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VIJAY SHANKER TRIPATHI versus STATE PUBLIC SERVICE TRIBUNAL & OTHERS

High Court of Judicature at Allahabad

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Vijay Shanker Tripathi v. State Public Service Tribunal & Others - WRIT - A No. 28767 of 1998 [2005] RD-AH 6307 (23 November 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO.34

Civil Misc. Writ Petition No.28767 of 1998

Vijay Shanker Tripathi

Versus

State Public Services Tribunal & Ors

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Dr. Justice B.S. Chauhan, J.)

This case has a chequered history as there has already been one round of litigation between the parties upto the Hon'ble Apex Court. Petitioner filed a claim petition before the U.P. State Public Services Tribunal (hereinafter called the "Tribunal"), challenging the termination order dated 16.08.1988 which was dismissed by the Tribunal vide judgment and order dated 17.08.1998. Being aggrieved, petitioner filed Writ Petition No. 28767 of 1998 challenging the said judgment and order of the Tribunal and the writ petition was allowed vide judgment and order dated 5/11/1999. Being aggrieved, the Respondent State approached the Hon'ble Supreme Court by filing the Civil Appeal No. 5242 of 2002 which was  allowed by the Hon'ble Supreme Court vide judgment and order dated 20/7/2005 and the matter was remitted to be decided afresh in accordance with law.

The facts and circumstances giving rise to this case are that the State  Government vide Government Order dated 26/2/1986 sanctioned 299 posts of Sub Inspector (Ministerial) for the purpose of appointing some ministerial staff in District Police Head quarters. To fill up the said vacancies an advertisement was issued on 31/5/1986 and after holding the selection a list of 234 successful candidates was prepared on 06/5/1987. Petitioner being successful and at Serial No. 8 in the merit list was offered the appointment on 25/5/1987, and in response to the same he joined the service on 12/6/1987 at Ghazipur. Within a short period of his appointment there were complaints against him for taking illegal gratification for getting certain persons employed in the Police department, and thus a preliminary inquiry was held and the report was submitted on 22/3/1988 (Annex-7). On the basis of the inquiry report his services were terminated on 16/8/1988 (Annex-4), observing that his services were no more required.

Being aggrieved, the petitioner challenged the said termination order before the U.P. Public Services Tribunal and his claim petition was dismissed vide judgment and order dated 17/8/1998. However, the writ petition against the said judgment and order was allowed by this Court vide judgment and order dated 5/11/1999 which has been set-aside by the Hon'ble Supreme Court, as stated herein above, and the matter has been remitted for deciding afresh.

Shri Ashok Khare, learned Senior Counsel appearing on behalf of the petitioner has submitted that the Government had sanctioned the temporary post of Sub Inspector (Ministerial), but the appointments  were made after completing the regular selection process and inspite of the said fact, the appointment letter contains the terminology that the appointment was temporary and could be terminated any time without notice; the petitioner was entitled to continue in service unless removed on the basis of misconduct after holding the enquiry or the existence of the post itself came to an end; the post continues to be in existence even today as all other persons appointed alongwith the petitioner are in service; the petitioner could be removed only after holding the regular inquiry, as his termination was not simplicitor rather punitive in nature;  petitioner's suitability for continuation in service has been determined on the basis of the preliminary inquiry and that removal was permissible only after holding the regular inquiry giving petitioner an opportunity to participate after issuing the charge-sheet and giving him the right to cross examine the complainants and other witnesses. He therefore, submitted that the termination order stands vitiated being punitive in nature and the judgment and order of the learned Tribunal is liable to be set-aside.

On the other hand the learned Standing Counsel has submitted that  within a period of 8 months of his employment, petitioner indulged in taking illegal gratification for getting certain persons recruited in the Police Department in District Ballia giving them the impression that the Recruiting Officer in District Ballia was known to him and during the course of the inquiry he admitted the factum of taking the money though he explained that it was a loan advanced by the said persons to the petitioner and the major part of it had already been returned. Thus, whatever may be the merit of the case, such a person is not entitled to any equitable relief  in a writ jurisdiction. The order of termination is simplicitor in nature as it does not smack of any stigma. The learned Tribunal has rightly rejected the claim petition holding that the order did not suffer from any illegality and being the order of termination simplicitor, no interference is required. He therefore submitted that the petition was liable to be dismissed.

We have considered the rival submissions made by learned counsel for the parties and have perused the record.

The writ petition was filed on 04/9/1998 and was decided earlier on 05/11/1999, but the State Authorities had not filed the counter affidavit, though time was granted for filing the same on 07/9/1998. The Hon'ble Supreme Court while deciding the case on 20/7/2005 directed the State functionaries to file the counter affidavit within six weeks. However, it was further clarified that if no counter affidavit is filed within the said stipulated period, this Court should proceed on the basis of the material before it. The State-Authorities, for the reasons best known to them, did not file the counter affidavit. Thus we have to examine the case only on the basis of the averments and the documents filed in the writ petition.  

Large number of issues have been agitated before us, but it is not necessary to entertain all the said pleas for the reason that there can be no doubt to the settled legal proposition that even a temporary employee is entitled to the protection of Article 311 of the Constitution. A Full Bench of this Court in Vijay Singh & Ors Vs. State of U.P. & Ors, 2004 (4) ESC (All) 2209, has held that Rules framed under proviso to Article 309 of the Constitution do not apply to Police personnel as their services are governed by the Police Act, 1861 and the U.P. Police Regulations. In view thereof, the U.P. Temporary Government Servants (Termination of Service) Rules 1975, may not be applicable. This view also stands fortified by large number of judgments of the Hon'ble Apex Court referred to and relied upon in Vijay Singh (supra) and also in Chandra Prakash Shahi Vs. State of U.P. & Ors, AIR 2000 SC 1706.  

The admitted facts remain that the Superintendent of Police, Ghazipur  conducted the inquiry after receiving complaints of Shri Ram Bahadur Singh Kushwaha and Birender Singh Kushwaha, wherein it had been alleged that they were preparing for the entrance test of recruitment for the post of Constable, scheduled to be made in District Ballia on 07/1/1988, and for that purpose they used to go to the Police Lines for physical exercise. The brother of the petitioner, Uma Shanker Tripathi also used to go there for physical exercise as he was also preparing for the said examination. The friendship developed between them and Shri Uma Shanker Tripathi took them to the house of the petitioner in Police Lines, introduced them to the petitioner and at that time the petitioner gave an impression that the Superintendent of Police, Ballia and Recruiting Officer therein were known to him and he could take advantage from them and for the purpose of getting them recruited he demanded a sum of Rs. 2700/-. The complainants paid the money on the next date i.e. 06/1/1998. Petitioner accompanied the said complainants to Ballia Examination Centre and came back to Ghazipur after staying there for two hours. As the complainants failed in the said test, they demanded the money back. Petitioner returned a sum of Rs.2400/- to Shri Ram Bahadur Singh Kushwaha and Rs 2000/- to Shri Virendra Singh Kushwaha. As the balance amount was not returned, the complaints were filed. Both the complainants were examined by the Inquiry Officer and subsequently, the petitioner was also directed to appear before the Inquiry Officer on 20/3/1988. For that purpose, a notice dated 19/3/1988 was sent to the Circle Officer (City) which reads as under:

"Kindly sent Sub Inspector Vijay Shanker Tripathi to appear before me for statement on 20/3/1988 at 1100 hrs at Police Station, Ghazipur."      

In pursuance to the said notice, petitioner appeared before the Inquiry Officer and admitted of taking the money, but denied that it was an illegal gratification, by explaining that it was a loan.

The Inquiry Officer submitted the report dated 22/3/1988 doubting the integrity of the petitioner observing that unless the persons are very well known, nobody would advance the loan and it was a case of illegal gratification. In pursuance of the said report the termination order was passed. It is admitted that no regular inquiry has been held, no charge sheet had ever been served upon the petitioner, no witness has been examined in the present case. The report was submitted after two days of recording the statement of the petitioner. The order of termination simply reads that as his services were no more required, the same stood terminated. The language therein suggests that it was a case of termination simplicitor, and has no stigmatic character.

The question does arise as to whether the order of termination is punitive in nature which could not have been passed without holding regular inquiry. The issue involved herein is no more res integra.

In State of Bihar Vs. Gopi Kishore Prasad, AIR 1960 SC 689, a Constitution Bench of the Hon'ble Supreme Court ruled that if the employer proceeded against a probationer, directly without  casting any aspersion on his honesty or competence, his discharge would not, in law, have the effect of removal from service by way of punishment and, therefore, cannot have any grievance but in case the employer has branded the employee as dishonest and an incompetent officer, the probationer was entitled for protection of the rights under Article 311 of the Constitution of India.

Another Constitution Bench of the Hon'ble Supreme Court in State of Orissa Vs. Ram Narayan Das, AIR 1961 SC 177, held that if the order of discharge made it clear that it was discharged "for unsatisfactory work and conduct," the language used therein did not cast stigma and it was merely an order of discharge simplicitor. The order of discharge of the probationer was found to be valid in law though in the said case, a preliminary enquiry had been held before discharging him from service.

In State of Punjab Vs. Sukh Raj Bahadur, AIR 1968 SC 1089, the Hon'ble Supreme Court approved the procedure adopted by the employer wherein the disciplinary enquiry was dropped in the mid way and order of reversion was passed. The Apex Court held that the circumstances preceding the order of reversion, must be examined in each case, the motive behind being immaterial. Thus, it is open for the employer to drop the proceedings in the mid way and pass the order of discharge simplicitor if he is not willing to ascertain the correctness of allegations made against the probationer.

In Union of India & Ors. Vs. R.S. Dhaba, (1969) 3 SCC 603; State of Bihar Vs. Shiva Bhikshuk Misra, AIR 1971 SC 1011; and R.S. Sial Vs. State of U.P. & Ors., AIR 1974 SC 1317, the Hon'ble Apex Court held that in such a case, the Court has to examine whether the misconduct or negligence on the part of the employee was a mere motive for the order of termination or discharge or it was the very foundation of that order. The form of the order was not conclusive of its true nature and the Court must examine the entirety of the order of discharge after lifting the veil.

A Seven Judges Bench of the Hon'ble Apex Court in Samsher Singh Vs. State of Punjab & Ors., AIR 1974 SC 2192, held that an appointment on probation or on an officiating basis, is of a transitory character with an understanding/implied condition that such an appointment is terminable at any time. In the said case, enquiry had been conducted against the probationer behind his back, who was a member of Punjab Subordinate Judicial Service and the inquiry report was sent to the State Government to the effect that the probationer was not a suitable person to be retained in judicial service. The State Government passed the order of discharge on the recommendation of the High Court in the light of the findings arrived at by the Enquiry Officer. The Hon'ble Supreme Court held that his termination was clearly by way of punishment.

In Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896, the Hon'ble Supreme Court held that the Court or the Tribunal is entitled to find out the true nature of the order of discharge/termination, namely, whether it is punitive or not and if the basis is not the misconduct, the order does not warrant any interference.

In State of Maharashtra Vs. Veerappa R. Saboji & Anr., AIR 1980 SC 42, the Hon'ble Supreme Court while dealing with the discharge of a Judicial Officer on probation, held that in a matter of termination simplicitor, there is no presumption that the order is arbitrary or malafide unless a very strong case is made out and proved by the public servant who challenged such an order.

In Nepal Singh Vs. State of U.P. & Ors., AIR 1985 SC 84, the order of termination simplicitor was passed on account of the drive launched by the authority for weeding out unsuitable and unfit employees. The Hon'ble Supreme Court came to the conclusion that removal of a temporary Government employee on the ground of unsuitability does not cast any kind of stigma nor it can be held that such an order has been passed by way of punishment.

In Union of India & Ors. Vs. P.S. Bhatt, AIR 1981 SC 957, the Hon'ble Supreme Court held that the appointment on temporary basis or on probation cannot be equated with holding the permanent post, for the reason that when a person is appointed on probation, he does not have a right to hold the post and if it is found that he was not suitable for the post, his probation can be terminated at any time. In that case, the abusive language used by the employee against his superior was found only to be a motive or inducing factor for his removal but it was held that termination was not punitive in nature.

In Ravindra Kumar Misra Vs. U.P. State Handloom Corpn. Ltd. AIR 1987 SC 2408, the Supreme Court observed as under:-

"In several authoritative pronouncements of this Court, the concept of ''motive' and ''foundation' has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operating motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. Since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character."  

The question that needs to be considered is whether the order terminating the services of the petitioner was stigmatic in nature. The Supreme Court in State of U.P. Vs. Kaushal Kishore Shukla (1991) 6 SCC 69  held as under:-

"The respondent being a temporary government servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him. The termination order does not indict the respondent for any misconduct. The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent's suitability and continuance in service. There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent's services by an innocuous order in accordance with the terms and conditions of his service. Mere fact that prior to the issue of order of termination, an inquiry against the respondent in regard to the allegations of unauthorised audit of Boys Fund was held, does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent, instead it exercised its power to terminate the respondent's service in accordance with the contract of service and the Rules. The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination."

In Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd & Anr, (1999) 2 SCC 21, which related to a probationer, the whole legal position was reviewed in an illuminating and research-oriented judgment and after considering various decisions including the decision in Kaushal Kishore Shukla's case (supra) and a still later decision in Commissioner of Food & Civil Supplies, Lucknow U.P. Vs. Prakash Chandra Saxena (1994) 5 SCC 177, so as to trace the development of law relating to this aspect of service jurisprudence, laid down that there was no 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 the nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. 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.  

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 enquiry is held and it is on the basis of that enquiry 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 enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry 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".

"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 enquiry 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 enquiry.    

In Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences  (2002) 1 SCC 520 the Supreme Court observed as follows:-

"One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any of the three factors is missing, the termination has been upheld.

................................

Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, it also not stigmatic........In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."

After referring to the aforesaid decisions, the Supreme Court in the case of State of Punjab & Ors,. Vs. Sukhwinder Singh (2005) 5 SCC 569 observed as follows:-

"It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact-finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong."

In State of U.P. & Ors,. Vs. Ram Bachan Tripathi (2005) 6 SCC 496 the Supreme Court observed as follows:-

"We shall first examine the plea relating to the stigma. Usually a stigma is understood to be something that is detraction from the character or reputation of a person. It is a blemish, imputation, a mark or label indicating a deviation from a norm.

Mere description of a background fact cannot be called a stigma. In the termination order it was merely stated that the show-cause notices were issued and there was no response. This can by no stretch of imagination be treated as a stigma as observed by the Tribunal and the High Court."

In H.F. Sangati Vs. Registrar General, High Court of Karnataka & Ors, (2001) 3 SCC 117 the Supreme Court while considering the discharge of a probationary Munsif held:-

"The impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsif. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, much less to hold any formal proceedings of inquiry before making the order."  

After referring to the aforesaid decision the Supreme Court in Municipal Committee, Sirsa Vs. Munshi Ram 2005 AIR SCW 762 held as follows:-

"This law laid down by a three-Judges Bench of this Court also shows that if an employer discharges the services of a probationer on the ground that his services are unsuitable, it does not cast any stigma on the employee nor it is punitive, in such cases even the principle of natural justices does not apply and there is no need for formal proceedings of inquiry before making such order."

.....................................

As noticed above in the instant case, the respondent having been appointed as a probationer and his working having been found not to the satisfaction of the employer, it was open to the management to terminate his services. Assuming that there was an incident of misconduct or in competency prior to his discharge from service, the same cannot be ipso facto be termed as misconduct requiring an inquiry. It may be a ground for the employer's assessment of the workman's efficiency and efficacy to retain him in service, unless, of course, the workman is able to satisfy that the management for reasons other than efficiency wanted to remove him from services by exercising its power of discharge."  

In Governing Council of Kidwai Memorial Institution of Oncology Vs. Dr. Pandurang Godwalkar & Anr., AIR 1993 SC 392, the Hon'ble Supreme Court has observed as under:-

"But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simplicitor after some preliminary enquiry, it cannot be held that as some enquiry had been made against him before issuance of order of termination, it really amounts to his removal from service on a charge, as such penal in nature .................The principle of tearing of the veil for finding out the real nature of order shall be applicable only in the case where the Court is satisfied that there is a direct nexus between the charges so levelled and the action taken. If the decision is taken to terminate the services of an employee during the period of probation after taking into consideration the over-all performance and some action or in action on the part of such an employee, then it cannot be said that it amounted to his removal from service as a punishment. It need not be said that the appointing authority, at the stage of confirmation or while examining the question as to whether the services of such employee be terminated during continuation of the period of probation, is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment, of the performance of such employee. " (Emphasis added).

While deciding the aforesaid case the Apex Court had placed reliance on its earlier judgment in Oil & Natural Gas Commission & Ors. Vs. Dr. M.S. I. Ali, AIR 1980 SC 1242, wherein it was held that if a person is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained even if misconduct, negligence or inefficiency may be the motive, or the influencing factor which induced the employer to terminate the services of the employee, which such employer admittedly held under the terms of appointment, such termination cannot be held to be punitive.

Similarly, in the case of Jarnail Singh & Ors. Vs. State of Punjab & Ors., AIR 1986 SC 1626, the Supreme Court held that the mere form of order is not sufficient to hold that the order of termination was innocuous. When an allegation is made by the employee assailing the order of termination as one based on misconduct, though goes tin innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In such a case the Court may lift the veil and see whether the order was made on the ground of misconduct/inefficiency or not; but for that an allegation of serious magnitude must be alleged by the discharged employee and he must adduce sufficient evidence in support of it.

 The Hon'ble Supreme Court while remitting the case has also thrown light on the issue involved herein  making reference to various earlier judgments of the Apex Court including Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, AIR 1999 SC 983; Dhananjay Vs. Chief Executive Officer, Zilla Parishad, Jalna, AIR 2003 SC 1175; and Mathew P. Thomas Vs. Kerala State Civil Supply Corporation Ltd & Ors. (2003) 3 SCC 263, wherein a similar view has been reiterated observing that many a times, distinction between foundation and motive in relation to termination order is either very thin or overlapping. Therefore, it becomes duty of the Court to find out as to whether the order of termination is simplicitor or on motive or on ground of unsuitability to continue in service.

Therefore, the Court should not interfere unless the order of discharge casts stigma upon the employee or the order is found to be punitive in nature.

''Stigma' means blemish, defect, disgrace, disrepute, imputation, marks of disgrace or shame. (Vide The Legal Thesaurus by Burton). Webster's New World Dictionary, defines "stigma" as something that detracts from the character or reputation of a person, a mark, sign, etc. indicating that something is not considered normal or standard. It may also be defined as a mark or label indicating a deviation from the norms or a matter of moral reproach.

In Kamal Kishore Lakshman (supra), it was held that loss of confidence by the employer amounts to stigma. In the context of service, stigma would mean a statement in the order indicating his misconduct or lack of integrity. (Vide Allahabad Bank Officer's Association & Anr. Vs. Allahabad Bank & Ors., AIR 1996 SC 2030).

Thus, the law can be summarised that where the employer assessed the suitability of any temporary employee/probationer after holding the preliminary inquiry behind his back, the termination is based on the foundation and, therefore, the order is punitive and thus bad. In that case termination by holding regular inquiry is required. However, in a case where employer makes up his mind to get rid of the employee merely on allegations without trying to find out the truth of the same that can merely be a motive for removal, and as the termination is not based on foundation, it cannot be held to be punitive in nature. The language used in the order of termination may be very innocuous and apparently the order may be an order of termination simplicitor but the Court can find out the real nature of the order after examining the entire records placed before it and in case it comes to the conclusion that there had been some foundation for passing the termination order and the same had been passed in violation of the mandate of Article 311 of the Constitution of India, the order is liable to be quashed.

In view of the above, the order of termination cannot be sustained in the eyes of law and the petition deserves to be allowed and the judgment and order 16/8/1988 is liable to be set-aside.

In view of the above, writ petition succeeds and is allowed. The order of termination dated 16/8/1988 is hereby quashed. The judgment and order of the Tribunal dated 17.08.1998 is hereby set aside.

Admittedly, we are setting aside the termination order on technical ground as the same had been passed without holding the regular enquiry. However, considering the fact that allegations on the basis of which the preliminary enquiry had been conducted, the admission of taking the money though as a loan, by the petitioner himself before the Inquiry Officer that the petitioner has not lead any evidence that he had not been gainfully employed during the interregnum period and there is no bar in law for holding the enquiry in accordance with law even today, though it is not required at such a belated stage as the alleged misconduct was committed about 17 years ago, it will meet the ends of justice if 25 percent of the back wages is paid to the petitioner and we order accordingly. The said amount may be paid within a period of six months from today. However, the petitioner shall be entitled for all other notional benefits. No cost.

23.11.2005

SB


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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