Himachal Pradesh High Court
Hon'Ble High Court Of H.P. And Another vs Roshan Lal on 12 October, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No.134 of 2008
Decided on: 12.10.2015.
.
Hon'ble High Court of H.P. and another ..........Appellants.
versus
Roshan Lal ...........Respondent.
___________________________________________________________________
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
of
Whether approved for reporting? Yes.
For the appellants: Mr.Ajay Mohan Goel, Advocate.
For the respondent:
rt Ms.Monica Thakur, Advocate, vice
Mr.Rajnish Maniktala, Advocate.
________________________________________________________
Mansoor Ahmad Mir, C.J.
This appeal is directed against the judgment, dated 27th February, 2008, passed by a learned Single Judge of this Court in CWP No.526 of 2005, titled Roshan Lal vs. The Hon'ble Chief Justice and others, whereby the writ petition filed by the petitioner (respondent herein) came to be allowed and the termination order was quashed, (for short, the impugned order).
2. At the very outset, we may refer to the termination order as under:
"Whereas Shri Roshan Lal s/o Shri Sunka Ram, resident of Village Basaral, Tehsil Nadaun, District Hamirpur was appointed as Chowkidar vide this office order No.DSJ(HMR)EC/2-11/85-1784 dated 10th March, 2004, ::: Downloaded on - 15/04/2017 19:11:15 :::HCHP ...2...
consequent to acceptance of offer of appointment by .
him vide this office order No.DSJ(HMR)EC/2-11/85-1713 dated 4th March, 2004, vide said offer of appointment said Shri Roshan Lal was offered a temporary job on probation for a period of two years, which he accepted, leading to his appointment as Chowkidar.
Whereas during the period of probation, conduct of of Shri Roshan Lal was not found satisfactory. Hence in public interest services of Shri Roshan Lal are dispensed with immediate effect and shall stand discharted (sic) rt from service." Emphasis applied.
3. It appears that the writ petitioner was on probation and was shown door without conducting an inquiry on the ground that his conduct was not satisfactory.
4. Thus, the moot question is whether the services of a probationer can be dispensed with without conducting an inquiry. The answer to the above proposition depends upon the language employed in the termination order. In case the termination order is stigmatic and has been passed after raising a finger about the conduct of the employee, the said order is punitive in nature and in that case, the employer is under ::: Downloaded on - 15/04/2017 19:11:15 :::HCHP ...3...
obligation to conduct a regular inquiry. In case the .
termination order is simpliciter without any remarks about the conduct of the employee, in that eventuality, no regular inquiry is required to be conducted.
5. Our this view is fortified by the judgment of the of Apex Court in Registrar General, High Court of Gujarat and another vs. Jayshree Chaman Lal Buddhbhatti, (2013) rt 16 SCC 59. It is apt to reproduce paragraphs 20, 29 and 31 of the said judgment hereunder:
"20. The question, therefore, comes for consideration, as stated earlier, as to whether this is a case of termination simpliciter of the services of a probationer on account of her unsuitability for the post that she was holding, or whether it is a termination of her services after holding an inquiry behind her back, and without giving her an opportunity to defend.
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29. The propositions in this behalf, as to what
constitutes a motive, and what constitutes a foundation for the action were once again crystallized in the judgment of this Court in Chandra Prakash Shahi Vs. State of U.P. & Ors. reported in 2000 (5) SCC 152, where in paragraph 28 and 29 of the judgment of this Court laid down the relevant propositions which are as follows:-::: Downloaded on - 15/04/2017 19:11:15 :::HCHP
...4...
"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, of 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 rt 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."
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xxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxx .
31. Having gone through the salient judgments on the issue in hand, one thing which emerges very clearly is that, if it is a case of deciding the suitability of a probationer, and for that limited purpose any inquiry is conducted, the same cannot be faulted as such.
of However, if during the course of such an inquiry any allegations are made against the person concerned, which result into a stigma, he ought to be afforded the rt minimum protection which is contemplated under Article 311 (2) of the Constitution of India even though he may be a probationer. The protection is very limited viz. to inform the person concerned about the charges against him, and to give him a reasonable opportunity of being heard."
6. After perusing the record, we are of the considered view that the order of termination has been passed by the employer, in the instant case, on the charges of misconduct, is punitive in nature. The inquiry was to be conducted and the writ respondent was to be given the opportunity of hearing, which has not been done in the present case. Thus, as per the mandate of the Apex Court, the termination order, on the fact of it, is not sustainable in the eyes of law. The learned Single ::: Downloaded on - 15/04/2017 19:11:15 :::HCHP ...6...
Judge has rightly made the discussion in the impugned .
judgment and has rightly quashed the termination order.
7. Having glance of the above discussion, we hold that there is no merit in the appeal filed by the appellants and the same is dismissed alongwith pending of CMPs, if any.
rt (Mansoor Ahmad Mir)
Chief Justice.
October 12, 2015 (Tarlok Singh Chauhan)
(Tilak) Judge
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