Central Administrative Tribunal - Delhi
Dr. Nitin Kumar Son Of Shri Rajpal And Dr. ... vs Govt. Of Nct Of Delhi Through Its ... on 7 December, 2007
Equivalent citations: 2008(2)SLJ348(CAT)
ORDER
M. Ramachandran, J. (Vice Chairman)
1. In the context that an order dated 23.10.2007 issued by the respondents is the subject matter of challenge in all the three Original Applications, as agreed to by the parties, they are heard jointly and are also being disposed of by a common order. Since the services of the applicants, who were Medical Officers working under the respondents, were sought to be terminated, at the time when the applications had been filed, there were submissions that the operation of the order may be suspended. But taking into account the totality of the facts, it had been suggested that it should have been in the interest of all concerned if applications were disposed of expeditiously. The respondents had offered to file their counter reply without any delay. When the pleadings were complete, it was agreed by the parties that the formalities of hearing could be concluded even without formally listing the matters for regular hearing.
2. In OA 1970/2007 and 1971/2007, the respondent is Government of NCT of Delhi represented by Secretary, Department of Health and Family Welfare. In OA 1994/2007, the applicant has made the Chief Secretary, Principal Secretary of Govt. of NCT of Delhi as well as Medical Superintendent, Lok Nayak Hospital as respondents.
3. We had opportunity to hear Senior Counsel Shri P.P. Khurana, as assisted by Shri A.N. Sabri and Ms. Harvinder Oberoi. Shri Ajesh Luthra, Standing Counsel, appeared on behalf of the respondents. The essential facts are not much in dispute and principally the circumstances, in which the termination orders have been issued, and justifiability and legality of such orders were the issues of contention. We may observe that adequate assistance had been obtained from both sides. The authorities cited by them pointed out that grant of relief very much depend upon the facts of individual cases. After referring to the essential facts, we would, therefore, advert to the authorities that have been cited for coming to our conclusion.
4. Applicants, respectively, had commenced service from 07.01.2002, 19.07.2002 and 16.09.2004. The memorandum of appointment issued to them, was stereotyped, and indicated that such appointment was on contract/ad hoc basis. Applicants submit that a written test and interview preceded such appointment. The very first clause in the memorandum was that the appointment is purely on contract/ad hoc basis for a period of one year only or till regular appointment is made, whichever is earlier. The appointee is also advised that such appointment could be terminated at any time (on either side) by giving one month's notice or by paying one month's salary without assigning any reasons. They were put on a pay scale and Clause (6) was that 'The appointee will not be granted any right or claim for regular appointment to the post'. It was full time appointment, though in the matter of emoluments, they were not comparable to regular incumbents.
5. It is common case that after the initial period of one year, extensions were given almost as a routine. Although the applicants are seen to have been appointed in different months and year, from the pleadings it could be seen that the respondents had a case that the contract of all the three individuals had come to an end, effective from 30.09.2007 requiring signing of new contract. But, however, it could be seen, that normally by way of routine, extensions would have come in course of time alone, as the services were uninterrupted.
6. Applicants submit that to their surprise, termination letters had come to be passed on 23.10.2007 selecting them alone, which are Annexure A-1 orders presently impugned in the applications. The brief order signed by the Deputy Secretary could be extracted hereinbelow:
The Competent Authority hereby orders termination of services of following contractual doctors presently posted at Lok Nayak Hospital with immediate effect:
Dr. Nitin Kumar (Medical Officer - on contract) Dr. Sanjay Kumar Sinha (Jr. Specialist, Surgery - on contract) Dr. Virender Kumar (Medical Officer - on contract) Further, these doctors be paid one month salary w.e.f. 1/10/2007 after expiry of their present term of contract in lieu of one month notice thereof.
7. Since the applicants felt that such termination orders were arbitrary and violative of their constitutional rights, counsel submits, they have chosen to challenge the above by way of these proceedings. The continuous engagement for years together would by itself indicate that there were regular posts available but for some reasons, without filling them up regularly, method of ad hoc appointments were resorted to. It is pointed out that there are persons, who are continuing in a similar manner, for over a decade because there is reference to appointment in the year 1995. By yearly renewal, the appointees uninterruptedly are continuing. It is also submitted that after engagement of Dr. Virender Kumar, who was appointed in 2004, for the succeeding years also new appointments were being done, and such of the persons are generally termed by he applicants as their juniors. The applicants further submit that the existing arrangements viz. of engagement of Medical Officers on ad hoc basis, had been found by the respondents themselves as not a very satisfactory procedure. Steps were seen to have been taken so as to constitute a regular service as Delhi Health Service. With the aid of Annexures A-5, A-6 and A-7, it is pointed out that decisions have already been taken by the Govt. of NCT of Delhi regarding formation of a separate cadres of Doctors working under the Government of Delhi. The project and proposal was given a green signal by the Cabinet. Modalities for formation of a service are in the final stage. Annexure A-6, according to the applicants, shows that to overcome perennial problems faced because of limited period contractual appointment, the Government had sent two sets of requisitions to UPSC requesting them to fill up 438 posts of general duty Medical Officers and 242 posts of non-teaching Specialist on mode of recruitment suggested by the Commission as one time exception. The initial constitution of the services was proposed as staff transferred from Central Health Services by receiving option. It is also suggested that additionally the available posts could be filled up through those who have been appointed by the Government on contract basis on or before 10.04.2006 (to which category the applicants belong to).
8. It may also be relevant at this point of time to make reference to a submission made on behalf of the applicants that, as a matter of fact, applications had been filed before this Tribunal, praying for adoption of a relaxed standard in respect of Medical Officers, who are already serving on contract basis, and have been disposed of but without going to the merits on 16.07.2007 (OA 758/2006 and connected cases). It had been noticed that in view of the cabinet decision of 13.11.2006, the Government had issued an Office Memorandum dated 18.12.2006 conveying the acceptance of the cabinet decision by the Hon'ble Lt. Governor of Delhi. Consultation with the UPSC for formation of the Service was in progress. Counsel suggested that only because of the delay that was there, formal orders had not been forthcoming, and thereby facilitating respondents to shut the door at the face of the applicants, in violation of the principles of natural justice and their constitutional rights.
9. The applicant in OA 1970/2007 has a further plea that he was party to OA 3391/2002, and although substantial reliefs were not granted in the application, however, it had been observed that services of the applicant were not to be terminated unless regular incumbents are available to replace them. It is submitted that the impugned orders were not legal and unwarranted and issued in naked exercise of arbitrary powers. Of course, the further contention was that it was punitive in nature, as could be gathered from the manner in which it was seen issued. The learned senior counsel submits that the above ground raised in the application has now been substantiated by a definite contention in the counter reply, namely, that termination could be traceable to the conduct of the three applicants, who are not found as acceptable to the administration.
10. In a gist, therefore, the Principal submission made by the applicants is that when hundreds of persons similarly appointed like them were continuing without interruption and were permitted to continue from year to year, they should not have been picked up for any arbitrary treatment and this directly violates their fundamental rights under Articles 14 and 16 of the Constitution of India. The alternate submission was that since there is tacit admission in the counter reply that services of the applicants have been discontinued consequent to certain allegations,-although such details are not supplied in the counter affidavit,-in spite of the innocuous orders, stigma is apparent, and in that event, the termination amounts to a colourable exercise of power. Such offending orders require to be set aside since the constitutional protection as envisaged under Article 311, which is available even to the temporary and ad hoc employees, stand denied to them.
11. A reply affidavit has been filed by the respondents and we had heard Shri Ajesh Luthra, who had highlighted his arguments with reference to the stand taken there. It is stated that excepting the three applicants, services of no other persons have been terminated. The respondents had taken care to ensure that services of the applicants nevertheless have been dispensed with by a non-stigmatic order. The reply as well highlights the standpoint that the applicants have no uninhibited right to be in service, they being contractual employees. The contract of the incumbents expired by 30.09.2007 and now it works out only as a non-renewal. Reply disclosed that along with others similarly situated when the extension of their contract was under consideration, certain development transpired, namely, that they had not acted in a responsible manner and were involved in a serious altercation with a Senior Resident. This had come to be noticed through an internal inquiry. This development had been reported to the appointing authority and he had decided not to extend their services beyond 30.09.2007. It was a bonafide decision.
12. Consequently, since applicants had continued to be there beyond 30.09.2007, their services were discontinued forthwith, and salary for a month in lieu of notice, in terms of the contract conditions, had been offered. The impugned orders have been issued legally and as per the terms and conditions of the initial appointment order. As it was a decision coming well within the purview of the jurisdiction of the appointing authority, it could not have been contended that the order suffered from any illegality or irregularity. Counsel also submitted that the question of violation of Articles 14 and 16 did not at all arise. When contractual terms bound the parties and when the order ex facie did not contain any stigma, the circumstance that certain others have continued, on ad hoc basis, seniors or juniors to them, became irrelevant as a ground of attack. Articles 14 and 16 of the Constitution could not have been relied on by them forgetting the contract and its terms, which always govern the signatories.
13. Again, on the issue of violation of Article 311 of the Constitution, Mr. Luthra submits that it was a termination simpliciter, and it was not imposed as a penalty as the term could commonly be understood, and reasons which might have prompted the authorities to arrive at such a decision, was not justiciable. Therefore, there cannot be substance in submissions raised on that count, and it was a case where such grounds could not have been available.
14. Mr. Khurana submits that it is now on record as an admission that the impugned orders have come to be passed in the backdrop of certain alleged undesirable conduct that is exhibited by the applicants. Necessarily, the corollary is that if they were not 'guilty of such indiscretion' there was no possibility that their contract might not have been renewed. But the principal submission, as has been referred to earlier, was that the fundamental rights of the applicants have been interfered with. If we go by the terms of the order of termination, he alleges that it is absolute discrimination per se. When hundreds of Medical Officers, who had joined later to the applicants and far greater number of officers who had joined earlier, who had the same terms and conditions of appointment, were continuing, and their renewal was a matter of course, and taking notice of the history that ad hoc employees were manning permanent posts, counsel points out, to pin point three of the doctors as not worthy of such a renewal, by itself, and without anything else, could be characterized as invidious discrimination. They had the legitimate expectation, to get the contract renewed appropriately, especially at a time, when steps were in the final stage for absorbing all such similarly situated persons, even at certain concession and relaxation. The termination was, therefore, uncharitable and when it specially brought about a calamity so as to deny them a benefit of regular employment which otherwise might have naturally followed, it was calculated with venom and requires to be denounced. Perhaps it revealed a sinister motive to wreck vengeance, and a method seems to be conceived, which otherwise would not have been possible to be carried out, in a straightforward manner. With reference to the Constitution Bench judgment of the Supreme Court in Jagdish Mitter v. The Union of India it is submitted that a termination simpliciter of a temporary servant stating that he was found undesirable to be retained in Government servant, in fact, amount to an order of dismissal and it also amounted to violation of Article 311 (2) of the Constitution of India.
15. Although the counsel had initially submitted that the issue whether it was a punishment or not could be examined, at a later stage and the violation of principles of equality could be gone into, he had thereafter taken up both the issues simultaneously as the questions had practically merged into one.
16. Citing The Manager, Government Branch Press and Anr. v. D.B. Belliappa , counsel submits that the Supreme Court had rejected the contention of the respondents raised therein that in the case of a temporary employee whose services are terminated in accordance with the terms and the conditions of the Service, Articles 14 and 16 (1) of the Constitution will have no application. With particular reference to Paragraph 18 of the judgment, the Supreme Court had held that even the prevailing precarious conditions viz of depending upon the discretion of the employer/State, did not itself rob the concerned individual protection of Articles 14 and 16. It will be available even to such a temporary Government servant if he has been arbitrarily discriminated against or singled out for hard treatment vis-a-vis his juniors similarly circumstanced. The court had, the counsel submits, highlighted the principle that there might be discretion available under the conditions of services, which authorize the authorities to terminate the employment without notice. But such discretion could be exercised in accordance with reason and fair play and not capriciously. The Court had gone to the extent, the counsel submits, that the arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause as Article 14 and 16(1).
17. Mr. Khurana had in that context cited Nepal Singh v. State of UP and Ors. . It was a case where the temporary service of the concerned employee had been terminated, on the ground of unsuitability. The Court had indicated that when it had been alleged that Articles 14 and 16 have been violated, of course, the initial burden to show that there was a violation brought about rests on the shoulder of the employee, but once when such violation is highlighted, the onus then shifts to the competent authority to justify its action. Counsel points out that in an effort to counter the arguments, the respondents had attempted to highlight that applicants were undesirable persons but the counter reply will not, however, show as to what was the circumstances, which prompted them to arrive at such a finding. So long as it was not substantiated, it remains as an allegation, which can invite only scanty respect.
18. The next case cited (Dr. Mrs Sumati P. Shere v. Union of India and Ors. , according to the counsel, is on all fours with the facts of the present three cases. Dr. Sumati was an ad hoc appointee to a permanent post of Assistant Surgeon Grade-I in Naval Headquarters. After initial spells, she got further extensions and usual increments for three years but had been terminated from service thereafter for unsatisfactory performance without being informed about the defects or deficiency of the work. The Supreme Court, taking notice of the factual situation presented vis-`-vis, the stand of the respondents, had, in categorical terms, held that the order terminating the services of the applicant required to be set aside. At this point, he also adverted to a decision, namely, Babu Lal v. State of Haryana and Ors. . It was a case where an employee continuing on ad hoc basis without break for more than two years stood removed. He had been served with an order of termination, alleging that there was a criminal case to which he was a party although it had ended in acquittal at a later stage. The order was set aside, citing the principle that if a simple termination is found to be a camouflage for punitive action, the order requires to be set aside. In Union of India and Ors. v. Jayakumar Parida , counsel submits, that the Supreme Court had intervened finding that although the termination was in exercise of contractual powers, it was found as having originated because of a report that the applicant had produced a false income certificate. But without a due process of enquiry, on the strength of contractual terms, a termination simpliciter could not have validly been issued, when full facts stood revealed.
19. Mr. Luthra, on the other hand, submits that the bona fide decision taken is the intent of the establishment, and strictly conforming to contractual terms, cannot be successfully subjected to challenge. Otherwise, the sanctity of contract itself will be lost. The counsel points that the Central Civil Services (Temporary Services) Rules, 1965 apply to the applicants indisputably. There is, therefore, no justification, reason or warrant for contending that the principles to which reference had been made in the judgments cited are to be blindly followed. The rules are made for the specific purpose and this single circumstance cannot be overlooked. If, as a matter of fact, the temporary servants were to be equated with permanent regular servants in the matter of appointment or termination, there would have been no need for making special provisions. According to him, the stand adopted by his client has found acceptable by judicial pronouncements.
20. He had at the first instance invited our attention to a Full Bench decision of the Punjab and Haryana High Court reported in AIR1979 P&H 145 (S.K. Verma and Ors. v. State of Punjab and Ors.). Court had examined the scope of word 'ad hoc employee' and the issue of their termination. The ad hoc employee, the Court held, is a wholly temporary employee engaged for a particular period or for a particular purpose and one whose services can be terminated with the maximum of ease. Therefore, such services are terminable without notice or otherwise. The issue of the termination of the services of an ad hoc employee is strictly confined between him and the State. Articles 14 and 16 are attracted only when equals are treated unequally; the ad hoc employees, therefore, could not complain about any hostile discrimination qua some unspecified persons and the equality clause can interpose only in the context of specific persons or a specific class. Mr. Luthra thereafter points out that temporary Service Rules under Rule 1 (4) (c) provides that they apply to Government servants engaged on contracts. As far as the applicants are concerned, they never held a post, nor have lien to any posts. Therefore, it may be possible, counsel submits, to deal with them, quite distinctly in a manner other than Government deals with regular Government servants. A contract authorizes termination even without assigning reasons, the power is extensive so as to block interference from any scrutiny. As to what motivated such a termination order, a probe is wholly unnecessary.
21. Reference was next made to Satish Chandra Anand v. The Union of India . The Court had held that in the matter of termination of contractual service by notice, Article 16 (1) was inapplicable since there was no compulsion, the counsel points out, as observed by the Supreme Court, for the applicant to enter into a contract he did. Having accepted the offer, he should not have gone and contended that the terms were not acceptable to him, on a later stage.
22. Mr. Luthra thereafter referred to Champak Lal Chiman Lal Shah v. The Union of India AIR 1964 SC 1851 pointing out that the Temporary Service Rules of 1949, which are almost of identical terms of Temporary Service Rules of 1965, have been examined by the Supreme Court, to see whether it hit the rights conferred on citizens under Article 16 of the Constitution. The Court had held that since relations were governed by a contractual position, it could not have been considered as hit by the vice of Article 16 of the Constitution. Counsel also cited the decision in State of Uttar Pradesh andAnr. v. Kaushal Kishore Shukla AISLJ (Vol. VI) 1991 (2) 96 and submits that a temporary Government servant whose services were terminated well before his juniors were terminated could not have sought solace from Articles 14 and 16 of the Constitution. When complaints are made against a person, in respect of which a preliminary enquiry was held and the competent authority was satisfied that he was not suitable for service, and when entry in the records, as well as the inquiry report constituted adequate materials it enable the authority to form an opinion regarding the suitability of the person concerned for continuing in service. Since a temporary employee has no right to hold the post and his services could be terminated as per the terms of the contract, no exception could be taken to such an order of termination. To this effect, he also relied on Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr. . The issue was whether the spadework done could have been justifiable. An allegation of bribe was there as against the petitioner therein and there was a recommendation for termination but this was done behind the back of the employee. The issue was whether the termination was founded on this allegation or whether it constituted only a motive for initiating certain steps, which ultimately led to termination of service. Court had held that in certain cases of temporary servants and probationers, when ex parte enquiry had been held, it cannot be termed punitive, merely because the principles of natural justice had not been followed. It was not for the Tribunal, the Court observed, to go behind the order and look into the proceedings, the antecedents and the like circumstances, which culminated in the order of termination.
23. Reference was also made to a decision reported as (Ganganagar Zila Dughd Utpadak Sahkari Sangh Ltd. and Anr. v. Priyanka Joshi and Anr.). It was a case of probationers, and their services were terminated using the expression `dismissal'. The Supreme Court held that it was not a case of dismissal as such. Similarly, in State of Punjab andOrs. v. Bhagwan Singh cited by the counsel, the issue was whether there was a stigma when the discharge order indicated that the conduct of the officers was not satisfactory. However, it was observed that when a probationer is discharged during the period of probation and if for the purpose of discharge, assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, it cannot be considered as punitive requiring invitation of formalities to be taken under Article 311 of the Constitution of India. To the same effect is the judgment in Union of India and Ors. v. A.P. Bajpai and Ors. . The ground stated in the counter affidavit attempted to establish that there was deficiency on the part of the probationer. But according to Court, it was really irrelevant when the contractual right of termination of a probationer was decided to be adopted.
24. The totality of the discussions as above, however, is sufficient to show that the issue could be examined from altogether different angles. The decisions cited by the learned Counsel for the applicants, disclose a thinking process of the Supreme Court that although it might be permissible for an employer to employ the contractual right of termination in respect of a probationer, nevertheless the Court has cautioned that if the action is punitive, it may not be possible for the employer to hold it always as a defence, and without fail.
25. We may examine the rival contentions in the above background. That certain altercations which happened to be exchanged between some of the applicants and another person became irksome to the officers and that it was the guiding reason for the respondents to come to a decision that the contract was not to be renewed has been admitted but not in too many words. We note that in the case of discharge of a probationer, principles are less rigid. The very nature of his engagement is subject to his rendering satisfactory work as a disciplined person. Unambiguously the Supreme Court had observed that the materials collected in the course of the work even behind his back could sometimes be used for coming to a decision about his suitability. The termination at the conclusion of probation may not be stigmatic or considered as punitive.
26. However, the principles as above cannot be bodily lifted and applied in a case of a contractual employee when it is seen that he is attached to a permanent post and in this case where the contract is renewed as a routine process. We do observe that while tackling the issue, the respondents are cornered as if they were. If the termination is claimed as one done in the interest of the institution, bona fide and purely taking notice of the terms of the contract, a question naturally arises as to why the applicants were alone picked. The respondents evidently are on a greasy ladder. If it was a discharge simpliciter, issue of discrimination may arise. If the stand is that the concerned individuals had been guilty of indiscretion, the termination will assume colour of a disciplinary action, where rightly the protection of Article 311 could be solicited.
27. The decisions cited by the respondents in S.K. Verma and Satish Chandra Anand (supra) might not be relevant here since the discrimination is not vis-`-vis any well defined groups, because a few among persons identically situated are picked up for harsh treatment. We can, on the other hand, see that judgments of the Supreme Court in Jagdish Mitter as well as D.B. Belliappa (supra) squarely will be applicable. We may at this point extract the weighty observations in paragraph 24 of the judgment in Belliapa's case:
Conversely, if the services of a temporary Government servant are terminated arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in termination his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting, perhaps, in cases analogous to those covered by Article 311 (2), Proviso (c), the authority cannot withhold such information from the Court on the lame excuse that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service. 'The giving of reasons' as Lord Denning put it in Breen v. Amalgamated Engineering Union (1971) 1 All ER 114, 'is one of the fundamentals of good administration', and, to recall the words of this Court in Khudiram Das v. State of West Bengal , in a Government of laws 'there is nothing like unfettered discretion immune from judicial review-ability'. The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomized in Articles 14 and 16 (1).
28. Now that discreetly it has been conceded that a decision has been taken adverse to the applicants because of certain incidents which had taken place in the Hospital sometime in June, 2007, we necessarily have to hold that unless the version of the applicants had been properly invited about their involvement or their culpability, simply for the reason that the appropriate authority had decided that they became undesirable, could not have been permissible as a reason for them to impose a decision, which adversely affected the civil rights of the applicants. No details have been submitted in the counter affidavit excepting to suggest that there was an altercation, and it is too feeble a circumstance, we feel, to find fault with the three Medical Officers who had practically unblemished record of service over a number of years.
29. A question could also naturally arise here as to whether such an altercation would at all, have had adversely affected their career if they were regular employees. A Medical Officer will have, in the course of his work stressful hours. To suggest that he is not expected to raise his voice at all while dealing with his colleagues, will be too much to expect and this is more so, when nobody is sure of the background in which the incidents have taken place. In our opinion, in any case that will be too severe a restriction to cost a person his job. For an altercation, there should be parties on opposite side. As could be gatherable from the submissions, the applicants were on one side and a colleague on the other side. It is not known as to whether the other person had been subjected to any detriment or whether he had been instrumental in initiating the alleged altercation. In this background, adverse action should have fallen on a person, even if a temporary employee only if a report by a proper inquiry had forthcome. Nothing is gatherable from the counter statement, throwing light to these aspects.
30. Mr. Luthra had, however, handed over to us the files that were being maintained by the respondents. We find that an in-house inquiry has been arranged and two of the three persons who conducted the inquiry held out an opinion that there was heated exchange on the night of 16/17.6.2007. The applicant in OA 1970/2007 abused Dr. Ajay Aggarwal, it is stated, but applicants in the other cases were mute spectators. The physical assault was neither proved nor disproved, it is recorded. The files also indicate that the applicant Dr. Nitin Kumar had occasion to talk with Dr Aggrawal, on the complaint of a patient who had come to the Hospital that he did not get adequate attention, and the exchange of words were in that context. So long as no opportunity was given to the concerned individuals to explain their stand and since there was no finding that they were guilty of any overt acts, we are compelled to hold that there has been some amount of arbitrariness on the part of the respondents to decide that all the applicants deserved to be shown the door.
31. At this point, we think it might be profitable to scan through the relevant authorities cited by the parties, in some greater detail. Nepal Singh (cited supra) pertained to the termination of a person, who was on temporary engagement. Mr. Singh was a temporary Sub-Inspector of Police, and on the basis of certain reports, there was an opinion formed that his presence in the police force may not be conducive to public interest. The DIG of Police, therefore, issued an order terminating his services with one month's pay in lieu of notice. Although the High Court had refused to interfere with the order, the Supreme Court had held that the person concerned will be entitled to be continued in service without interruption, observing that the Court will view with great disfavour any attempt to circumvent the constitutional provision of Article 311 (2) in a case where that provision comes into play. Dealing with the situation, the Supreme Court had observed in Paragraph 9 as following:
The Superintendent of Police has also commented that the appellant was a corrupt officer who was not straightforward (whatever that might mean). On that we have this to say. Where the services of a Government servant on temporary appointment are terminated on the ground that his reputation for corruption makes him unsuitable for retention in the service, the reputation for corrupt behaviour must be based on something more than a mere allegation. The other grounds mentioned in the report of the Superintendent of Police, which impressed the High Court, appear to us to be equally vague and unspecific. The State, and for that matter any statutory employer, must take great care when proceeding to terminate a career on the ground of unsuitability, to ensure that its order is founded in definable material, objectively assessed and relevant to the ground on which the termination is effected.
32. We have already made reference to Belliappa's case and may also advert to the case of Babu Lal (cited supra). Relying on Rajinder Kaur v. State of Punjab , the Supreme Court had held in Paragraph 8 of the judgment as following:
8. Moreover, from the sequences of facts of this case the inference is irresistible that the impugned order of termination of the service of the appellant is of penal nature having civil consequences. It is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside.
33. We may also note that a Constitution Bench in Jagdish Mitter (cited supra), on 20.09.1963 had, on a hypothetical issue, where proceedings might have been initiated but later on they were discontinued and a discharge simpliciter was prescribed, held as following:
In order to avoid imposing any stigma which an order of dismissal necessarily implies, the enquiry is stopped and an order of discharge simpliciter is served on the servant. It must be held that the termination of services of the temporary servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued for some alleged misconduct. That is why in dealing with temporary servants against whom formal departmental enquiries may have been commenced but were not pursued to the end, the principle that the motive operating in the mind of the authority is immaterial, has to be borne in mind.
34. The net result of the inquiry, therefore, unambiguously leads to a presumption that a temporary servant is entitled to protection of Article 311, and the motive might be relevant if rights of equality are violated. The essence of the principle, we feel, would be that if adverse extraneous materials are relied on as a reason for termination even in the case of a temporary employee, (in contradistinction to the case of probationers) the end product requires to be considered as corrupted. We do not agree with the submissions of Mr. Luthra that an employer would have been between the devil and the deep sea and, therefore, the terms of contract should be ensured of full vigour. Leaving apart rhetorics, the simplified issue will be whether but for the adverse reports the axe would have fallen on the applicants when the papers in respect of them were presented before the appointing authority and now that, the contract has not been renewed, it is beyond the dispute that adverse circumstances as appearing/alleged against them have been taken full notice of, but simultaneously no opportunity given to make submissions, in defence of their stand.
35. We may also take note of a recent decision of the Hon'ble Supreme Court as appearing in 2007 AIR SCW 6764 (Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation). The Bench had indicated that the protection against arbitrary treatment might be available even for a probationer in certain extreme cases. The Court had approved and accepted the observations made in earlier judgments of the Supreme Court, and it would be worthwhile to quote Paragraphs 24 and 25 as hereinbelow:
24. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basis Sciences, Calcutta and Ors. , Jagannadha Rao, J (as His Lordship then was) opined that material which amounts to stigma need not be contained in termination order but may also be contained in an order or proceeding referred to in termination order or in an annexure thereto. We have noticed various orders passed by the respondent heretobefore. When a report in a disciplinary proceeding form the foundation for the order, it would be stigmatic in nature. It would have civil consequences.
25. V.P. Ahuja v. State of Punjab and Ors. is a case where the order impugned in the writ petition was as under:
Shri V.P. Ahuja, s/o late Shri H.N. Ahuja was appointed on probation for 2 years as Chief Executive of the Coop. Spg. Mills Ltd., vide orders Endst. No. Spinfed/CCA/7844-45 dated 29.9.1998 and posted at Bacospin. However, he failed in the performance of his duties administratively and technically. Therefore, as per Clause I of the said appointment order, the services of Shri V.P. Ahuja are hereby terminated with immediate effect.
It was held to be stigmatic in nature stating:
7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.
8. The affidavits filed by the parties before the High Court as also in this Court indicate the background in which order, terminating the services of the appellant, came to be passed. Such an order which, on the face of it, is stigmatic, could not have been passed without holding a regular inquiry and giving an opportunity of hearing to the appellant.
36. The form of the order always is inconclusive. What the Court will have to examine in each case would be, having regard to the material facts existing upto the time of discharge, is the order of discharge in substance one of dismissal? The conclusion of the Court noted in Jagdish Mitter (cited supra) was 'Therefore, the `form' was not of importance but the `substance' was.'
37. We respectfully see that the result of the discussions was to the following effect:
27. From the discussions made hereinbefore, it is evident that termination of services of the appellant purporting to discharge him simpliciter cannot be accepted, being stigmatic in nature. The form of the order terminating the services coupled with the background facts clearly leads to the conclusion that the order impugned in the writ petition by the appellant was punitive.
38. We have to notice that the termination here was stigmatic, and it would have operated as a blot on their career as they could not have equal chance with other doctors in the employment market because of the termination suffered by them. The files show that the appointing authority's mind was injected with the dye of prejudice, which naturally was sufficient enough for him to use the red ink, without referring to the stand of the concerned. As pointed out by the learned Counsel for the applicants, this unceremonious exit also result in a situation where their inclusion in the Delhi Medical Service is completely jeopardized thus rendering experience gained in the best years of their life worthless. We are of the view that the termination notice is arbitrary, and though couched in a simple language, it operates as stigmatic. Their fundamental rights consequently stand violated and the termination offends procedure envisaged by Article 311 of the Constitution.
39. Resultantly, the Original Applications are allowed. The impugned orders in respect of the applicants are set aside. They will be deemed as continuing in service, and respondents are directed to renew their contract of service. They will be entitled to salary admissible to them as if they were in continuous service all throughout as Medical Officers, and are not to be discriminated as against their colleagues in the matter of their engagement. We direct the respondents to pass consequential orders, within ten days from today and it would be appreciated if they are welcomed when they report for duty, from 17.12.2007. In the backdrop of our finding and directions, we do not think it might be necessary to advert to any other grounds or contentions raised by the applicants in support of their claims. We make no order as to costs.