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2022 DIGILAW 606 (JK)

Reyaz Ahmed Sohil v. State of J&K

2022-11-02

WASIM SADIQ NARGAL

body2022
JUDGEMENT/ORDER : Brief Facts 1. The petitioner has filed the present petition and has sought the following relief in the nature of Writ of Certiorari for quashing: a. Order No. ACDR/WKS/2011-12/2547, dated 12.10.2011 purportedly issued by respondent No. 3. b. Order endorsement No. BDOR/2-3, dated 09.04.2012 issued by respondent No. 4, whereby the petitioner has been dis-engaged on the ground of registration of a criminal case. With A further writ of Mandamus commanding the respondents 1 to 4 to allow the petitioner to perform the duties as Gram Rozgar Sewak in Panchayat Halqa Sarbagni A and Panchayat Halqa Sarbagni-B. With A further direction to respondent Nos. 1 to 4 to release the salary in favour of the petitioner w.e.f. August, 2011 onwards till date and continue to pay in future as well. 2. The brief facts, which lead to the filing of the present case are that the petitioner was appointed and engaged as Gram Rozgar Sevak w.e.f. 15.07.2009 and posted in Panchayat Halqa Sarbagni-A and Panchayat Halqa Sarbagni-B. As per the stand of the petitioner, he was performing his duties entirely to the satisfaction of his superior officers. The further stand of the petitioner is that a false and frivolous FIR No. 174 of 2011 was registered on 28.09.2011 which was wrongly mentioned as 28.07.2011 by the Police Station, Banihal. In the aforesaid FIR, it has been alleged that the petitioner had sold 21 bags of Government Cement to one Sh. Ayaz Ahmed S/o Sh. Abdul Rashid Naik. 3. Further the specific stand of the petitioner is that the Police Station, Banihal has presented a challan against him before the Court of learned Judicial Magistrate 1st Class, Banihal, which is based on incorrect, false and misconceived grounds. It is submitted that the aforesaid challan was presented against the petitioner and Ayaz Ahmed under Sections 409, 411/34 RPC. It is also submitted by the petitioner that even after the registration of the FIR, he was performing his duties which can be certified by a bare perusal of the attendance register. 4. Mr. R.K.S. Thakur, learned counsel appearing on behalf of petitioner argued that on the basis of the aforesaid FIR, the petitioner was dis-engaged by virtue of order dated 09.04.2012, which is impugned in the present petition in which it has been alleged that he has sold 30 bags of Government Cement. 4. Mr. R.K.S. Thakur, learned counsel appearing on behalf of petitioner argued that on the basis of the aforesaid FIR, the petitioner was dis-engaged by virtue of order dated 09.04.2012, which is impugned in the present petition in which it has been alleged that he has sold 30 bags of Government Cement. However, there is discrepancy with regard to the quantity of bags mentioned in the FIR and the impugned order. 5. The brief case of the petitioner is that the order, which is impugned in the present writ petition, is stigmatic as no opportunity of being heard has ever been given to him before passing such an order and, therefore, the same is unconstitutional, illegal and liable to be quashed. 6. Mr. Thakur argued that no show cause notice was ever issued or charge sheet ever framed against the petitioner in respect of the allegations which were leveled in the FIR and no opportunity of being heard was given to the petitioner to rebut the aforesaid allegations. Learned counsel further submits that no enquiry whatsoever was ever conducted by the respondents before dis-engaging the petitioner from the service on the ground of the alleged misconduct and registration of FIR. He submits that the petitioner has been appointed after proper selection by the Committee headed by the District Development Commissioner, Ramban and, therefore, has a vested right of continuously holding the office and, thus, the respondents, by no such imagination, could have dis-engaged him on the alleged misconduct which has yet to be probed without following the principles of natural justice. He has argued that the petitioner was allowed to continue after his first year of service which expired on 15.07.2010 as his work and conduct was found satisfactory and he continued thereafter. 7. It is the specific stand of the petitioner that in the light of terms and conditions mentioned in the engagement order, it has been emphatically made clear that the service of the petitioner would continue till the availability of funds/scheme. As per the petitioner, since the funds were available and scheme was also in vogue, therefore, his service could not have been terminated on the ground of alleged misconduct, moreover, without following the principles of natural justice and he has vested right of continuance in conformity with the terms and conditions of the engagement order. 8. As per the petitioner, since the funds were available and scheme was also in vogue, therefore, his service could not have been terminated on the ground of alleged misconduct, moreover, without following the principles of natural justice and he has vested right of continuance in conformity with the terms and conditions of the engagement order. 8. Per contra, the reply has been filed by the respondents, wherein, they have admitted that the petitioner was dis-engaged after the registration of FIR lodged against him. It is stated that the Block Development Officer, Ramsoo recommended necessary action against the petitioner pursuant to the communication issued by the Assistant Commissioner Development, Ramban to dis-engage him from service. The respondents have tried to justify the issuance of order impugned which has been issued by the competent authority after due application of mind. The respondents have also relied upon Circular No. 15-RD-NREGA of 2010, dated 14.12.2010, wherein, it has been made emphatically clear that the service of the petitioner shall be terminable with immediate effect on the basis of proven non-performance or mis-performance and, accordingly, they have justified the disengagement of the petitioner. 9. I have heard learned counsel for the parties and perused the record. 10. The order impugned has been issued against the petitioner on the basis of some FIR which is registered against him. The order, which is impugned in the present petition, is stigmatic, and, thus, the respondents were under legal obligation to have conducted a detailed enquiry against the petitioner by providing him opportunity of being heard with regard to his alleged misconduct and allegations leveled against him in the FIR. 11. The respondents, in the present case, have issued the order impugned in a haste manner without conducting any enquiry, as such, the same is stigmatic and punitive in nature. The petitioner has been condemned unheard and, thus, the stigmatic order of dis-engagement cannot sustain the test of law as the allegations of alleged misconduct have not been enquired into by the respondents nor any opportunity of being heard has been given to the petitioner to rebut the allegations leveled in the FIR. 12. The respondents have also taken a specific stand that the service of the petitioner shall be terminable with immediate effect on the basis of proven non-performance or mis-performance and, accordingly justified that the order impugned is legal and cannot be quashed. 12. The respondents have also taken a specific stand that the service of the petitioner shall be terminable with immediate effect on the basis of proven non-performance or mis-performance and, accordingly justified that the order impugned is legal and cannot be quashed. However, from a perusal of the order impugned, there is no whisper with regard to any non-performance or mis-performance on the part of the petitioner, which could be the basis for issuance of order impugned. On the other hand, the service of the petitioner has been disengaged on the basis of FIR in which allegations have been leveled against the petitioner that he has sold 30 bags of Government Cement. 13. The alleged misconduct/allegations leveled in the FIR was required to be enquired into by the respondents by virtue of a detailed enquiry and after providing an opportunity of being heard to the petitioner, but, in the present case, the respondents without conducting any enquiry have terminated/dis-engaged the petitioner from the services, which is palpably bad in the eyes of law as the order impugned has been passed in violation of the principles of natural justice. 14. The Supreme Court has extensively reviewed the case-law to determine whether termination is simpliciter or punitive in character and, whether misconduct on the part of an employee is the "motive" or "foundation" for terminating his services. 15. Reference in this regard is made in case titled Ravindra Kumar Misra v. U.P. State Handloom Corpn. Ltd., 1987 Supp SCC 739, wherein, the Hon'ble the Supreme Court has held that for finding out the effect of the order of termination, the concept of "motive" and "foundation" has to be kept in mind. It was further observed that no straitjacket test can be laid down to distinguish the two, namely, the "motive" and the foundation". Whether motive has become the foundation has to be decided by the court with reference to the facts of a given case. It was also observed that "motive" and "foundation" are certainly two points of one line-ordinarily apart but when they come together, "motive" gets transformed and merged into "foundation". Whether motive has become the foundation has to be decided by the court with reference to the facts of a given case. It was also observed that "motive" and "foundation" are certainly two points of one line-ordinarily apart but when they come together, "motive" gets transformed and merged into "foundation". It was also observed that since in regard to a temporary employee or an officiating employee an assessment of the service is necessary, merely because the authority proceeds to make an assessment and records its views, it would not be available to the utilized to make the order of termination, following such assessment, punitive in character. 16. The Hon'ble Supreme Court in Union of India & Anr. v. Tulsi Ram Patel, A.I.R. 1985 S.C. 1416 has held that the services of an employee cannot be terminated unless there are sufficient reasons given for dispensing with the enquiry. Even after conviction, such reasons would have to be recorded so as to withstand judicial scrutiny. Time and again, it has been observed that it is the conduct which leads to conviction that could form the basis of dismissal or termination of the services of an employee. Here there is only registration of an F.I.R. and thus when mere conviction cannot form the basis of dismissal then how can the respondents justify dismissal simply on registration of F.I.R. 17. In V.P. Ahuja v. State of Punjab & Ors., 2000 (2) S.C.T. 327 : (2000) 3 SCC 239 , wherein the Apex Court held that even a temporary servant is also entitled to certain protection and his services cannot be terminated in stigmatic manner without holding an inquiry. The relevant part reads as under:- "6. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated in a punitive manner without complying with the principles of natural justice." 18. In Parshotam Lal Dhingra v. Union of India, 1958 AIR (SC) 36, the Hon'ble Supreme Court in para 14 observed as under:- “Article 311 does not, in terms, say that the protections of that article extend only to persons who are permanent members of the services or who hold permanent civil posts." 19. In Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. In Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd., (1999) 2 SCC 21 , which related to a probationer, the whole legal position was reviewed by M. Jagannadha Rao, J., in an illuminating and research oriented judgment and after considering various decisions including the decision in Kaushal Kishore Shukla's case and still later decision in Commissioner of Food & Civil Supplies, Lucknow, U.P. v. Prakash Chandra Saxena so as to trace the development of law relating to this aspect of service jurisprudence, laid down that there has not been any conflict of opinion inter se various judgments including those laying down the "motive" and "foundation" theory. It was held that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. The benefit and protection of Article 311(2) of the Constitution is available not only to temporary servants but also to a probationer and the court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated. 20. In Chandra Prakash Shahi v. State of U.P., (2000) 5 SCC 152 , wherein the Hon'ble Supreme Court has again held as under:- "28. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive". 29. "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry." 21. In the case of Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences Calcutta & Ors., (1999) 3 SCC 60 , Hon'ble the Supreme Court in paragraph No. 18 had formulated the following specific questions for adjudication, which are as under:- (i) In what circumstances, the termination of a probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only motive? (ii) When can an order of termination of probationer be said to contain express stigma? (iii) Can stigma be gathered by referring back to proceedings referred to in order of termination? (ii) When can an order of termination of probationer be said to contain express stigma? (iii) Can stigma be gathered by referring back to proceedings referred to in order of termination? (iv) To what relief ?. The Hon'ble Supreme Court, after surveying the law on the point, rendered its decision on the aforesaid questions in the following manner:- (i) With regard to point No. 1, the Hon'ble Supreme Court in paragraph 21 concluded as under:- "21. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as founded' on the 2022-09-28 Page 7 allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid." (ii) With regard to point no. 2, the Hon'ble Supreme Court in paragraph No. 31 concluded thus. "31. Thus, it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to Judge whether the words employed amount to stigma or not. Point 2 is decided accordingly." (iii) So far as question No. 3 is concerned, the same was answered by the Hon'ble Supreme Court in paragraph No. 37 of the judgment, which reads as under:- "37. On this point, therefore, we hold that the words amounting to 'stigma' need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Point 3 is decided accordingly." 22. On this point, therefore, we hold that the words amounting to 'stigma' need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Point 3 is decided accordingly." 22. In Anoop Jaiswal v. Government of India & Anr., (1984) 2 SCC 369 , the Hon'ble the Supreme Court has held that if from the record and the attendant circumstances of the present case, it becomes clear that the real foundation for the order of discharge of the appellant-probationer was the alleged act of misconduct, the impugned order would amount to termination of service by way of punishment and in absence of any enquiry held in accordance with Article 311(2), it was liable to be struck down. The Supreme Court thereafter directed reinstatement of appellant of the said case in service with the same rank of seniority he was entitled to before the impugned order passed as if it had not been passed at all. 23. The stand of the petitioner could also be vindicated from a bare perusal of order passed by the Court of learned Judicial Magistrate 1st Class, Banihal dated 04.08.2014, by virtue of which, the petitioner stood acquitted of the offence under Sections 409, 411/34 RPC. 24. A perusal of the aforesaid order transpires that since the prosecution failed to prove the charges against the accused beyond all reasonable doubts, therefore, the impugned order falls flat as the very basis of the issuance of the impugned order is FIR which has subsequently culminated into challan and pursuant to the trial, the petitioner stood acquitted. Thus, it was incumbent on the part of the respondents to have conducted a full fledge enquiry against him by way of disciplinary proceedings against the petitioner as the law is settled that the departmental proceedings and criminal proceedings can go hand-in-hand and since the petitioner stood exonerated in the criminal case, the respondents were not justified in upholding the order of termination by virtue of stigmatic order. Conclusion 25. Since the very basis of the issuance of impugned order falls flat, as such, the stigmatic order of termination cannot sustain the test of law and is liable to be set-aside/quashed. 26. Conclusion 25. Since the very basis of the issuance of impugned order falls flat, as such, the stigmatic order of termination cannot sustain the test of law and is liable to be set-aside/quashed. 26. For the forgoing reasons and in the light of settled legal position, the present petition is allowed. The order impugned dated 09.04.2012, by virtue of which, the service of the petitioner was dis-engaged, is quashed and consequently, the respondents are directed to allow the petitioner to perform his duties as Gram Rozgar Sewak in Panchayat Halqa Sarbagni-A and Panchayat Halqa Sarbagni-B under MGNREGA and respondents are also directed to release unpaid salary/wages/arrears for the period for which he has worked. 27. However, the respondents are not precluded to conduct the enquiry with regard to the alleged misconduct as reflected in the order of dis-engagement by providing an opportunity of being heard to the petitioner and the continuance of the petitioner will be subject to the outcome of the said inquiry, if conducted. 28. With the aforesaid directions, the present petition stands disposed of.