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2005 DIGILAW 376 (HP)

State of Himachal Pradesh v. Bhagi Ram

2005-10-05

LOKESHWAR SINGH PANTA, SURJIT SINGH

body2005
JUDGMENT : Surjit Singh, J. The State of Himachal Pradesh has filed the present writ petition, under Articles 226 and 227 of the Constitution of India, for quashing the order dated 22.7.2002, of the State Administrative Tribunal, passed in O.A. No. 1273 of 1993, titled Bhagi Ram v. State of H. P. and others. 2. Respondent Bhagi Ram was appointed as a Jail Warder on temporary basis in the H.P. Prison Department, vide appointment letter bated 18.3.1992, (Annexure P-2). He was put on probation for a period of two years vide condition 2 (1) of his appointment letter. Also, the Appointing Authority, i.e. petitioner No. 2 the Additional Director General of Prisons, reserved with him the right to terminate the services of the respondent by service of one month's notice or on State of H.P. & Anr. v. Bhai Ram 33 payment of one month's salary in lieu of notice. During two years period of probation, the work and conduct of the respondent was not found to be satisfactory, and consequently, one month's notice, Annexure P-3, terminating his services in accordance with the conditions of his appointment letter and in accordance with sub rule (1) of Rule 5 of Central Civil Services (Temporary Service) Rules, 1965, was served upon him on 10.3.1993, viz. about a year after his appointment on probation/temporary basis. The respondent made a representation on 3.4.1993 (Annexure P-5) against the notice of termination, which was rejected on 6.4.1993, vide Annexure P-6. The respondent, then filed O.A., being O.A. No. 1273 of 1993, before the H.P. State Administrative Tribunal. He challenged the notice of termination, as also his termination. It was alleged that the order of termination, had been passed in violation of the provision of Article 311 (2) of the Constitution of India. The O.A. was contested by the petitioners. The Tribunal, however, allowed the same vide order dated 22.7.2002 and quashed the order of termination and directed that the respondent be given all the consequential benefit within three months. 3. The O.A. was contested by the petitioners. The Tribunal, however, allowed the same vide order dated 22.7.2002 and quashed the order of termination and directed that the respondent be given all the consequential benefit within three months. 3. The grievance of the writ petitioners is that the State Administrative Tribunal has not applied the law relating to the discharge of probationer and termination of temporary employee correctly, with the result that the respondent, whose services had been lawfully terminated, in accordance with the terms and conditions of his order of appointment as also the relevant Rules, has been ordered to be taken back in service with full benefits. 4. Respondent has stated in the reply that no question of law is involved in the present writ petition nor does there exist any ground for interference by the High Court in the order of the Tribunal. It is alleged that the order of termination of the services of the respondent was though apparently innocuous, in fact it was a punitive order terminating the services of the respondent without complying with the requirement of Article 311 (2) of the Constitution of India and the relevant Rules and therefore, it has rightly been quashed. 5. We have heard the leaned Deputy Advocate General Sh. Vijay Thakur and the learned counsel for the respondent Mr. V.D. Khidtta, at length and also perused the record. 6. The learned counsel representing the respondent submitted that the services of the respondent had been terminated because of the writ petitioner No.2 having found him guilty of misconduct, as stated in the reply filed before the :hate Administrative Tribunal, copy Annexure P-8, and therefore, one month's notice and the subsequent order of termination, cannot be construed as an order of termination simpliciter, in accordance with the terms and conditions of the appointment and the Central Civil Services (Temporary Service) Rule, 1965. 7. In the reply, vide para 6 (v to viii), copy Annexure P-8, the writ petitioners stated that the respondent was habitual of absenting from duty and once his explanation was also called but he was let off with a warning. 7. In the reply, vide para 6 (v to viii), copy Annexure P-8, the writ petitioners stated that the respondent was habitual of absenting from duty and once his explanation was also called but he was let off with a warning. Further, it was stated that once some injuries were noticed on the face of the respondent and when he was orally asked to explain the same, he claimed that he had a fall but on a confidential inquiry, it came to light that he had been beaten up at the residence of a relative and that he had compromised the matter with his assailants. It was stated that this act of the respondent indicated that he was a coward having little regard for self respect and hence unsuitable for the post of a Jail Warder and consequently his services were terminated. 8. Now the question is whether these averments in the reply, copy Annexure P-8, take away the order of termination from the purview of an innocuous order of termination, casting no stigma on the respondent and make out a case of termination of the services on account of the respondent having been found guilty of some act of misconduct, and if, that is so, whether such order could have been passed without holding a regular inquiry in accordance with the provisions of Article 311 (2) of the Constitution of India and the relevant Rules. 9. There is nothing on the record suggesting that any inquiry was made by the Appointing Authority of the respondent to find out if he was guilty of the alleged act of misconduct and on his having been satisfied that he was guilty of misconduct, the order of termination was passed. It is only in the reply which was filed before the Administrative Tribunal, copy Annexure P-8, that it was stated that the respondent furnished false explanation regarding the injuries which were noticed on his face and on confidential inquiry, it was found that some incident at the place of one of his relatives had taken place, in which he received the injuries and later on compromised the matter with the assailant(s). 10. 10. The Hon'ble Supreme Court in M. S. Gill and another v. The Chief Election Commissioner, New Delhi and others AIR 1978 SC 851 , has held that when a statutory authority makes an order based on certain grounds, the validity or otherwise of the order must be judged on the reasons mentioned therein and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Therefore, in view of this authority of the Hon'ble Supreme Court, the validity of the order of termination of service of the respondent ought not to have been judged by the State Administrative Tribunal, on the basis of the reply, copy Ex. P-8. Otherwise also, even if it be assumed that the averments made in the reply copy Annexure P-8, could have been looked into for judging whether the order of termination of service of the respondent was valid or not, said averments in our considered view, do not make out a case taking the order of termination, which on the face of it is innocuous to the realm of a punitive order. The reply to para 6(v to viii), when read as a whole, makes it plainly clear that the respondent was in the habit of absenting from duty, once he left the station without seeking permission from his superiors and once when beaten up by some persons and asked to explain how the injuries were received by him, he offered a false explanation. Not only this, he even entered into a compromise with the assailants compromising thereby his self respect. In the reply, it is stated that these facts motivated the Appointing Authority of the respondent to dispense with his services by serving him a notice in accordance with the terms and conditions of his appointment letter and in accordance with sub rule (1) of Rule 5 of Central Civil Services (Temporary Service) Rule, 1965. 11. It is by now well settled that if a probationer is discharged or a temporary Government servant is got rid of by an order of termination simpliciter, the Courts can unveil that order by looking to the record kept by the Appointing Authority. 11. It is by now well settled that if a probationer is discharged or a temporary Government servant is got rid of by an order of termination simpliciter, the Courts can unveil that order by looking to the record kept by the Appointing Authority. If on unveiling it is found that the order of discharge/termination was founded on some act of misconduct, irrespective of the fact, whether any preliminary inquiry was conducted or not, such an order would be fall in the category of punitive order and would be bad on account of non-compliance of the requirement of Article 311 (2) of the Constitution of India and the relevant Service Rules. However, if it is found that the motive behind the passing of the order of termination was not to punish the probationer or the temporary Government servant for any act of misconduct, but simply to get rid of him, on account of his being unsuitable for the post, the same will not fall within the mischief of Article 311 (2) of the Constitution of India and would, be a valid and lawful order of discharge/termination, as per terms and conditions of the appointment and the relevant Rules. A reference in this behalf may, be made to Shamsher Singh v. State of Punjab, 1974 (2) SCC 831 , State of Uttar Pradesh v. Kaushal Kishore 1991 (1) SCC 691 and Chandra Prakash Shahi v. State of U.P. and others AIR 2000 SC 1706 . 12. As already noticed, what the Appointing Authority did in the present case, was that it considered the past conduct of the respondent, viz. he was habitual of absenting from duty and even leaving the station without seeking permission and also considered the incident in which the respondent was beaten up and then made up its mind that he (respondent) was not suitable for the post against which he had been appointed and consequently served one month's notice of termination of his service and on the expiry of the period of that notice passed the order of termination. Under these circumstances, there cannot be any manner of doubt that the order of termination is not founded on any act of misconduct, but is motivated by the consideration that the respondent was not suitable for the post. 13. Under these circumstances, there cannot be any manner of doubt that the order of termination is not founded on any act of misconduct, but is motivated by the consideration that the respondent was not suitable for the post. 13. The Hon'ble Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and another, AIR 2002 SC 23 has observed that another judicially evolved test to determine whether an order of termination is punitive, is to see whether (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. It has been held that if all the aforesaid three factors (a), (b) and (c) are present, the termination will be held to be punitive irrespective of the form of the termination order and conversely if any one of the three factors is missing, the termination will be upheld. Applying the aforesaid test also, the order of termination of service of the respondent cannot be said to be punitive. In fact, there was no allegation of any act of misconduct involving moral turpitude against the respondent nor was any full scale formal enquiry made. Similarly no finding was recorded anywhere that he has committed an act of misconduct. What weighed with the Appointing Authority was that the respondent was habitual of absenting from duty and had compromised his self respect when beaten up and inflicted injuries, even on his face, by some people at the house of his relative, by entering into some settlement with his assailants. 14. As a result of the above discussion, we hold that the State Administrative Tribunal was not right in concluding that the order of termination of the service of the respondent is punitive in nature and no inquiry, in accordance with the provisions of Article 311 (2) of the Constitution of India or the relevant Rules, having been made, the same is illegal and unjustifiable. 15. As an upshot of the above discussion, the writ petition is allowed the impugned order of the State Administrative Tribunal is set aside, meaning thereby that the order of termination of the respondent, as passed by the writ petitioner-No.2, is held to be valid and lawful.