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2017 DIGILAW 1603 (RAJ)

Omprakash Sharma S/o Sh. Binni Gopal Sharma v. Judge, Industrial Tribunal, Jaipur

2017-07-20

SANJEEV PRAKASH SHARMA

body2017
JUDGMENT & ORDER : 1. The award dated 09/05/2000 passed by the Industrial Tribunal, Jaipur is assailed by the petitioner whereby the reference made through the union regarding legality of the order dt.28/05/1985, whereby the petitioner was reverted, was rejected. 2. The facts which need to be noted are that the petitioner was working with the respondents as an LDC (Tour Conductor) since 04/11/1977. On the recommendations of the selection committee he was appointed on the post of Stenographer in the pay-scale of 625-1120 vide order dt.04/05/1984 and placed on probation for a period of six months extendable by six more months. He was working as a Stenographer for Hindi as well as English languages and it is stated that he was required to work under the Chairman and two other officers and was performing his duties to the best of his abilities. Just prior to completion of probation period, on 20/04/1985. A show cause letter was issued to him alleging misconduct on his part and further asking him to show cause as to why he should not be reverted on the lower post of Tour Conductor. The allegations were levelled of mis-behaviour as well as leaving the office without completing work and before time. 3. It is submitted by the petitioner further that he was served with another letter on 24/04/1985 threatening departmental enquiry against him by the Manager. The petitioner submitted a letter to the Manager wherein he alleged personal bias and malice of the Manager towards him. It is stated that vide order dated 03/05/1985, the services of the petitioner were extended on probation for further six months w.e.f. 04/05/1985. However, before completion of six months’ probation period, he was reverted to the post of Tour Conductor (LDC) vide order dated 20/05/1985. 4. Learned counsel for the petitioner submits that the said order was challenged by the petitioner before the Civil Court where an objection was taken regarding jurisdiction and the matter travelled upto the second appeal wherein the Court allowed the petitioner to raise dispute through Union before the Industrial Tribunal and it is in the said circumstances that the reference was made to the Tribunal in the year 1997. The award was passed on 09/05/2000 whereby the Industrial Tribunal has rejected contention of the petitioner with regard to illegality of the order dated 28/05/1985. 5. The award was passed on 09/05/2000 whereby the Industrial Tribunal has rejected contention of the petitioner with regard to illegality of the order dated 28/05/1985. 5. Learned counsel for the petitioner submits that the Industrial Tribunal has fallen in error in passing the award rejecting the submissions of the petitioner. It is submitted that before the Industrial Tribunal, the witness of the respondents stated in uncertain terms that services of the petitioner had been dispensed with on account of misconduct of abusing superior officer and he was reverted on account of having used intemperate language and having indulged in indiscipline. It is also stated that on the show cause notice, the petitioner had asked pardon, no charge-sheet was served on the petitioner. Counsel for the petitioner points out that the post of Stenographer is a separate cadre in the organization while the post of LDC is in a different cadre and there is no lower post than Stenographer in the Stenographer Cadre. While promotion, as per the affidavit filed by the respondents, is available from the post of LDC to that of UDC and then on the post of Office Assistant. The reversion from the post of Stenographer to the post of LDC amounts to penalty and is stigmatic. The language of the order of reversion does not speak of unsatisfactory service during probation but is a punitive order reverting the petitioner, without conducting any enquiry, from the post of Stenographer to that of LDC. 6. Per-contra, learned counsel for the respondent submits that the petitioner had used intemperate language which was sufficient to arrived to a conclusion that his services were unsatisfactory. Apart from using intemperate language, the work and performance of the petitioner as a Stenographer was not upto the mark and for the said purpose, a show cause notice was given to him. Taking overall view of the conduct of the petitioner, he had been reverted from the post of Stenographer. It is further submitted that the order is simplicitor and does not cause any stigma on the services of the petitioner and cannot be said to be punitive in nature. He supports the order passed by the Tribunal and submits that as the petitioner was on probation, no right accrued to him to hold the post and the management could have reverted him once they found his services to be unsatisfactory as Stenographer. 7. He supports the order passed by the Tribunal and submits that as the petitioner was on probation, no right accrued to him to hold the post and the management could have reverted him once they found his services to be unsatisfactory as Stenographer. 7. Heard learned counsel for the parties and perused the material available on record as well as the case law cited at bar. 8. Firstly, this Court finds it appropriate to deal with the judgments cited from both the sides. 9. Learned counsel for the petitioner, in support of his submission, relied upon the law laid down by the Supreme Court in the case of Parshotam Lal Dhingra Vs. Union of India: AIR 1958 (SC) 36 , wherein the Supreme Court has held that in cases where a person is relieved during probation, the veil can be lifted and the Court can look behind the order to actually examine the contents on the basis of which the order has been passed. It would be appropriate to quote Para 28 of the judgment which reads as under:- (28) The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. The Union of India (Z) (supra). Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art.; 311(2), as has also been held by this Court in Shyam Lal v. The State of Uttar Pradesh, 1955-1SCR 26; ( AIR 1954 SC 369 ) (Z1) In either of the two above mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under r. 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive, operating on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh v. Union of India (N) (supra), wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 3 1 1 is not attracted. But event if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing.' If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his sub-: stantive lower rank will not ordinarily be a punishment. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his sub-: stantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a Punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or, the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government bad purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art.311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant. 10. 10. Learned counsel for the petitioner also relies on the Seven Judges Bench Judgment of the Apex Court in the case of Shamsher Singh Vs. State of Punjab and anr.: AIR 1973 SC 2192. The said case relates to termination of service of Judicial Officers who had been removed during the period of probation. Although charge-sheets had been issued to them but without pursuing further in the charge-sheets, the Judicial Officers were removed from service treating them to have unsatisfactory service during probation. The Apex Court found the order vitiated in law and held that if a misconduct is alleged, the logical manner to approach is to conduct enquiry and pass orders. 11. Learned counsel for the petitioner also relies on the judgment in the case of State Bank of India and others Vs. Palak Modi and another: (2013) 3 SCC 607 wherein the Apex Curt, after examining the law relating to probation, has held in Para 25 of its judgment as under:- 25. The ratio of the above noted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.” 12. Learned counsel for the petitioner further relies upon the judgment in the case of Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna : 2015(15) SCC 151 , wherein, after again examining the entire law relating to probation and also taking into consideration the aforesaid judgments, as quoted above, the Apex Court has held in Para 28 of its judgment as under:- 28. In the case at hand, it is clear as crystal that on the basis of a complaint made by a member of the Legislative Assembly, an enquiry was directed to be held. In the case at hand, it is clear as crystal that on the basis of a complaint made by a member of the Legislative Assembly, an enquiry was directed to be held. It has been innocuously stated that the complaint was relating to illegal selection on the ground that the appellant did not possess the requisite qualification and was appointed to the post of Chest Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent employee did not supply the documents. Be that as it may, n regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, mis-behaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. 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. 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 mis-behaviour, 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. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench.” 13. Learned counsel for the respondents, on the other hand, has taken this Court to the law laid down by the Apex Court in the case of Abhijit Gupta Vs. S.N.B. National Centre, Basic Sciences and others: (2006) 4 SCC 469 , wherein it was held in Paras 13, 14 & 17 of the judgment as under:- 13. In the case of the appellant before us, the record in uncertain terms makes it clear that every time the appellants attention was drawn to his deficiencies and he was repeatedly advised to improve his behaviour, conduct and discharge of work. True, that in some of the letters there was intemperate language used (the appellant was also equally guilty of doing that). Notwithstanding the intemperate language, we are unable to accept the contention of the appellant's counsel that the letter dated 7.4.1998 indicates that the appellant was being charged with the misconduct and, therefore, being removed from service. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents, after giving a long rope to the appellant, had come to the conclusion that the appellant's service was unsatisfactory and there was no hope of his improvement. 14. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents, after giving a long rope to the appellant, had come to the conclusion that the appellant's service was unsatisfactory and there was no hope of his improvement. 14. The real test to be applied in a situation where an employee is removed by an innocuous order of termination is: Is he discharged as unsuitable or is he punished for his misconduct? In Allahabad Bank Officers' Association and another vs. Allahabad Bank and others this Court was considering a challenge to a compulsory retirement and formulated a practical test to answer the question posed above. This Court (vide para 17) observed that if the order of compulsory removal form the service casts a stigma in the sense that it contains a statement casting aspersion on his conduct or his character, then it can be treated as an order of punishment but not if it merely amounts to highlighting the unsuitability of the employee. As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service. 17. The High Court has carefully considered all the circumstances placed before it and arrived at the conclusion that the respondent's work was under observation during the probationary period and that he was given repeated opportunities to improve his performance for which purpose his probation was extended from time to time. The fact that the authority did not find him fit for confirmation was also brought to his notice several times and yet he was given opportunities of improving by extending his probationary service. The High Court has correctly found that the letter dated 7.4.1998 was not punitive in nature and stated, albeit in prolix fashion, that the service of the appellant were unsatisfactory. The High Court points out, and we agree, that detailed reference to all other correspondence was not necessary, but it did not reflect any malice or bias. Finally, as this Court pointed out in P.N. Verma's case "a termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, does not ipso facto become stigmatic". 14. Finally, as this Court pointed out in P.N. Verma's case "a termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, does not ipso facto become stigmatic". 14. Learned counsel for the respondents also relies on the law laid down in the case of Kazia Mohammed Muzzammil Vs. State of Karnataka and another: (2010) 8 SCC 155 , however, a look on the judgment shows that the said judgment has no relevance to the issue involved in the present petition. 15. The another judgment cited by learned counsel for the respondents in the case of Chaitanya Prakesh & Anr. Vs. H. Omkarappa: JT 2010(1) SC 217, wherein it was held by the Apex Court in Paras No. 20 and 22 as under:- 20. In our considered opinion, the ratio of the above-referred decisions are squarely applicable to the facts of the present case. The respondent was time and again informed during the probation period about his deficiencies and was given ample opportunities to improve them. Therefore, enough precautions were taken by the appellants to see that the respondent improved his performance and such an opportunity was provided to him. But such advices and opportunity were totally misplaced as the respondent considered the same as unnecessary encroachment and interference in his work and wrote back rudely in an intemperate language. Whether or not a person is suitable to be retained and confirmed in service could be considered and assessed by the Managing Director, namely, appellant no. 1, but he after making an appraisal submitted his report along with all other records of the respondent before the Board of Directors, who finally took the decision. The Board of Directors constituted of responsible persons and they while deciding the suitability of the respondent not only considered the Performance Assessment Report but also considered all other records, and thereafter they took a considered and conscious decision that the respondent was not suitable for confirmation and terminate his service. The said decision of the Board of Directors appears to be in parity with the ratio of the aforesaid decisions of this Court (supra). The reasons mentioned in the letter dated 29.11.1999 - terminating the services of the respondent cannot be said to be stigmatic. The said decision of the Board of Directors appears to be in parity with the ratio of the aforesaid decisions of this Court (supra). The reasons mentioned in the letter dated 29.11.1999 - terminating the services of the respondent cannot be said to be stigmatic. The appellant had time and again specifically brought to the notice of the respondent his short comings and no misconduct as such is alleged against the respondent by the appellant and therefore the present case is a case of termination simpliciter due to unsuitability of the respondent and not a case of punishment for misconduct. 22. In view of the above, we hold that the impugned order is not stigmatic and as such the decision of the High Court is erroneous and vitiated. We accordingly, hereby set aside the same and restore the order dated 29.11.1999 passed by the appellant.” 16 Learned counsel for the respondents also relies upon the judgment passed by the coordinate Bench of this Court in the case of The Managing Director, Energetic Lighting (India) Pvt. Ltd. Vs. Presiding Officer, Shops and Commercial Establishment, Jaipur & anr. (SB Civil Writ Petition No.11901/2010), decided on 10/12/2012 wherein it was held in Page no. 24 as under:- “Since the order of confirmation would require a positive act even as per stipulation contained in condition no.6 of the letter of appointment, the employer was very much entitled to take a view about the working of the respondent no.2 in arriving at the conclusion about his overall performance. In making such decision, the petitioner was not required to hold a full fledged disciplinary enquiry or to separately provide him an opportunity of hearing. This question is therefore answered against employee respondent no.2 and in favour of petitioner employer.” 17. All the cases, which have been cited by counsel for both the sides are essentially relating to unsatisfactory service during probation period whereafter the concerned persons has been relieved from the said post by removal on the ground of unsatisfactory service. In each case, the Court has lifted the veil and examined the facts of the case to see whether the order was passed on account of the reasons which would show whether the order is stigmatic or not. 18. In each case, the Court has lifted the veil and examined the facts of the case to see whether the order was passed on account of the reasons which would show whether the order is stigmatic or not. 18. A look at the present facts of the case shows that the impugned order, which was challenged before the Labour Court, does not mention of the petitioner being reverted to the lower post on account of unsatisfactory service. It simplicitor mentions that “is reverted back to his original substantive post of Tour Operator with immediate effect.” The order has been passed on 28/05/1985 while his probation on the different post i.e. Stenographer was extended for six months from 03/05/1985 till 02/11/1985 and thus there has not been an examination of his service record with reference to his probation period but it is a case of reversion on account of delinquency as indicated in the order. From the reply, which has come on record, as quoted above, it is clear that he has been reverted because he has committed a misconduct. Reversion to a lower post amounts to penalty under the disciplinary rules. A person, who is placed in the lower pay scale without giving him opportunity of hearing would be a reversion as held by the Apex Court in the case of State of UP Vs. Sughar Singh: (1974) 1 SCC 218 “12. Confusion has arisen particularly in respect of cases where this Court has had to deal with orders of government from the aspect of the motive underlying those orders. What' is the weight to be given to motive in deciding whether a particular order is penal in character and therefore falling within the mischief of article 311 of the Constitution or whether it has been passed for departmental considerations and in exigencies of public service. It is well recognized that very often the motive of a particular order of government and the language and terms of the order itself are not in harmony. In many, cases though government take action under the terms of a contract of employment or under the specific service rules for the purpose of terminating the service or reducing the rank of an officer, the real motive or inducing factor which influences the government to take action is different and is connected with some disqualification or inefficiency of the officer. In other words. In other words. government while pretending to act in terms of the contract of service or service rules, in reality wants to get rid of the officer concerned or to reduce him to a lower rank by way of punishment for his misconduct or inefficiency or disqualification. In such a case, the action taken by government is in an innocuous form but the real intent of it is penal. Such a situation was contemplated by Das, C.J. in Parshotam Lai Dhingra's case. He observed "It is true that the misconduct, negligence inefficiency or other disqualification may be the motive or the inducing factor which influences the government to take action under the terms of contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service, the motive operating in the mind of the government is as Chagla, C.J. has said in Shrinivas Ganesh v. Union of India wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules, then, prima facie the termination is not a punishment and carries with it no evil consequences and so article 311 is not attracted." Following this enunciation of the principle this Court has in many later cases refused to give any weight to the motive operating in the mind of the authority which passes an order terminating the service of a temporary servant or reducing the servant in rank so long as the particular action taken was "founded on the right flowing from contract or the service rules." 19. Admittedly, in view of the above, the reversion order has been passed without giving opportunity of hearing and without conducting enquiry and amounts to penalty. Admittedly, the post of LDC does not fall in the same cadre as that of Stenographer. The action of the respondents, therefore, is unjustified and is held to be illegal. 20. As much time has passed from the date of passing of the order till today, no purpose would be served in directing the respondents to conduct enquiry with regard to the order of punishment passed in 1985. Even otherwise, it is informed by learned counsel for the respondents that the petitioner has attained superannuation and in view of the law laid down by the Apex Court in the case of Allahabad Bank & ors. Vs. Even otherwise, it is informed by learned counsel for the respondents that the petitioner has attained superannuation and in view of the law laid down by the Apex Court in the case of Allahabad Bank & ors. Vs. Krishna Narayan Tewari (Civil Appeal No.7600 of 2014), decided on 02/02/2017: 2017(2) SCC 308 , this Court does not find it appropriate to send the matter back to the disciplinary authority. 21. Consequently, the writ petition is allowed. Both the orders impugned dated 09/05/2000 passed by the Industrial Tribunal, Jaipur as well as the dt. 28/05/1985 passed by the Disciplinary are hereby quashed & set aside. The petitioner is held entitled to be treated as Stenographer from the date he has been reverted and would also be entitled to all the consequential benefits including continuity of service, benefit of promotion and grant of selection scale etc. The benefits which he has obtained as LDC upto superannuation and would now be obtain out of the directions of this order will be computed and after adjustment, arrears be paid to him. The petitioner shall also accordingly be paid post retiral benefits. The compliance of this order be made by the respondents within three months from the date of receipt of certified copy of this order in their office. No costs.