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2006 DIGILAW 528 (GAU)

Sanjoy Deb Barma v. State of Tripura

2006-06-05

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. I have heard Mr. K.N. Bhattacharjee, learned Senior counsel, for the Petitioner and Mr. A. Ghosh, learned Government Advocate, appearing on behalf of the Respondents. 2. By an order, dated 4.8.1990, issued by the Respondent No. 2, namely, Chief Engineer, IFC & PHE Wing of the Public Works Department, Agartala, as many as 101 persons were temporarily appointed in the post of Junior Operator (Pump) under the Irrigation, Flood Control & Public Health Engineering Wingh of Public Works Department, Tripura, for a period of one year with effect from the date of joining. The name of one Sanjoy Deb Barma, son of Hira Lal Deb Barma, Village and Post Office Kalkalia, Tripura, appeared at SI. No. 76 of said order of appointment. Following this order of appointment, the Petitioner herein joined the post of Junior Operator (Pump) under the Executive Engineer, Public Health Engineering Division No. III, Udaipur, South Tripura. While the Petitioner was serving in the post of Junior Operator (Pump), an order was issued, on 15.12.1995, by the Respondent No. 3, terminating the Petitioner's appointment in exercise of powers under proviso to Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as 'the said Rules'). The Petitioner has challenged the legality and correctness of the order, dated 15.12.1995, aforementioned on the ground, inter alia, that the impugned order, dated 15.12.1995, is not an order simpliciter of termination of his appointment, for, this order is based on unfounded accusation that the Petitioner is not the person in whose favour the order of appointment, dated 4.8.1990, aforementioned was actually issued. 3. Resisting the writ petition, the Respondents have submitted to the effect, inter alia, that an inquiry was made by the Respondents/authorities concerned into a complaint received by the Respondents/authorities concerned that the present Petitioner had joined the post of Junior Operator (Pump), though he is not Sanjoy Deb Barma, son of Hira Lal Deb Barma, Village and Post Office Kalkalia, in whose favour the order of appointment, dated 4.8.1990, was actually issued and on finding substance in the complaint, so received, the Respondents/authorities concerned had no option, but to terminate the appointment of the Petitioner. It is also the case of the Respondents that the person, in whose favour the order of appointment was actually issued, never made use of the said appointment and never joined the post of Junior Operator (Pump) under the Respondent No. 3. 4. While considering the present writ petition, what is important to note is that it is not merely the form in which an order of termination is made, which is determinative of the nature of termination. It is, no doubt, true that under the proviso to Sub-rule (1) of Rule 5 of the said Rules, the service of a temporary Government servant can be terminated forthwith and no reason need be assigned for such termination and no opportunity of showing cause need be given to such a temporary Government servant before his service is terminated. At the same time, it is also true that an order of termination simpliciter cannot be passed under the proviso to Sub-rule (1) of Rule 5 of the said Rules if the order of termination leaves stigma on the temporary Government servant concerned or when the order is apparently innocuous, but, in reality, a punitive one. The reason behind this principle is that a Government servant, temporary or permanent, cannot be removed from service without giving him any opportunity of having his say in the matter if the termination of his service is stigmatic in nature or is by way of punishment, for, Article 311(2) of the Constitution of India does not permit removal of a Government servant, temporary or permanent, without holding an inquiry on the accusations made against him and without giving him reasonable opportunity of being heard in respect of the accusation made against him if the order of termination of the service of the Government servant concerned leaves stigma on the Government servant or if such an order is passed as a measure of punishment. In State of Punjab v. Sukh Raj Bahadur AIR 1968 SC 1089 , the Apex Court has culled out the tests, which may be applied for determining if the termination of service of a temporary Government servant attracts Article 311(2), the tests are: 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 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 proceeding or attendant on the order of termination have to be examined in each case the motive behind it being immaterial. 3. If the order visits the public servant with any evil consequences 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 full-scale departmental enquiry envisaged by Article 311, i.e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for an considered, any order of termination of service made thereafter will attract the operation of the said article. 5. The decision in Sukh Raj Bahadur (supra) was considered in the case of State of Bihar v. Shiva Bhikshuk Misra AIR 1971 SC 1011 and on finding that the order of termination was by way of punishment, the order was interfered with and set aside. Similar proposition of law has been indicated in State of U.P. Vs. Sughar Singh AIR 1974 SC 423 and Jarnail Singh and Ors. etc. v. State of Punjab and Ors. AIR 1986 SC 1626 . 6. Similar proposition of law has been indicated in State of U.P. Vs. Sughar Singh AIR 1974 SC 423 and Jarnail Singh and Ors. etc. v. State of Punjab and Ors. AIR 1986 SC 1626 . 6. In short while it is permissible by the Government to terminate the service of temporary Government servant by taking recourse to the proviso to Sub-rule (1) of Rule 5 of the said Rules without holding any inquiry or without giving any notice to the Government servant concerned, the fact remains that when such an order is challenged on the ground that the order of termination is aimed at avoiding the holding of an inquiry in terms of the guarantee available to even a temporary Government servant under Article 311(2) of the Constitution of India, it becomes the duty of the Court to determine if the termination, under challenge, is a termination simpliciter or it is, in substance and in fact, an order of termination of service by way of punishment or does the order of termination leave stigma on the Government servant concerned. In either case, that is, when the termination is punitive or stigmatic, the order of termination made under the proviso to Sub-rule (1) Rule 5 of the said Rules will not be allowed to survive if such an order has been made without complying with the mandate of Article 311(2). 7. What crystallizes from the above discussion is that the service of a temporary Government servant or a probationer can be terminated without assigning any reason therefore and when such a termination of service takes place, the provisions of Article 311 of the Constitution of India would not be attracted. In order to determine if an order of termination, passed under the proviso to Sub-rule (1) of Rule 5 of the said Rules, requires interference, the circumstances preceding or attendant on the order of termination shall be examined. If the order of termination visits the public servant with any evil consequence or cast a stigma on his character or integrity, such an order of termination must be treated to be an order of termination passed by way of punishment and shall be interfered with by the Court for violating the provisions of Article 311. If the order of termination visits the public servant with any evil consequence or cast a stigma on his character or integrity, such an order of termination must be treated to be an order of termination passed by way of punishment and shall be interfered with by the Court for violating the provisions of Article 311. Where the form of the order of termination is merely a camouflage for an order of dismissal for misconduct, the Court may go behind the order, lift the veil and ascertain if the termination is a termination simpliciter or the same is punitive and/or stigmatic. 8. In the present case, though couched in the language in which it is permissible to terminate a temporary Government servant's service under the proviso to Sub-rule (1) of Rule 5 of the said Rules, the fact remains that the facts leading to the impugned termination of service clearly reveal that the termination of the Petitioner's service, as a temporary Government servant, was on account of the fact that the Petitioner had allegedly misrepresented himself to be Sanjoy Deb Barma and thereby, fraudulently and dishonestly, joined the post of Junior Operator (Pump). Such termination of service was not merely punitive, but was also stigmatic in nature. In such a case, termination of service was not possible without giving reasonable opportunity of hearing to the person, who was to be adversely affected in consequence of the order of termination. 9. In other words, in the present case, though the order of termination is purportedly passed under the proviso to Sub-rule (1) of Rule 5 of the said Rules, yet the backdrop in which the order has been passed and the reasons, which the Respondents/authorities concerned have themselves assigned in the writ petition for terminating the service of the Petitioner, make in abundantly clear that though the order is shown to have been passed by invoking the proviso to Sub-rule (1) of Rule 5 of the said Rules, the fact remains that recourse to the proviso to Sub-rule (1) of Rule 5 of the said Rules has been taken merely to give the order of termination a mask or colour of an order of termination simpliciter. In short, the impugned order of termination of service, though passed in the garb of exercise of powers under the proviso to Sub-rule (1) of Rule 5 of the said Rules, the order, in question, being in reality and, in substance, punitive and stigmatic in nature attracts the mandate of Article 311(2). 10. Thus, in the case at hand, when the impugned order of termination is ex facie punitive in nature and also leaves stigma on the Petitioner, the same cannot be allowed to survive, when no opportunity had been given to the Petitioner to have his say in the matter before the impugned order was passed. 11. Because of what have been discussed and pointed out above, the impugned order, dated 15.12.1995 is hereby set aside and quashed. This order shall not, however, debar the Respondents/authorities concerned from terminating the service of the Petitioner in accordance with law. The Petitioner shall stand reinstated, but the question of his back wages shall be subject to the out come of any inquiry or disciplinary proceeding, which may be held by the Respondents/authorities concerned in accordance with law provided that the inquiry or disciplinary proceeding is commerce within a period of two months from the date of receipt of a copy of this order by the Respondent No. 2, namely, Chief Engineer, IFC & PHE Wing of the Public Works Department, Tripura, Agartala. 12. With the above observations and directions, this writ petition shall stand disposed of. No order as to costs.