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ROSHAN SINGH INDAULIA versus STATE OF U.P.& OTHERS

High Court of Judicature at Allahabad

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Roshan Singh Indaulia v. State Of U.P.& Others - SPECIAL APPEAL DEFECTIVE No. 828 of 1999 [2006] RD-AH 4496 (24 February 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.32

Special Appeal No. 828 of 1999

Roshan Sindh Indaulia .....Appellant

Versus

State of U.P. and others          .....Respondents ******

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This special appeal, under the Rules of the Court, is preferred against the judgment dated 21st September, 1999 passed by the Hon'ble Single Judge dismissing Civil Misc. Writ Petition No. 40379 of 1989 on the ground of alternative remedy by filing claim petition before the U.P. Public Service Tribunal under U.P. Public Service Tribunal Act, 1976.

We have heard Sri N.D.Kesri, learned counsel for the appellant and the learned Standing Counsel for the State-respondents.

Learned counsel for the petitioner-appellant vehemently contended that the criminal proceeding was the foundation for his termination and, therefore, the impugned order of termination, without holding any departmental enquiry or giving any opportunity to the petitioner-appellant, is illegal and vitiated in law. He further submits that pursuant to the criminal proceeding he was prosecuted but ultimately acquitted in the criminal case by the appellate court and, therefore, was entitled for re-instatement with all consequential benefits. He further contended, relying on the judgment of the Hon'ble Apex Court in Babu Lal Versus State of Haryana , AIR 1991 SC 1310, Capt. M.Paul Anthony Versus Bharat Gold Mines Ltd. & others, (1999), 2 UPLBEC 1280,  Purshottam  Lal Dhingra versus   Union  of  India, AIR 1958 SC  36, and  Similesh Kumar Versus  Gaon Sabha Uskar Ghazipur and others, AIR 1977 Alld 360  that it was not justified on the part of the Hon'ble Single Judge  in relegating the petitioner to avail alternative remedy,  since the order impugned in the writ petition is void ab initio  having infringed the constitutional provision under Article 311 (2) of the Constitution of India.

Prima facie, we do not find any reason to interfere in the discretion exercised by the Hon'ble Single Judge in declining to entertain the writ petition on the ground of alternative remedy, since the statutory alternative remedy is admittedly available to the petitioner-appellant wherein he can raise all his grievances against which, the writ petition was filed. However, the learned counsel for the petitioner-appellant vehemently contended that after such a long time, it would be very hard on the part of the appellant to start  afresh before the learned Tribunal and, therefore, the merit of his case may be considered by this Court in the appeal itself on the basis of the record of the writ petition and the writ petition may be decided on merits. Learned Standing Counsel did not raise any objection to this submission and, therefore, we have permitted the parties to make submission on the merits of the writ petition and proceed to consider the validity of the order of termination impugned in the writ petition.  

In brief, the facts as disclosed in the writ petition are that the appellant was appointed as Panchayat Secretary on 8.1.1969 on purely temporary basis. Pursuant thereto he joined on 10.1.1969. The term of appointment of the petitioner-appellant, contained in Annexure-2 to the writ petition, are reproduced as under:

"Jh jks'ku flag bUnkSfy;k vkRet Jh fxjkZt flag bUnkSfy;k xzke veqvk [kkl Ik= i=ky; fdjkoyh ftyk vkxjk dks iapk;r fu;e vuqlwph 6 ,oa mRrj izns'k {ks= lfefr rFkk ftyk ifj"kn vf/kfu;e 1961 dh vuqlwph (5) ds vUrZxr fyf[kr 'krksZa ,oa iznRr vf/kdkjksa ds vuqlkj fu/kkZfjr osru dze 50&2&60 n{krk jksd 3&15 esa iapk;r fe=ksa in ij fodkl [k.M fopiqjh esa dk;Z Hkkj xzg.k djus dh frFkh ls fuEu izfrcU/k ds lkFk vLFkkbZ@nkok LFkkukiUu :i ls fu;qDr fd;k tkrk gSA

1& mudh lsok;sa fdlh Hkh le; fcuk iwoZ lwpuk ds lekIr dh tk ldrh gSaA"

It appears that there was some confusion as to whether the Panchayat Secretaries are the Government Servant or not and the Commissioner-Secretary, Agriculture Produce and Development, Lucknow vide Government Order dated 24.2.1972 clarified that the Panchayat Secretaries have been designated as Panchayat Servants and their appointing authority is Additional District Magistrate/ District Planning Officer and they are government servants to whom all Rules and Regulations applicable to the employees of the State Government are applicable. It also appears that the work and performance of the petitioner-appellant was assessed by the Additional District Magistrate/ District Planning Officer, Agra   and vide order dated 17.3.1976 in purported exercise of power under the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as 1975 Rules) the petitioner-appellant was terminated with effect from the expiry of one month from the date of order of termination. Subsequently, it appears that on 14.1.1977, after about 10 months from the date of termination of his service, an FIR was lodged alleging embezzlement of public funds, which resulted in criminal trial under Sections 409,420 and 468 I.P.C. The Trial Court convicted the petitioner-appellant imposing rigorous imprisonment of three years and a fine of Rs.2000/- under Section 409 I.P.C., Rs.1000/- under Section 420 I.P.C.  and Rs. 1000/- under Section 468 I.P.C.  However, the petitioner-appellant preferred a Criminal Appeal No. 13 of 1990, which has been allowed, vide judgment dated 24.3.1992 and the petitioner-appellant has been acquitted. Thereafter, the petitioner-appellant submitted an application dated 2.6.1992 requesting the authorities to reinstate him in service since he has been acquitted in criminal trial, whereupon no orders were passed by the Director, Panchayat Raj although the District Panchayat Raj Officer referred the matter with his recommendation.  

The petitioner-appellant, thereafter, preferred Civil Misc. Writ Petition No. 23696 of 1998, which was dismissed by the Hon'ble Single Judge but in Special Appeal No. 589 of 1998 a Division Bench of this Court vide order dated 6.8.1998 modified the judgment of the Hon'ble Single Judge and disposed the appeal with the direction that if the representation of the petitioner-appellant is pending before the Director, Panchayat Raj, U.P., the same may be disposed of within a period of three months from the date of production of a certified copy of the judgment. Pursuant to the said judgment, the Director, Panchayat Raj, U.P.  Lucknow has rejected the representation of the petitioner-appellant vide order dated 9/12.7.1999 observing that the petitioner-appellant was terminated by the order of termination simplicitor under the provisions of 1975 Rules, after assessment of his work and performance and not on the basis of conviction in criminal trial and, therefore, his acquittal in criminal trial was wholly irrelevant and request of the petitioner-appellant for reinstatement in service, on the basis of said acquittal, cannot be accepted.

Again the petitioner-appellant approached this Court in Civil Misc. Writ Petition No. 40379 of 1999 assailing the order dated 12.7.1999 passed by the Director, Panchayat Raj, U.P. seeking the following reliefs:

(a) "issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 9/12.7.1999 (Annexure-1 to the writ petition passed by the Director, Panchayat Raj, U.P. Lucknow-Respondent No.2 contained in letter No.4/99-4/457/8/84.

(b) issue a writ, order or direction in the nature of mandamus commanding the respondents   to reinstate the petitioner in service with full back salary and service benefits including seniority and promotion.

(c) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

(d) award cost to the petitioner."

The said writ petition has been dismissed by the Hon'ble Single Judge vide judgment under appeal.

Having heard learned counsel for the parties and after perusal of the record, even on merits, we do not find any error in the order passed by the Director, Panchayat Raj, U.P. impugned in the writ petition. Admittedly, the petitioner-appellant was terminated vide order dated 2.3.1976 passed in exercise of power under 1975 Rules. Neither any criminal trial was pending on the said date nor the petitioner-appellant was convicted on or before the date of the aforesaid termination. By no stretch of imagination, it can, thus, be said that the termination order dated 2.3.1976 is based on criminal trial or conviction of the petitioner-appellant.  Besides that, at no point of time the order dated 2.3.1976 has been challenged by the petitioner before any competent forum and even in the writ petition the termination order dated 2.3.1976 has not been challenged. In the absence of any relief against the order of termination dated 2.3.1976, merely since the prayer of reinstatement has been rejected by the Director, Panchayat Raj, U.P., the order of termination can neither be held to be illegal nor to be set aside nor can be ignored altogether and the petitioner-appellant cannot seek a relief indirectly in the absence of any challenge to the order of termination.

The facts also disclose that even the first information report was lodged after about 10 months from the date of the order of termination passed by the Additional District Magistrate (Planning) Agra, terminating the petitioner-appellant from service. Therefore, the contention of the petitioner-appellant that the termination is founded on the criminal trial or the first information report is unfounded and baseless.

In no circumstance, the criminal trial subsequently conducted can be said to be foundation of the aforesaid order of termination. It is not disputed that all through the period of service, the petitioner-appellant was in temporary service. The applicability of 1975 Rules, has also not been disputed. Thus, it is always open to the competent authority to consider the work and performance of a temporary employee and if it is not satisfied, terminate his service at any point of time, particularly, when the power is conferred under the Rules. Further, if the temporary employee is not required to be continued in service even then he can be terminated in exercise of the aforesaid power.

Learned counsel for the appellant, however, submitted that the first information report, as a matter of fact, was lodged after ten months but the preliminary and other enquiries were continuing in respect to the allegations, which ultimately formed basis for the criminal trial and, therefore, the impugned order of termination is founded on the alleged misconduct.

We have given our serious thoughts to the aforesaid submission but could not persuade ourselves to agree with the same. At this stage, it would be useful to reproduce the order of termination passed by the appointing authority, which is available on record as Annexure-5 to the writ petition:

"fu;qfDr vuqHkkx&3 dh vf/klwpuk la[;k 20&1&74@fu;qfDr&3 fnukad 11 twu] 1975 ds lkFk foKkfir mRrj izns'k vLFkk;h ljdkjh lsod (lsok lekfIr) fu;ekoyh] 1975 ds vUrxZr v/kksgLrk{kjhdrkZ Jh jks'ku flag bUnkSfy;k vLFkk;h iapk;r lsod (in uke) dks uksfVl nsrs gSa mudh lsokvksa dh vc vkxs vko';drk ugha jg x;h gS vkSj bl uksfVl dh izkfIr ds fnukad ls ,d ekl dh lekfIr ij mudh lsok;sa lekIr le>h tk;sxhA"

Whether an order of termination simplicitor is founded on the allegations of misconduct or not, the golden rule is to peruse the order itself and to find out as to whether it cause any stigma or it is founded on some allegations of misconduct. If the order ex facie does not show any stigma or that it is founded on any alleged misconduct, the Court should not travel beyond the order to find out some ground to make it penal.

Instead of burdening this judgment with the catena of decisions, it would be useful to refer a recent judgment of the Hon'ble Apex Court in Mathew P. Thomas vs. Kerala State Civil Supply Corporation Ltd. and others, (2003) 3 SCC 263 where, after following Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, AIR 1999 SC983 and Pavanendra Narayan Verma Vs. Sanjay Gandhi Post Graduate Institute of Medical Sciences, AIR 2002 SC 23 the Hon'ble Apex Court has observed as under: -

"From a long line of decisions it appears to us that whether an order of termination is simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case.  Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping.  It may be difficult either to categorize or classify strictly orders of termination simplicitor falling in one or the other category, based on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of unsuitability to continue in service. If the form and language of the so called order of termination simplicitor of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simplicitor or punitive.  In cases where the services of a probationer are terminated by an order of termination simplicitor and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer.  In other words, the facade of the termination order may be simplicitor, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct.  In such cases it becomes necessary to travel beyond the order of termination simplicitor to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer.  In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service as he is in reality removed from service on the foundation of his misconduct." (para 11)

In the light of the above law as laid down by the Hon'ble Apex Court, we cannot read the order of termination simplicitor passed in the case in hand to find out that it is penal in nature or it is founded on the alleged misconduct of the petitioner-appellant.

Coming to the contention that the preliminary or other enquiries into certain allegations of the petitioner-appellant were pending or continuing and, therefore, they construed foundation for termination of the petitioner-appellant, we are of the view that it is always open to the employer to terminate its employee by an order of termination simplicitor, when the employee is temporary, instead of proceeding to hold departmental enquiry. Mere decision to take disciplinary action and thereafter not to proceed further or to hold preliminary enquiry or vigilance enquiry or any other kind of fact finding enquiry and thereafter, instead of allowing to come to its logical conclusion, decide not to proceed further but to terminate the temporary employee by an order of termination simplicitor, cannot be said to be bad as the order of termination is still termination simplicitor and founded on the alleged misconduct, since there is no finding that the employee was guilty of misconduct and thereafter the order of termination is passed.

The question as to when in such circumstances an order of termination simplicitor can be said to be penal and founded on the misconduct has been considered by the Hon'ble Apex Court in the case of Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta (Supra) and it was held that if the 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 allegations" and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was inclined to conduct an enquiry, but at the same time, he did not intend to continue the employee, it would only be a case of motive at best and will not vitiate the order. Similar view has been taken by another Division Bench of this Court in Smt. Radha Tiwari Versus State of U.P. and others, 2003 (1) UPLBEC 395.

Recently, the law laid down in Dipti Prakash Banerjee (Supra) has been followed by Hon'ble Apex Court in State of Haryana & another vs. Satyender Singh Rathore, JT 2005 (8) SC 192 wherein the Hon'ble Apex Court after referring to the earlier judgment in paras 9 and 10 observed as under: -

"We find that the High Court did not consider the question of stigma or the effect of any enquiry held before the order of termination was passed.  The question whether the enquiry purportedly held provided the motive or the foundation was required to be considered by the High Court in detail.  That has not been done.  The question whether termination of service is simplicitor or punitive has been examined in several cases e.g. Dhananjay v. Chief Executive Officer, Zila Parishad, Jalna and Mathew P. Thomas v. Kerala State Civil Supply Corporation Limited and others.  An order of termination simplicitor passed during the period of probation has been generating undying debate.  The recent two decisions of this Court in Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Pavanendra Narayan Verma vs. Sanjay Gandhi Post Graduate Institute of Medical Sciences after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simplicitor and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period of probation.  The learned counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case.  In the case of Dipti Prakash Banerjee (supra) after referring to various decisions it was indicated as to when a simple order of termination is to be treated as "founded" on the allegations of misconduct and when complaints could be only as a motive for passing such a simple order of termination.  In para 21 of the said judgment a distinction is explained thus:

"If findings were arrived at in an enquiry 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 allegations and will be bad.  But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry 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 enquire 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.  From a long line of decisions it appears to us that whether an order of termination is simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case.  Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping.  It may be difficult either to categorize or classify strictly orders of termination simplicitor falling in one or the other category, based on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of unsuitability to continue in service." (para 9)

"When the factual scenario of the present case is considered in the background of legal principles set out above, the inevitable conclusion is that the High Court was not justified in interfering with the order of termination." (para 10)

A Division Bench in Lalmani Maurya Vs. Public Service Commission & another (Special Appeal No.24 of 2006 (Defective) decided on 13.1.2006 has also taken similar view following Dipti Prakash Banerjee (Supra) and State of Haryana & another vs. Satyender Singh Rathore (Supra).

In view of the aforesaid discussions and in the facts and circumstances of the present case, we are clearly of the view that the termination of the petitioner-appellant is simplicitor and in exercise of the statutory provisions under 1975 Rules. It cannot be said to be founded, either on criminal case or the proven misconduct of the petitioner-appellant. Once the employee is temporary, he has no right to hold the post and his services can always be terminated in accordance with the conditions of his letter of appointment as well as statutory rules governing such matters, if any.

Thus, we do not find any merit in the contention of the petitioner-appellant that he was entitled for reinstatement after acquittal in criminal trial when his termination was not in consequence of the conviction of criminal trial.

In view of the discussions made above, this appeal lacks merit. It is, accordingly, dismissed.  Since we have considered the claim of the petitioner-appellant on merits also and are of the view that the petitioner-appellant is not entitled for any relief, therefore, the writ petition also stands dismissed. However, there shall be no order as to costs.

Dated:24.2.2006

S.K./SKM


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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