Research › Browse › Judgment

Allahabad High Court · body

1987 DIGILAW 985 (ALL)

Pashupati Dayal v. State of U. P. others

1987-10-21

D.S.BAJPAI, S.SAGHIR AHMAD

body1987
JUDGMENT S. Saghir Ahmad, J. - This is a petition under Article 226 of the Constitution by which the petitioner has challenged the order dated 10.9.81 terminating his services from the post of Seenchpal by invoking the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. 2. The facts which are not disputed are that while the petitioner was working on the post of Seenchpal, three charge sheets were issued to him in respect of which a finding was recorded by the enquiry officer that the; petitioner was guilty, as he had not submitted his replies to the charges contained in the said charge sheets. Consequently on 4.5.81 a notice was issued to him requiring him to show cause why he should not be removed from service. This notice is contained in annexure2. Annexure3 is another showcause notice, By means of annexure4 which is a letter dated 25.8.81 from the Executive Engineer, the petitioner was required to submit his reply which was ultimately submitted by him on 28.8.81 in which it was, inter alia, stated that he was not afforded full opportunity of hearing and that he was not allowed to crossexamine the witnesses whose statements were also changed by the enquiry officer. The reply is contained in annexure5. While these proceedings were pending the services of the petitioner were terminated by order dated 10.9.81 in annexure7. 3. In para 20 of the counter affidavit filed on behalf of the opposite parties it has been stated as under: That the contents of para 18 of the writ petition are not admitted as alleged. Due punishment was awarded after taking into consideration all the facts of the case together with replies submitted by petitioner and reasonable opportunities were given to the petitioner. Contents to termination notice are admitted. 4. In para 31 of the counter affidavit also the opposite parties say that the termination order was passed after considering all the facts of the case. 5. The petitioner has filed a rejoinder affidavit. 6. Contents to termination notice are admitted. 4. In para 31 of the counter affidavit also the opposite parties say that the termination order was passed after considering all the facts of the case. 5. The petitioner has filed a rejoinder affidavit. 6. As pointed out above, the fact that the charge sheets were issued to the petitioner and that an enquiry was held into the charges and further that the petitioner was required to show cause why he should not be removed from service, have not been denied by the opposite parties, who, however, maintain that the services of the petitioner were terminated after taking into consideration all facts of the case as also the reply submitted by the petitioner. Since the petitioner in his reply to the show cause notice had stated that he was not given full opportunity of hearing and that he was not allowed to crossexamine the witnesses whose statements were also changed by the Enquiry Officer, it was the duty of the opposite parties to have recorded a categorical finding whether, in the circumstances of the case, the petitioner could be held guilty or not especially if the petitioner, as claimed by him, was not afforded full opportunity of hearing. The Officer to whom the reply was submitted by the petitioner should have examined the merits of the contentions raised therein so as to see whether the statements of the witnesses were really changed by the Enquiry Officer as alleged by the petitioner and whether the petitioner was really denied the opportunity to crossexamine the witnesses These are the matters concerning the factual aspects of the enquiry proceedings. 7. The legal aspect is also in favour of the petitioners. 8. We have already indicated above that the petitioner was issued a charge sheet and an enquiry officer was appointed to enquire into the charges contained in the charge sheet. The enquiry officer recorded the evidence and ultimately submitted his findings holding that the petitioner was guilty. Thereafter a show cause notice was issued to the petitioner and he was called upon to explain why should he not be removed from service. It was at this stage that an order of termination was passed by a simple notice issued under the provisions of the U.P. Temporary Government Servants {Termination of Service) Rules, 1975 (hereinafter referred to as the Rules). It was at this stage that an order of termination was passed by a simple notice issued under the provisions of the U.P. Temporary Government Servants {Termination of Service) Rules, 1975 (hereinafter referred to as the Rules). The question is: could the services have been terminated at that stage of the enquiry proceedings and could the enquiry proceedings have been dropped and could, at the stage, the provisions of the said 1975 Rules have been invoked. 9. When regular departmental proceedings are instituted against & government servant on the basis of certain charges, the consequential requirement of giving an opportunity of hearing to the said government servant has to be complied with so that a categorical finding may be recorded whether the employee was guilty of the charges levelled against him or that he was innocent and had been wrongly chargesheeted. This decision is to be taken on the basis of the evidence recorded during the enquiry proceedings. If it is ultimately held that the delinquent employee was not guilty, he has to be put back to duty without any stigmatic action and without any stigma being allowed to remain on the service record. If, on the contrary, he is found guilty, appropriate punishment including removal from service has to be inflicted upon him. 10. Once the evidence has been produced by both the parties, namely, the department and the delinquent employee and a finding is recorded by the enquiry officer on the basis of the said evidence either in favour of the employee or against him, his services cannot be terminated at that stage by giving; him a simple notice of termination under the 1975 Rules. If it were not so, fallacious situation may arise where the enquiry officer might have found the delinquent to be not guilty and still the appointing authority, after dropping the departmental proceedings, may invoke the provisions of 1975 Rules and terminate the services of the said employee. If it were not so, fallacious situation may arise where the enquiry officer might have found the delinquent to be not guilty and still the appointing authority, after dropping the departmental proceedings, may invoke the provisions of 1975 Rules and terminate the services of the said employee. Another situation would be where a finding recorded by the enquiry officer that the delinquent employee was guilty of the charges levelled against him, is not approved by the appointing or the punishing authority either because of some technical or legal lacuna or because the evidence did not establish the charge and yet, in order to avoid the requirement of recording a categorical (finding) of not guilty, he may still proceed to terminate the services by issuing an innocuously worded notice under 1975 Rules. We have given just two examples to illustrate and illuminate our view. There may arise many more examples of similar situations. It is for these reasons that we say that the services cannot, at that late stage of the enquiry proceedings, be terminated by a month's notice under the 1975 Rules. This legal position is clearly discernible from the pronouncement of their Lordships of the Supreme Court in State of Punjab v: Sukhrdj Bahadur ( AIR 1968 SC 1089 ) in which their Lordships laid down five principles as follows : 1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution'. 2. The circumstances preceding or attendant' on the order of termination of service have to be examined in each case, the motive behind it being immaterial. 3. If the order visits the public servant with any evil consequence or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. 5. If there be, a fullscale departmental enquiry envisaged by Article 311. i.e. an Enquiry, Officer is appointed, a chargesheet submitted, explanation, called for and considered, any order of termination. 5. If there be, a fullscale departmental enquiry envisaged by Article 311. i.e. an Enquiry, Officer is appointed, a chargesheet submitted, explanation, called for and considered, any order of termination. of service made, thereafter will attract the operation of the said article. 11. This decision has since been considered in a number of subsequent Supreme Court decisions, as for example, in State of Nagaland v. Vasantha, ( AIR 1970 SC 537 ) and State of U.P. v. Ram Chandra Trivedi ( AIR 1976 SC 2547 ) and has been fallowed and approved. 12. The instant case is covered by the 5th principle enunciated above by the Supreme Court. In view of the above we are clearly of the opinion that the enquiry proceedings having advanced, to the stage of show cause notice could not be ignored and services terminated by simple notice issued under the 1975 Rules. We are, in the circumstances of the case, clearly of the opinion that the service of the petitioner have been terminated by way of punishment and the order of termination .contained in, Annexure7 is actually an order dismissing, the petitioner from, service in violation, of Article 311 (2) of the Constitution. 13. It may be stated that although the provisions of Article 311(2) had undergone change and the requirement of issuing a second show cause notice was deleted, the fact that such a notice was issued to the petitioner and he was required to show cause why he should not be removed from service could not be ignored, as the petitioner had submitted a reply in which he had stated that he was not given full opportunity of hearing. In any case, issuance of the show cause notice is indicative of the stage of the enquiry at which petitioners services were terminated. Even if the petitioner was found to be guilty on the basis of the enquiry held by the enquiry officer, the opposite parties could not have proceeded to terminate the services of petitioner under the 1975 Rules, as the action, at that stage, could be taken only under the provisions of the U.P., Civil Services (Classification, Control and Appeals) Rules, by inflicting upon him appropriate punishment. 14. 14. In view of the above, the writ petition is allowed and the impugned order dated 10.9.1981 contained in Annexure7 is hereby quashed, the petitioner will be entitled to all consequential benefits including the costs of the petition. (Petition allowed)