22. The trial court has recorded a finding of fact that the order is outcome of bad faith and is mala fide. The allegations of bias and malice were attributed against defendant No. 3 but no written statement was filed on his behalf. It is thus evident that the allegations of malafides stand controverted and the trial court rightly recorded that the impugned order terminating the services of the appellant is the outcome of bad faith and is mala fide in character. It was incumbent on the respondent No. 3 to have come forward and deny the allegations of bias against him. It was his bounded duty as he was personally knowing the fact and more so when he was clothed with the circumstances to file written statement and subject himself to cross-examination. However, the non - filing of written-statement by dependent No. 3 would be the strong circumstances which would lead to an adverse inference as no doubt defendant No. 3 appeared as a witness but the allegations of lack of mala fides or bad faith were not pleaded. In the absence of a written-statement being tiled by defendant No. 3, how can he rely on oral evidence as evidence oral or documentary can be led only on the basis of the facts pleaded. It would thus necessarily support the contention of the appellant that the termination order was the outcome of the bad faith and smacks of malafides of respondent No. 3. This view finds support in the case of Harmandil Pathak and others v. Sankatha Singh and another, 1966 ALJ 904. 23. In the case of 5. It would thus necessarily support the contention of the appellant that the termination order was the outcome of the bad faith and smacks of malafides of respondent No. 3. This view finds support in the case of Harmandil Pathak and others v. Sankatha Singh and another, 1966 ALJ 904. 23. In the case of 5. Pratap Singh v. State of Punjab, AIR 1964 SC 72 it was held that where allegations of mala fide have been attributed and the person against whom such allegations have been made has not come forward to deny them, it would be clear that mala fides stand proved. No doubt no reasons have been assigned while terminating the services of the respondent. It has thus, been contended that the order of termination is discharge simpliciter without attaching any stigma attributable to the conduct of the respondent. But the surrounding circumstances attending on the impugned order clearly reveal that the order of termination is not a discharge simpliciter but is the outcome of mala fide design resulting in the passing of the termination order. The form of order is not conclusive of its true nature. It may be a cloak or camouflage while passing the impugned order. Howsoever, over innocuous the order may appear at its face and may not contain any stigma still the entirety of circumstances preceding or attendant on the impugned order has to be examined. In the absence of a denial the impugned order had been manifestly passed with mala fide intentions and it has to be adjudged that the order was punitive having been passed with mala fide intention. 24. The order of termination passed in the instant case, therefore, cannot be sustained and is, as mentioned above, violative of Article 14, 16 and 311 of the Constitution of India. 25. In view of the above discussions it is clear that the order terminating the services of the appellant is unconstitutional and bad in law. 26. The trial court rightly held that the impugned order of termination is illegal, inoperative and ineffective. 27. In the result the appeal succeeds and is allowed with costs throughout. The judgment and decree of the lower appellate courts are set aside and the judgment and decree passed by the trial court are mentioned and restored.