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2016 DIGILAW 3236 (ALL)

SNEHA GUPTA v. STATE OF U. P.

2016-09-22

DILIP GUPTA, MANOJ KUMAR GUPTA

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JUDGMENT Hon’ble Manoj Kumar Gupta, J.—The sole issue for consideration is whether the termination of the service of the petitioner, a probationer, by giving one month’s salary in lieu of notice was a termination simplicitor and thus valid, or is stigmatic in nature and consequently, could not have been made without holding a regular disciplinary enquiry envisaged under the Service Rules. 2. Before embarking upon the legal position, the facts in brief necessary for adjudication may be noted. The petitioner applied for appointment as Assistant Professor in Civil Engineering at Madan Mohan Malviya Engineering College, Gorakhpur pursuant to an advertisement. The Selection Committee found the petitioner suitable for appointment. The recommendation of the Selection Committee was accepted by the Board of Management of the University and in pursuance thereof an appointment letter dated 26 August 2016 was issued under signature of the Registrar. In terms of the appointment letter, the petitioner was placed on probation for two years, extendable by such periods as the Vice-Chancellor may deem fit. Clause 3 (b) of the appointment letter, which is of relevance, envisages termination of service of the petitioner by giving one month’s notice or pay in lieu thereof during the initial or the extended period of probation. It reads thus : “(b) During the initial or extended period of probation her services may be terminated by the competent authority without assigning any reasons by giving him/her one month’s notice or pay in lieu thereof.” 3. The petitioner started working as Assistant Professor in the Department of Civil Engineering since 1 September 2015. According to the petitioner, on her request, a type IV quarter in the University Campus was allotted to her and she started residing therein alongwith her family. In due course, she was given additional responsibility of Hostel Superintendent of the girls hostel and was allotted two rooms in the hostel premises by an order dated 3 November 2015. She was required to take possession thereof immediately, failing which the allotment would stand automatically cancelled and the petitioner would be debarred from any further allotment. The petitioner being a married woman found it difficult to occupy the said accommodation inside the girls hostel where entry of male members was not permitted. She was required to take possession thereof immediately, failing which the allotment would stand automatically cancelled and the petitioner would be debarred from any further allotment. The petitioner being a married woman found it difficult to occupy the said accommodation inside the girls hostel where entry of male members was not permitted. The petitioner claims to have made a representation on 5 November 2015 to the Registrar to permit her to continue in possession of the accommodation allotted to her earlier, as in case she occupies the accommodation inside the girls hostel, her husband would face difficulty in accessing it. 4. However, the request of the petitioner was not acceded to. On the other hand, by communication dated 21 December 2015 issued by the Registrar, the petitioner was informed that the temporary allotment of House No. G/IV/06 in her favour has been cancelled and she should vacate the same and occupy the accommodation meant for the Hostel Superintendent. The petitioner made yet another representation on 4 January 2016 requesting the Registrar to reconsider the matter. Once again, the Registrar refused to accede to the request of the petitioner and directed her by letter dated 22 January 2016 to occupy the accommodation meant for the Hostel Superintendent. She was also warned that in case she fails to occupy the accommodation within two days, the University Administration would be compelled to initiate proceedings against her in accordance with the rules. The petitioner once again refused to abide by the direction and made another representation on 8 February 2016. In this manner, the tussle between the petitioner and the University Administration continued relentlessly. 5. The University treated the aforesaid stance of the petitioner as an act of insubordination. Accordingly, by communication dated 18/21 March 2016, the Registrar issued a warning to the petitioner stating that refusal on her part to vacate House No. G/IV/06 and occupy the quarter meant for the Hostel Superintendent amounts to gross indiscipline and may entail disciplinary action. She was given one last opportunity to vacate the temporary accommodation in her possession within seven days and to occupy the residence reserved for Hostel Superintendent. The petitioner by letter dated 4 April 2016 once again conveyed her unwillingness to occupy the quarter reserved for Hostel Superintendent. She even offered her resignation as Hostel Superintendent. 6. She was given one last opportunity to vacate the temporary accommodation in her possession within seven days and to occupy the residence reserved for Hostel Superintendent. The petitioner by letter dated 4 April 2016 once again conveyed her unwillingness to occupy the quarter reserved for Hostel Superintendent. She even offered her resignation as Hostel Superintendent. 6. On 13 April 2016 the Registrar sent a communication to the petitioner calling for her explanation as to why action should not be taken against her for having failed to discharge the responsibilities attached to her post. It was stated therein that the petitioner had failed to take possession of the house allotted to her as a Hostel Superintendent and had rather indulged in unnecessary correspondence. Apart from it, certain other charges were also levelled against the petitioner. It was alleged that she failed to upload the attendance of the students of the odd semester 2015-16 on the University web portal despite reminder dated 11 January 2016 indicative of her lackadaisical attitude; she was found late in time for taking classes for which the Head of Department issued a warning to her. It was concluded that the petitioner was not discharging her responsibilities in a proper manner. In response thereto, the petitioner submitted a detailed reply on 19 April 2016 offering explanation to each and every charge and disputing the correctness of the imputations. It was followed by another notice from the Registrar dated 25 April 2016 calling for an explanation from the petitioner as to how she had installed an air conditioner in House No. G/IV/06, which was alleged to be in her possession unauthorisedly. On 26 April 2016 the petitioner offered explanation to the said notice stating that she was unaware of the requirement of taking permission before installing air conditioner but as soon as the said provision came to her knowledge, she had requested for permission by her letter No. 1120/2016. She further stated that her mother is a patient of diabetes and blood pressure and requested for the connection of the air conditioner being restored, as otherwise the condition of her mother may deteriorate. The petitioner was thereafter served with an office order dated 2/4 May 2016 issued under signatures of the Registrar stating that a Committee comprising of Professor Udai Shankar, Professor S.K. Srivastava and Dr. The petitioner was thereafter served with an office order dated 2/4 May 2016 issued under signatures of the Registrar stating that a Committee comprising of Professor Udai Shankar, Professor S.K. Srivastava and Dr. P.K. Singh has been constituted for holding an enquiry against the petitioner for (i) not occupying the official accommodation reserved for hostel superintendent; (ii) offering resignation from the post of Hostel Superintendent; (iii) not uploading the attendance of the students; (iv) not taking the prescribed classes and (v) installing air conditioner in the Transit Hostel without permission from the University authorities. The Committee was required to hold an enquiry and submit its report within seven days. The Committee summoned the petitioner on 14 May 2016. The petitioner appeared before the Committee on the assigned date and time. According to the petitioner, the Committee asked certain questions from her and required her to submit explanation in writing by 4:00 p.m. on 26 May 2016. In this regard, the Chairperson of the enquiry Committee also issued an order in writing on 19 May 2016 requiring her to submit her written explanation in regard to (a) not vacating the accommodation allotted to her on temporary basis; (b) not occupying the accommodation allotted to her as Hostel Superintendent; (c) installing air conditioner in Transit Hostel without permission; (d) failing to discharge her duties by not taking the prescribed classes and (e) not uploading the attendance of the students on the web portal at regular intervals. She was also required to furnish information as to whether any male employee is working in girls hostel and to disclose the name of the persons living alongwith her in the accommodation she was occupying. 7. The petitioner claims to have offered explanation in writing on all the points on 23 May 2016. According to the petitioner, nothing further happened before the enquiry Committee and abruptly, she was served with an order dated 6 June 2016 by the Registrar communicating the decision of the Board of Management of the University taken in the meeting held on the same date dispensing her services under Clause 3 (b) of the Appointment Order by giving one month’s salary in lieu of notice. The order of the Registrar reiterates the charges on which her explanation was sought by the enquiry Committee and further states that she has been found guilty of the charges levelled against her. The order of the Registrar reiterates the charges on which her explanation was sought by the enquiry Committee and further states that she has been found guilty of the charges levelled against her. This was held to be a violation of the terms and conditions of the Appointment Order and the Employees Conduct Rules. Aggrieved, the petitioner has preferred the instant writ petition. 8. The University has filed a counter-affidavit in which it has tried to justify its action in dispensing with the services of the petitioner. It is pleaded that the petitioner was obliged to discharge administrative responsibilities assigned on her as per Clause 4 of the appointment order but she failed to discharge the same by offering resignation as Hostel Superintendent and by refusing to occupy the residence reserved for the person holding that post. It is alleged that Quarter No. G/IV/06 allotted to the petitioner in the beginning was the Transit hostel meant for the temporary housing only and after she had been allotted the accommodation reserved for Hostel Superintendent, her insistence to continue in occupation of the Transit Hostel was wholly unjustified. The act of the petitioner in installing the air conditioner in an accommodation which she had been asked to vacate was an act of gross misconduct. The University was therefore compelled to hold an enquiry into these repeated acts of misconduct by constituting a three member Enquiry Committee. 9. The reason why the Board did not find the petitioner suitable for continuing as Assistant Professor has been disclosed in para 28 of the counter-affidavit in the following words : “Board of Management did not find petitioner suitable for continuing as Assistant Professor in view of petitioner found to be guilty of various misconducts such as non-compliance of orders, offer to resign from assignments, unpardonable academic impropriety of granting attendance to the absent students for making them overcome shortfall of their attendance and facilitating their appearance in examination, which was not possible otherwise as these students actually did not attend requisite classes, not taking classes regularly, failure to upload attendance regularly, unauthorized installation of air conditioner in temporary premises when proper allotment of another accommodation was made to petitioner.” 10. In para 29 of the counter-affidavit it is asserted that the action of the petitioner in “granting attendance to anyone absent in the class and recommending for allowing the students in examination based on such forge attendance” amounts to “academic fraud” and casts doubt on her “integrity”. It is claimed that these acts of serious misconduct on part of the petitioner were considered by the Board of Management and it resolved to terminate the services of the petitioner. Since she was a probationer, as such the termination of her service has been effected by passing a simple order of discharge as provided under Clause 3 (b) of the appointment order. The termination of the service of the petitioner by means of a simple order of discharge is neither stigmatic nor punitive but strictly in terms of the appointment order. 11. The tenure of a probationer or a temporary employee as the term connotes is of a precarious nature. The employer has a greater degree of latitude available to him to dispense with the service of such an employee. He can adopt one of the two modes. A simple order of discharge often called as ‘termination simplicitor’ in terms of the contract of the service or the rules governing such an employee could be passed. Generally that is possible by giving one month notice or pay in lieu thereof. In such a case, the order is not considered punitive, nor disentitles an employee to re-employment. Consequently, neither Article 311 applies nor a regular disciplinary enquiry is required to be conducted. However, in case the employer chooses to terminate the service on the ground of misconduct, he is required to hold an enquiry, prove the guilt and comply with the requirements of Article 311, in case it is applicable. The reason being that such an order is stigmatic in nature and thus, requires an enquiry to be held in compliance of the provisions enshrined in the Constitution and/or the service rules, as the case may be. This position, however, gets complicated when the employer ostensibly adopting the first course, infact, terminates the service on account of the misconduct of the employee. The order of termination of service may still be couched in innocuous language not reflective of the fact that the order of discharge had its genesis in a delinquency which in the wisdom of the employer stands established. The order of termination of service may still be couched in innocuous language not reflective of the fact that the order of discharge had its genesis in a delinquency which in the wisdom of the employer stands established. Dealing with such situations, there are plethora of judgments of the Supreme Court, some of which were also referred to by learned counsel for the parties. Instead of taking a detour through these judgments, we find it convenient to quote the following paragraphs from the judgment of the Supreme Court in the case of Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and another, (1999) 2 SCC 21 , which succinctly takes note of the development of law on the subject : “18. The first decision of the Constitution Bench was in Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36 . There a twin test was laid down - whether the order in terms of the appointment gave a right to terminate and whether the order was punitive in nature. If misconduct was the motive, the order was not punitive but if it was the foundation, it was punitive. In that case, the employee was working in a higher post in an officiating capacity and that appointment was terminated and he was reduced in rank. S.R. Das, C.J. stated (para 28) (p 49) that misconduct, negligence, inefficiency or other disqualification might be the motive or the inducing factor which influenced the Government to take action under the terms of the contract of employment or the specific service rule, and the motive was irrelevant. But if the termination was “founded” on misconduct, negligence, inefficiency or other disqualification, it would have to be treated as a punishment. It was also held that the use of the word “termination” or “discharge” was not conclusive. In spite of the use of such innocuous expressions, the Court could still hold it to be punitive. On the facts of the case the termination of the officiating appointment was based upon certain adverse remarks and it was held that it was not by way of punishment. 19. Next came the decision of the Constitution Bench in State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689 . Here a test of “enquiry” was laid down. That was a case of a probationer. 19. Next came the decision of the Constitution Bench in State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689 . Here a test of “enquiry” was laid down. That was a case of a probationer. The Government had come to the conclusion on enquiry that the respondent was unsuitable for the post held on probation. Because of the enquiry, Sinha, C.J. held this to be “clearly by way of punishment”. Termination (without notice) but after holding an enquiry into the alleged misconduct or inefficiency or some similar reason would be punitive. Government could not “brand him dishonest and incompetent without enquiry”. If it did so, it would be by way of punishment, but not if the position “was that he was found unsuitable”, without holding an enquiry. Both Dhingra, AIR 1958 SC 36 and Gopi Kishore Prasad, AIR 1960 SC 689 , were decided when the law in this branch was just developing. 20. However Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das, 1961 SC 177, gave a new dimension to the legal principles. That case also related to a probationer but was governed by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules which was a special provision and which stated: “Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show-cause against it, before orders are passed by the authority competent to terminate the employment.” If the test of “enquiry” laid down by Sinha, CJ was to be applied, every termination of a probationer made by following the rule and conducting an enquiry would become punitive. The “enquiry test” (as pointed out by Krishna Iyer, J. in Samsher Singh case, (1974) 2 SCC 831 ) broke down. A new test had to be invented. Therefore Shah, J. (as he then was) laid down a new test which required that one should look into “object or purpose of the enquiry” and not merely hold the termination to be punitive merely because of an antecedent enquiry. A new test had to be invented. Therefore Shah, J. (as he then was) laid down a new test which required that one should look into “object or purpose of the enquiry” and not merely hold the termination to be punitive merely because of an antecedent enquiry. J.C. Shah, J (as he then was) said: “Whether it amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry.” (emphasis supplied) 21. The learned Judge pointed out that the employed being a probationer, “the enquiry against the respondent was for ascertaining whether he was fit to be confirmed”. (emphasis supplied) His Lordship pointed out that this enquiry was not of the same nature as an enquiry into charges of misconduct, negligence, inefficiency or other disqualification. On the facts of the case, the termination of a probationer was upheld inasmuch as the purpose of the enquiry was to find out if the employee could be confirmed. The purpose of the enquiry was not to find out if he was guilty of any misconduct, negligence, inefficiency or other disqualification. 22. We then come to the third case decided by the Constitution Bench in Madan Gopal v. State of Punjab, AIR 1963 SC 531 . Here Shah, J. (as he then was), applied the same principle laid down earlier by him but in this case, he held that the order was punitive. That was a case of a temporary employee. There was a report of the Settlement Officer about the “misconduct” of the employee and the termination was based on the said report. It was, therefore, held that though the order of termination was an order simpliciter, still the Court could go behind the same and further, if the foundation was the finding as to misconduct, then the order was punitive. The termination order was quashed even though the employee participated therein because the statutory procedure for a regular departmental enquiry was not followed. Emphasis was again made on the “purpose of the enquiry”. The termination order was quashed even though the employee participated therein because the statutory procedure for a regular departmental enquiry was not followed. Emphasis was again made on the “purpose of the enquiry”. The distinction between the earlier case and this case was that while in Ram Narayan Das case, 1961 SC 177, the enquiry was made to find out if the probationer could be continued and confirmed and was, therefore, not punitive, the position in the Madan Gopal case6 was that the enquiry by the Settlement Officer was to find out if the employee was guilty of misconduct. In fact, the termination order was based on the enquiry held behind his back and was held to be punitive. In Ranendra Chandra Banerjee v. Union of India, AIR 1963 SC 1552 , being a case of a probationer to whom Rule 55-B of the Central Rules applied, Wanchoo J. (as he then was) upheld the order on the ground that the limited purpose of the enquiry was to find out whether he could be “retained or not” in the service. In other words, the enquiry was not with a view to see if the employee had misconducted in his duties. This case was similar to Ram Narayan Das case, 1961 SC 177. 23. The theory of “object of the enquiry” was further emphasised by the Constitution Bench in Jagdish Mitter v. Union of India, AIR 1964 SC 449 . That was a case of a temporary employee. The discharge from service was by way of an order “simpliciter”. But there, an enquiry was held and the termination order was based on it as it stated on its face that it was “found undesirable” to retain the employee and hence his services were being terminated. The order was held to be punitive on its face and was quashed. Gajendragadkar, J. (as he then was) discussed the earlier cases and held that in every case the purpose of the enquiry was crucial. If the enquiry was held “only for the purpose of deciding whether the temporary servant should be continued or not”, (emphasis supplied) it could not be treated as punitive and that the motive operating in the mind of the authority was not relevant. But “the from in which the order terminating the service is expressed will not be decisive”. If the enquiry was held “only for the purpose of deciding whether the temporary servant should be continued or not”, (emphasis supplied) it could not be treated as punitive and that the motive operating in the mind of the authority was not relevant. But “the from in which the order terminating the service is expressed will not be decisive”. It was held: “What the Court will have to examine in each case would be, having regard to the material facts existing up to the time of discharge, is the order of discharge, in substance one of dismissal ?” (emphasis supplied) Therefore, the “form” was not of importance but the “substance” was. 24. Finally, we come to the seventh case, Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854 , a case strongly relied upon by the learned counsel for the respondent, Shri J.M. Khanna. Here, it was the case of a preliminary enquiry which was intended to find out if a prima facia case was made out to start a regular departmental enquiry. The question was whether a termination order passed soon after the completion of the preliminary enquiry could be treated as punitive. Wanchoo, J. (as he then was) held that it could not be so held. Once the preliminary enquiry was over, it was open to the employer not to make a regular enquiry for proving the guilt of the employee. The employer could stop at that stage and pass a simple order of termination. The facts as gathered or revealed in the preliminary enquiry would be the “motive” and not the “foundation” since there was no enquiry as to their correctness made. The order could not be quashed as being punitive. 25. We finally come to the seven-Judge Judgment rendered in Samsher Singh v. State of Punjab, (1974) 2 SCC 831 , to which we made a brief reference at the beginning of this Judgment. The case concerned two Judicial Officers. So far as the termination order passed against Sri Ishwar Chand Agarwal was concerned, it was quashed holding it to be punitive as it was based on the report of an enquiry officer appointed by the Director of Vigilance. The enquiry officer recorded statements of witnesses behind the back of the officer and definitive findings therein were the basis for the termination. It was not a preliminary enquiry. The enquiry officer recorded statements of witnesses behind the back of the officer and definitive findings therein were the basis for the termination. It was not a preliminary enquiry. A.N.Ray, C.J. held that the object of the said enquiry was : “to ascertain the truth of allegations of misconduct. Neither the report nor the statements recorded by the enquiry officer reached the appellant. The enquiry officer gave his findings on allegations of misconduct. ... The order of termination was because of the recommendations in the report. The order of termination of the services of Ishwar Chand Agarwal is clearly by way of punishment in the facts and circumstances of the case.... The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may, in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case, the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside.” (emphasis supplied) A.N.Ray, C.J.. wrote the opinion for himself and five other learned Judges. Krishna Iyer, J. wrote a separate but concurring Judgment where he referred to the new dimension to the law given by Shah, J. (as he then was) in the sixties. The learned Judge said that the words “form”, “substance”, “motive” and “foundation” were baffling and the need of the hour was a simple test. 26. If there was any difficulty as to what was “motive” or “foundation” even after Samsher Singh case5, the said doubts, in our opinion, were removed in Gujarat Steel Tubes v. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593 , again by Krishna Iyer, J. No doubt, it is a labour matter but the distinction so far as what is “motive” or “foundation” is common to labour cases and cases of employees in the Government or the public sector. The learned Judge again referred to the criticism by Shri Tripathi in this branch of law as to what was “motive” or what was “foundation”, a criticism to which reference was made in Samsher Singh case (1974) 2 SCC 831 . The clarification given by the learned Judge is, in our opinion, very instructive. It reads as follows: “53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic process but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used. 54. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here.” (emphasis supplied) 27. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here.” (emphasis supplied) 27. In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wise to go into their truth but decides merely not to continue a dubious employee. The master does not want to decide or direct a decision about the truth of the allegations. But if he conducts an enquiry only for the purpose of proving the misconduct and the employee is not heard, it is a case where the enquiry is the foundation and the termination will be bad. 28. Subsequent to the above cases, there have been a number of other cases where the above principles have been applied. We shall refer to a few of them where some more principles have been discussed. In State of U.P. v. Ram Chandra Trivedi, (1976) 4 SCC 52 , the employee’s services were terminated as he allowed some other employees to impersonate him in an examination. The order was innocuous but the case was preceded by an enquiry and it was held that the petitioner in his pleadings had not made out a case for calling for departmental records to examine if it was a case of punishment. That was how this case was explained by Pathak, J. (as he then was) in State of Maharashtra v. Veerappa R. Saboji, (1979) 4 SCC 466 . In Anoop Jaiswal v. Government of India, (1984) 2 SCC 369 , it was held while quashing the order of termination that it was open to the Court to go behind the order and find out if the report/recommendation of the superior authority was a camouflage and if that was the basis or foundation for the order, then the report/recommendation should be read alongwith the order for the purpose of determining the true character of termination. If on a reading of the two together, the Court reached the conclusion that the alleged finding of misconduct was the cause or basis of the order, and that but for the report containing such a finding, the order would not and could not have been passed, the termination order would have to fall to the ground as having been passed without the officer being afforded a reasonable opportunity. It was also held that it was wrong to presume that an order would be punitive only if a regular enquiry was conducted ex parte or behind the back of the officer. Even if it was not a regular enquiry, any other enquiry where evidence was taken and findings were arrived at behind the back of the officer, would make the subsequent termination bad. Vankataramiah, J. (as he then was) pointed out in the above case the shift in the law as brought about by Samsher Singh’s case (1974) 2 SCC 831 . 12. Thus, in Radhey Shyam Gupta (supra) the Supreme Court reiterated the principle that when motive behind the enquiry is to ascertain the suitability of an employee, the consequent discharge is not punitive. On the other hand, when the purpose of the enquiry is to establish the guilt on part of the employee, the termination order though worded innocuously, would not detract from its nature of being an order of dismissal. It is wholly immaterial that the grounds are recorded in a different proceeding other than the order of discharge. The Courts are empowered to pierce the veil and find out the real intention behind the passing of the order. 13. In a recent decision of the Supreme Court in Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others, AIR 2016 SCC 467 , the issue was whether the termination of the service of the appellant was a termination simplicitor as the order purported to be or was punitive in nature. The appellant was a Chest Therapist in Indira Gandhi Institute of Medical Sciences. A complaint was made against him that his appointment was illegal as infact he was the applicant for the post of Physiotherapist but was wrongly considered for appointment on the post of Chest Therapist. His service was terminated in terms of the investigation carried out by the Vigilance department. A complaint was made against him that his appointment was illegal as infact he was the applicant for the post of Physiotherapist but was wrongly considered for appointment on the post of Chest Therapist. His service was terminated in terms of the investigation carried out by the Vigilance department. The Government tried to justify its action by contending that termination simplicitor was permissible as per the conditions of the appointment order, whereas the appellant contended that the motive behind the enquiry was to ascertain the truth of various allegations of misconduct and consequently, it was stigmatic in nature. The Supreme Court noticed that the report that was submitted by the Vigilance department mentions about the conduct and character of the appellant. It indicated misconduct, misbehaviour and disobedience on part of the appellant. The counter-affidavit filed by the department reiterated the misbehaviour on part of the appellant. In the aforesaid background facts, the Supreme Court held that: “The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter-affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter.” 14. Applying these principles to the facts of the instant case, we have no hesitation in holding that the impugned order of discharge is punitive in nature, as it has its foundation in the charges which, according to the respondents, stood established in the enquiry held by the three member Committee. Applying these principles to the facts of the instant case, we have no hesitation in holding that the impugned order of discharge is punitive in nature, as it has its foundation in the charges which, according to the respondents, stood established in the enquiry held by the three member Committee. The three member Committee found that (a) offer of resignation by the petitioner from the post of Hostel Superintendent is reflective of her lackadaisical attitude and is violative of condition No. 4 of the appointment order; (b) installation of air conditioner in an accommodation allotted to her on temporary basis without permission is reflective of her whimsical attitude and amounts to gross indiscipline; (c) failure to upload the attendance of the students on the web portal of the University periodically and awarding attendance to students whose attendance was short makes her integrity doubtful and her act unpardonable; (d) refusal on part of the petitioner to occupy the residence reserved for Hostel Superintendent was without any justifiable cause and the petitioner had thereby failed to discharge the responsibilities assigned to her; and (e) apart from not taking interest in discharging her duties as a teacher, she had tried to exert undue pressure on the University by making representations through her mother-in-law and the same is violative of Section 79 of the Employees Conduct Rules. 15. Undoubtedly, the Committee was not formed to adjudge the general suitability of the petitioner for the post held by her but to go into the veracity of the specific charges of misconduct. The Board of Management of the University in its meeting dated 6 June 2016 deliberated upon the report of the three member Committee and having found the petitioner guilty of misconduct, instead of passing an order of dismissal, chose to have recourse to Clause 3 (c) of the letter of appointment and terminated her service by giving one month salary in lieu of notice. The attending facts leading to the discharge of the petitioner leaves no manner of doubt that the foundation of the order is the alleged delinquency on part of the petitioner, which stood established in the enquiry held by the three member Committee. 16. The attending facts leading to the discharge of the petitioner leaves no manner of doubt that the foundation of the order is the alleged delinquency on part of the petitioner, which stood established in the enquiry held by the three member Committee. 16. Apart from what has been held above, this Court finds that in the instant case, it was not even necessary to dwell on these aspects, as the decision of the Board of Management dated 6 June 2016 is ex facie stigmatic. It holds the petitioner guilty of indiscipline, insubordination, non-cooperation, dereliction of duty and of being a person of doubtful integrity. Even in the communication issued by the Registrar on 6 June 2016 intimating the petitioner the decision of the Board of Management, it is explicitly recorded that the petitioner had been found guilty of misconduct and breach of various conditions of the order of appointment. 17. In Jagdish Mitter v. Union of India (supra) the Constitution Bench was considering the validity of order of discharge of an employee which was worded thus : “Jagdish Mitter, a temporary second division clerk of this office, having been found undesirable to be retained in Government service, is hereby served with a month’s notice of discharge with effect from 1 November 1949.” 18. The Supreme Court held that the word ‘undesirable’ casts aspersion on the employee and consequently, such an order could have been passed without complying with the provisions of Article 311 of the Constitution. The relevant observations made by the Supreme Court in this regard are as under : “.........It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: Does the order cast aspersion or attach stigma to the officer when it purports to discharge him? As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: Does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal. That being so, we are satisfied that the High Court was in error in coming to the conclusion that the appellant had not been dismissed, but had been merely discharged.” 19. In Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation and another, (2007) 10 SCC 71 , the Supreme Court held that where the language used in the order of termination of service of a probationer is ex facie stigmatic, the order is to be held punitive in nature. In that case, the appellant was found absent from duties and guilty of negligence and carelessness. He was discharged from service in accordance with the statutory provisions. The Supreme Court held thus : “9. The tests governing termination of probation are no longer res integra. When a disciplinary enquiry is initiated on the premise that there are serious allegations of misconduct on the part of the delinquent officer; his explanation thereupon had been rejected pursuant whereto a full scale formal enquiry has been initiated culminating in a finding of guilt, the order terminating the service would be held to be stigmatic. There may also be cases where the allegations involved moral turpitude on the part of the delinquent officer. The language used in the order of termination of service may ex facie be stigmatic. The language used therein may also show that there was something over and above the assertion that the officer was found unsuitable for the job. The aforementioned tests, however, are not exhaustive. 10. We may apply the said tests in the instant case. In the instant case, the language used in the impugned order is ex facie stigmatic. It referred to the earlier orders containing allegations of misconduct on the part of the appellant and the fact that he had been found guilty thereof. The appellant was said to have absented himself from duties. In the instant case, the language used in the impugned order is ex facie stigmatic. It referred to the earlier orders containing allegations of misconduct on the part of the appellant and the fact that he had been found guilty thereof. The appellant was said to have absented himself from duties. He had been found guilty of negligence, carelessness and showing absolute disregard towards his duties. A disciplinary proceeding was initiated therefor. His explanation to the show-cause notice was rejected. He was, therefore, found guilty of the charges levelled against him. Only thereafter, he was discharged from service by reason of the impugned order dated 29.4.2003. 28. From the discussions made hereinbefore, it is evident that termination of services of the appellant purporting to discharge him simplicitor cannot be accepted, being stigmatic in nature. The form of the order terminating the services coupled with the background facts clearly leads to the conclusion that the order impugned in the writ petition by the appellant was punitive.” 20. In Major Singh v. State of Punjab and others, (2000) 9 SCC 473 , the Supreme Court, considering the language used in the order, held it to be stigmatic, by holding thus : “4. Having heard learned Counsel for the parties, in our view, it is impossible on the facts of this case to sustain the impugned order of the High Court. The reason is obvious. A mere look at the termination order shows that aspersions regarding the conduct of the appellant have been cast in the order. Not only that but the order which consists of five pages read as a whole shows that the appellant is completely stigmatised. We may quote relevant extracts from the said impugned order of termination. In the first para it is stated that having considered the conduct and the work of the appellant it is mentioned that his knowledge of law and police rule is much less. He remains loose and weak on his duty. He is in the habit of remaining absent from his duty and in this connection his in-charge has warned him so many times. No special thing came to mind about his good character...... He is of violent type and confronting his companions. Then a list mentioning his earlier service record and punishments imposed on him is given. Three instances where censure punishment was imposed on him are mentioned. No special thing came to mind about his good character...... He is of violent type and confronting his companions. Then a list mentioning his earlier service record and punishments imposed on him is given. Three instances where censure punishment was imposed on him are mentioned. Thereafter, a detailed narration is made about his unsatisfactory work and then in the sixth para, referring to the appellant’s own stand before the authorities, it is mentioned that in the opinion of the authority passing the order the appellant could not control himself and had made hooliganism after consuming liquor in the barracks. In the penultimate paragraph it is mentioned that in the details given above, it is proved that he is not fit to become a good police officer and he failed to submit a sound ground in his defence by appearing before him in person thus keeping him for more time in the department is not in the interest of department as well as of the nation (public) thus he dismissed constable Major Singh, No. 80/173 under Rule 12.21 on 14.2.92 afternoon from Government service. 5. To say the least, the order itself shows that the authority concerned was out to dismiss him from service because of his alleged misconduct as a police constable. It is difficult to appreciate how this order, the way it is couched and spread over five pages, could have been treated as an order discharging the appellant from service without casting any stigma as, with respect, wrongly assumed by the learned Single Judge of the High Court.” 21. In the case at hand, the language employed in the order of discharge being ex facie stigmatic, we have no hesitation in holding that the order is punitive in nature. It cannot be characterised as a merely an order of discharge of a probationer on ground of unsuitability to the post. 22. Indisputably, the petitioner was an employee of the University as defined under Section 2 (h) of the Uttar Pradesh Madan Mohan Malviya University of Technology Act, 201317 and sub-clause (ii) of Statute 59 of the Uttar Pradesh Mandan Mohan Malviya University of Technology, Gorakhpur First Statute 201518. Under Statute 49 (5) the Board of Management has been invested with the power to remove an employee from service on grounds of misconduct. However, it could be done only after giving due opportunity to the employee. Under Statute 49 (5) the Board of Management has been invested with the power to remove an employee from service on grounds of misconduct. However, it could be done only after giving due opportunity to the employee. In the instant case, as noticed above, although a three member Committee was constituted by the Board of Management for enquiring into the imputations of misconduct against the petitioner but the enquiry Committee except for asking the petitioner to submit written explanation in relation to certain queries did not itself hold any oral enquiry nor granted any opportunity to the petitioner to lead evidence. Even a formal charge-sheet was never issued to her. The same was not considered necessary as the respondents were harbouring under an impression that her services could be dispensed with by a simple order of discharge as the petitioner was a probationer. As held above, even in the case of a probationer where her services are sought to be dispensed with on grounds of misconduct, a regular disciplinary enquiry is required to be held. The same having not been done in the instant case, the impugned order terminating the service of the petitioner cannot be sustained and is hereby quashed. 23. Before parting with the case, it would be necessary to deal with another objection raised by learned counsel for the respondent University regarding availability of an alternative remedy to the petitioner by way of arbitration in accordance with Section 40 of the Act. Section 40 reads thus : “40. Tribunal of Arbitration.—(1) Any dispute, arising out of a contract of employment referred to in Section 4 between the University and the employee, or between the University and the existing employees in terms of the provisions of Section 4, shall be referred to tribunal of Arbitration which shall consist of one member nominated by the Board of Management, one member nominated by the employee concerned and an umpire to be nominated by the Chancellor. (2) Every such reference shall be deemed to be a submission to arbitration on the terms of this section within the meaning of the Law of Arbitration as in force, and all the provisions of that Law with the exception of Section 2 thereof, shall apply accordingly. (3) The procedure for regulating the work of the Tribunal of arbitration shall be such as may be prescribed. (3) The procedure for regulating the work of the Tribunal of arbitration shall be such as may be prescribed. (4) The decision of the Tribunal of Arbitration shall be final and binding on the parties, and no suit shall lie in any Court in respect of any matter decided by the Tribunal.” 24. A plain reading of Section 40 would in dicate that not all dispute arising out of the contract of employment are referable to arbitration but only those which have been referred to in Section 4 of the Act. 25. Section 4 of the Act is as under : “4. Effect of incorporation of University.—On and from the commencement of this Act - (1) any reference to the Madan Mohan Malaviya Engineering College, Gorakhpur in any law (other than this Act) or in any contract or other instrument shall be deemed as a reference to the University: (2) all property, moveable and immovable, of or belonging to the Madam Mohan Malaviya Engineering College, Gorakhpur shall vest in the University; (3) All the rights and liabilities of the Madan Mohan Malaviya Engineering College, Gorakhpur shall be transferred to, and be the rights and liabilities of the University; (4) every person employed by the Madan Mohan Malaviya Engineering College, Gorakhpur immediately before the commencement of this Act shall hold his office or service in the University by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund, and other matters as he would have held if this Act had not been passed, and shall continue to do so unless and until his employment is terminated or he has opted for the University’s terms and conditions of employment; (5) notwithstanding anything to the contrary contained in any other provision of this Act, existing students of the Madan Mohan Malaviya Engineering College, Gorakhpur who joined classes before the establishment of the University under Section 4 of this Act, shall continue to pursue their academic courses and programmes of study under the enrolment and affiliation of the Gautam Budh Technical University, Lucknow, which shall conduct examinations for them and award degrees to them upon successful completion of the courses and programmes of study they are pursuing there at presently.” 26. A combined reading of these provisions would demonstrate that Section 40 contemplates reference of only those disputes between the employee and the University to the arbiral tribunal, which have come into existence as a result of Madan Mohan Malviya Engineering College, Gorakhpur being reconstituted as Madan Mohan Malviya University of Technology as per the provisions of the Act. In our considered opinion, the termination of the service of the petitioner, who was appointed much after the reconstitution of the Engineering College as an University under the Act, was not a dispute referable to Section 4. It would thus not be covered by Section 40 of the Act. 27. In consequence and for the reasons disclosed above, the writ petition is allowed. The impugned communication by the Registrar dated 6 June 2016 as well as the decision of the Board of Management of University of the even date are quashed. 28. No order as to costs.