Central Administrative Tribunal - Delhi
Harshit vs Gnctd on 15 October, 2024
1
OA No. 3217/2022
Item No. 35/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3217/2022
Reserved on: - 13.08.2024
Pronounced on: - 27.09.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Harshit (Ex. Warder-2067)
S/o Sh. Jagbir Singh
R/o V & PO: Rajlugarhi, Distt: Sonepat,
Haryana- 131001.
Group: - 'C'
Aged: - 25 years ... Applicant
(By Advocate: Mr. Sourabh Ahuja)
Versus
1. GNCT of Delhi
Through its Chief Secretary
Delhi Secretariat,
I.P. Estate, New Delhi-2
2. Principal Secretary (Home)
Home (General) Department
GNCT of Delhi
5th Level, C-Wing, Delhi Secretariat,
New Delhi-2
3. Director General (Prison)
Prisons Headquarters
Near Lajwanti Garden Chowk,
Janakpuri, New Delhi.
4. Additional Chief Secretary (Home)
Home Department
GNCT of Delhi,
5th Level, C-Wing, Delhi Secretariat,
New Delhi-2. ... Respondents
(By Advocate: Mr. Amit Anand)
2
OA No. 3217/2022
Item No. 35/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant has prayed for the following reliefs in Para 8 of the above OA: -
"(a) Call for the records pertaining to the instant case, the service record of the applicant and the CCTV footage of Central Jail-15, Mandoli for 28.04.2021 to 30.04.2021. And
(b) Quash and set aside the order dated 30.04.2021 and appellate order dated 27.05.2022, whereby the applicant was terminated from service during probation on the basis of alleged misconduct and that to without affording reasonable opportunity as enshrined under Article 311 (2) of the Constitution of India. And
(c) Reinstate the applicant back in service with all consequential benefits viz. back-wages, seniority, promotion etc. And
(d) Award cost in favour of the Applicant and against the respondents. And/or
(e) Pass any other or further order, which this Hon‟ble Tribunal may deem fit, just equitable in the facts and circumstances of the case."
2. The undisputed facts which are apparent from the pleadings available on record are that the applicant was appointed as Warder in the officer of the respondents and he joined the duties on 12.03.2020. He states that he was deployed on duty on 28.04.2021 (1:30 PM) to 29.04.2021 (5:30 AM). There was a melee between two inmates between 7:00 to 9:00 am on 3 OA No. 3217/2022 Item No. 35/C-II 29.04.2021 i.e. after the duty hours of the applicant. The applicant submits that he was falsely implicated in FIR No. 293/2021 at PS Harsh Vihar u/s 385/387/34 IPC against him and one Sh. Devender (Warder-1606). The applicant submits that his services were terminated vide order dated 30.04.2021 (Annexure-A/1) during the probation period in pursuance of proviso to Sub-Rule 1 of Rule 5 of the CCS (Temporary Service) Rules, 1965. It is pertinent to mention here that the said order is punitive in nature as the said order was passed on the basis of alleged misconduct committed by the applicant and therefore, it was incumbent upon the respondents to afford reasonable opportunity to the applicant to defend his case as per the provisions of the Article 311 (2) (b) of the Constitution of India. The applicant further submits that he preferred an appeal dated 08.06.2021 (Annexure-A/5) against the termination order. Vide order dated 27.05.2022 (Annexure-A/2), the respondents rejected the appeal of the applicant by a non- speaking and cryptic order. He further claims that the contentions raised by him and judgments cited by him in his appeal were not dealt with by the Appellate Authority. It is relevant to mention here that as per the applicant, the termination order and the appellate order both are stigmatic in nature.
3. The applicant places reliance on the following judgments:- 4 OA No. 3217/2022
Item No. 35/C-II i. The Hon'ble Apex Court in the case of Anoop Jaiswal Vs. Govt. of India [1984 (1) SLR 426], wherein it was held that where the form is order is merely a camouflage for an order of dismissal for misconduct. It is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order.
ii. The Hon'ble Apex Court in Chandra Prakash Sahi Vs. State of U.P. [2000 (5) SCC 152] has held that if the probationer is terminated on account of general unsuitability for the post in question or for his further retention in service or for confirmation and inquiry is held and it is on the basis of that inquiry a decision is taken to terminate his service, the order will not be punitive in nature. The Hon'ble Apex Court further held that if there are allegation of misconduct and an inquiry is held to find out the truth of that misconduct and 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 allegation 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. In the instant matter, the applicant has been terminated from service on the allegations of 5 OA No. 3217/2022 Item No. 35/C-II misconduct (assaulting the inmates and extortion of money from them). Therefore, the termination order qua the applicant is founded on misconduct and it will not be a matter of motive.
iii. The applicant claims that his case is squarely covered by the judgment of this Tribunal in OA No. 874/2007 and OA No. 819/2007 titled as Devi Singh Vs. GNCTD and Gaurav Vs. GNCTD respectively. In the said judgments, this Tribunal has held that if the foundation for employee's termination from service during probation is misconduct then that employee should have been given an opportunity to defend himself as per the provisions of Article 311 (2) of the Constitution of India.
4. The applicant contends that the impugned order dated 30.04.2021 (Annexure-A/1) is arbitrary and illegal, therefore, liable to be set aside on the grounds that:-
i. The impugned action of the respondents is in violation of Article 14, 16 and 21 of the Constitution of India.
ii. The respondents did not appreciate that it is settled law that Rule 5 (i) of CCS (Temporary Service) Rules, 1965 cannot be attracted as a shortcut method to dismiss a person on the basis of a misconduct because it will become punitive in 6 OA No. 3217/2022 Item No. 35/C-II nature and even the probationer become entitled for protection under Article 311 (2) of the Constitution of India.
5. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
6. Counter reply has been filed by the respondents on 18.01.2023, wherein, it is stated that as per the CCTV footage Warder Harshit and Warder Devender both had taken out the inmates from their cells to the guard room and after some time they are seen coming out from the guard room. The respondents further state that the movement is after the lock of jail i.e. after 10:00 PM. As per the statements of 10 inmates, they were taken out from their cells, taken to guard room and were forced by the above named two warders i.e. Warder Harshit and Warder Devender to call their family through some small mobile phone to deposit money in some paytm accounts. From their activities seen in CCTV footage and as per the statements of the inmates it is clear that both the warders were involved in beating, life threat, demanding money and harassment of ten inmates with the help of other inmates of the jail. The respondents submit that the applicant was found involved in committing the offence of beating, life threat and demand for money from inmates in the jail in the intervening night of 28/29.04.2021 by these jail staff with the help of other inmates who were lodged in CJ-15, Mandoli. It is further 7 OA No. 3217/2022 Item No. 35/C-II submitted that Warder Harshit was deputed as in-charge of Ward No. 1 and Warder Devender was deputed as in-charge of Ward No. 3 in evening shift.
7. It is an admitted fact that the applicant preferred an appeal dated 08.06.2021 against the termination order dated 30.04.2021. The respondents contend that the Appellate Authority accorded him personal hearing through video conferencing on 02.02.2022 and rejected his appeal vide order dated 27.05.2022 only after examining all the facts of the matter specifically mentioning therein that the appellant accepted the offer of appointment vide his letter dated 21.02.2020 where he specifically mentioned that he accepted the terms and conditions mentioned therein. The aforesaid terms and conditions make it clear that the Appointing Authority i.e. Director General (Prisons) reserves the right of terminating the services of the appointee forthwith or before expiry of the stipulated period of notice by making payment for the unexpired period. The appellant was a temporary appointee, on probation for two years from the date of appointment. His services were terminated by the Director General (Prisons), under Rule (5) of the Central Civil Services (Temporary Service) Rules, 1965, in accordance with the aforesaid conditions of appointment which clearly provided for termination of service without assigning any reason with one month notice or salary undue thereof. The respondents 8 OA No. 3217/2022 Item No. 35/C-II further contend that keeping in view the serious misconduct of the applicant, his services were terminated under Rule 5 (1) of Central Civil Services (Temporary Services) Rules, 1965. In the counter reply filed by the respondents, same has been stated repeatedly by them. In view of the above facts and circumstances, the respondents have prayed for dismissal of the present OA.
8. In response to the reply filed by the respondents, the applicant has filed rejoinder on 13.03.2023 reiterating the relief sought for and the grounds in support thereof.
9. We have considered the submissions made by the learned counsels for the parties and with their assistance, perused the pleadings available on record.
10. The applicant places reliance on OA No. 1319/2021 in the matter of Satyender Vs. GNCTD decided on 02.06.2023. The relevant portion of the same reads as under:-
"7. The Hon‟ble High Court of Delhi has considered a similar controversy in Nina Lath Gupta, 2023:DHC:2944. The relevant parts of the judgment read as follows:
"27. Therefore, what emerges from the conspectus of the aforesaid judgments is that if an order is founded on allegations, the order is stigmatic and punitive and services of an employee cannot be dispensed with without affording him an opportunity of defending the accusations/allegations made against him in a full- fledged inquiry. Since this case relates to a tenure appointment, it will be pertinent to look at the law with 9 OA No. 3217/2022 Item No. 35/C-II respect to stigmatic orders in the context of tenure appointments. In Dr. L.P. Agarwal v. Union of India and Others, (1992) 3 SCC 526, Petitioner was Director, AIIMS, who had been appointed for a period of 5 years or till he attained the age of 62 years, whichever was earlier, the Supreme Court examined the meaning and connotation of the term 'tenure' and observed that tenure is a term during which an office is held. It is a condition of holding office and once a person is appointed to a tenure post, his appointment begins when he joins and comes to an end on completion of the tenure, unless curtailed on 'justifiable' grounds. Such a person does not superannuate, he only goes out of office on completion of his tenure and thus, the question of prematurely retiring him does not arise. In A.P. State Federation of Coop. Spinning Mills Ltd (supra), Respondent was appointed as General Manager (Finance) for a period of 3 years and prior to the said period coming to an end, his services were terminated. Respondent approached the High Court in a writ petition seeking quashing of the order and the learned Single Judge dismissed the writ petition after coming to a conclusion that the termination order was innocuous and not penal in nature and termination being in accordance with the contract of service, after giving three months' salary in lieu of the notice, required no interference. The Division Bench, allowing the appeal held that though the order on the face of it appeared to be innocuous, however, if the attendant circumstances were examined, more particularly, the stand in the counter affidavit, the conclusion was irresistible that the order was penal in nature and since penalty was imposed without affording opportunity to meet the charge, the order was unsustainable. This order of the Division Bench was challenged before the Supreme Court and the contention of the Appellant was that the reasons indicated in the order were the motive for termination and not the foundation, requiring an inquiry, prior to termination. The Supreme Court upheld the order of the Division Bench, to the extent that the order of termination was vitiated and ruled as follows:-10 OA No. 3217/2022
Item No. 35/C-II "3. The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. But the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. The decisions of this Court relied upon by Mr K. Ram Kumar also stipulate that if an allegation of arbitrariness is made in assailing an order of termination, it will be open for the employer to indicate how and what was the motive for passing the order of termination, and it is in that sense in the counter-affidavit it can be indicated that the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. But on examining the assertions made in paras 13 and 14 of the counter- affidavit, in the present case it would be difficult for us to hold that in the case in hand, the appellant-employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question.
4. In fact, the letter of the Commissioner for Handlooms and Director of Handlooms and Textiles dated 19-5-1993 was the foundation for the employer to terminate the services and as such the Division Bench of the Andhra Pradesh High Court was justified in holding that the order of termination is based upon a misconduct, though on the face of it, it is innocuous in nature. We therefore do not find any infirmity with the said conclusion of the Division Bench of the Andhra Pradesh High Court requiring our interference."11 OA No. 3217/2022
Item No. 35/C-II xxx xxx xxx
29. Another judgment, which needs a mention and is close on facts, is in the case of Dr. Vijayakumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 SCC 426, wherein the Supreme Court observed that the termination order was issued in the backdrop of Internal Complaints Committee Report and going by the terms and tenor of the order, it was incomprehensible to construe such an order to be an order simpliciter when the report of the Inquiry Committee was the foundation. The Supreme Court also reiterated the position of law that the material which amounts to stigma need not be contained in the termination order and may be in any document referred to therein, which reference will inevitably effect the future prospects of the incumbent and if so, the order must be construed as an ex facie stigmatic order of termination."
8. Further the Hon‟ble High Court of Allahabad in Vijay Raj v. Union of India, Writ A. No.63968 of 2005, decided on 05.03.2020, has considered the law laid down by the Hon‟ble Apex Court in a catena of decisions, including in a few Constitution Bench judgements and has ruled in paras 61 and 62 as follows:
"61. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under :
(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution.
(b) An order of termination simpliciter prima facie is not a punishment and carries no evil consequences.
(c) Where termination simpliciter is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it 12 OA No. 3217/2022 Item No. 35/C-II does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simpliciterness of the said order.
(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct.
(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.
(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping.
"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. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.
(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not.
(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.13 OA No. 3217/2022
Item No. 35/C-II
(i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.
(j) Every enquiry preceding the order of, termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive.
(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.
(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.
(m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive
(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.
(o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive.
i. "want of application", ii. "lack of potential", iii.
"found not dependable", iv. "under suspension", v.
"work is unsatisfactory", vi. "unlikely to prove an 14 OA No. 3217/2022 Item No. 35/C-II efficient officer".
(p) Description of background facts also have not been held to be stigmatic.
(q) However, the words "undesirable to be retained in Government service", have been held stigmatic.
(r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive.
62. The aforesaid are not exhaustive, but lay down some of the principles to find out whether termination of an employee is simpliciter or punitive. Each and every case has to be considered in the light of the facts and circumstances of the case, but broadly the aforesaid are the factors to find out whether termination of an employee is punitive or not."
9. From the aforesaid judgment it stands settled that each and every case has to be considered in the light of the facts and circumstances of case, of course, broadly keeping in view the factors as recorded in the said judgment to find out whether the termination of an employee is punitive or not? It also stands settled that while deciding whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality weighed with the employer to terminate the services of the probationer."
11. The judgment of this Tribunal in the matter of Satyender (supra) was upheld by the Hon'ble High Court of Delhi in the Writ Petition (C) 12635/2023 in the matter of GNCTD & Ors. Vs. Satyender. The ratio laid down in the above mentioned judicial orders/judgment is applicable in this case also. The Hon'ble High 15 OA No. 3217/2022 Item No. 35/C-II Court of Delhi while deciding the matter on 05.03.2024 has held as under:-
"2. We find that the issue raised in the present petition is squarely covered against the petitioner by a recent decision of a Co-ordinate Bench dated 28.02.2024 in W.P.(C) 12696/2023 titled Govt of NCT of Delhi and Ors v Virendra. From a perusal of the record, it emerges that till date notice has not been issued in the present petition. Even today, an adjournment slip has been moved by the petitioner, but despite the matter being passed over, none appears on behalf of the petitioners.
3. In these circumstances, when we find that the matter is already covered by a recent decision of a Coordinate Bench in Virendra (supra), we have proceeded to consider the petition on merits. As noted hereinabove, the learned Tribunal has set aside the impugned order after finding that even though the termination of the respondent was punitive and stigmatic, the same had been passed without holding any enquiry or following the principles of natural justice. Since a similar stigmatic order passed under Rule 5 of CCS (Temporary Services) Rules, 1965, was quashed by the Co-ordinate Bench in Virendra (supra), we may usefully refer to paragraph nos. 45 to 48 of this decision. The same read as under:
"45. The stand of the petitioners before the Tribunal and before us is by relying upon the fact that the petitioner was absent between the period April 11, 2017 to April 21, 2017 for which a memorandum was issued to the respondent. A reference is also made to the FIR registered against respondent under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Ac', for short). So it follows that the absence / the FIR were the foundation' for terminating the services of the respondent and as such the same could not have been done without following the principles of natural justice. The said order of termination is stigmatic and punitive in nature. We may also state that, had the rules permitted, a government servant who is 'found unlikely to prove himself an efficient 16 OA No. 3217/2022 Item No. 35/C-II police officer' may be discharged by the employer within three years of enrollment, as was the rule in the case of Jaswant Singh (supra) would justify the termination, but no such rule has been shown to us. In any case, the termination being under Rule 5, the same has to be an order simpliciter.
46. In the present case, we have already held that the impugned order is stigmatic and that the Tribunal was justified to the extent of holding that the termination order of the respondent was bad. But, what we do not agree is the conclusion arrived by the Tribunal, that is, the Tribunal while setting aside the order of termination had granted liberty to the petitioners to initiate disciplinary enquiry and/or take action in accordance with the relevant rules depending upon the final outcome of the FIR, which according to us shall mean that the employer needs to wait for the final decision on the FIR, which will take its own time.
47. We would state here that, mere pendency of an FIR shall not restrain/preclude the employer to initiate disciplinary proceedings under the relevant rules, as it is a settled law that, a Criminal Case & Departmental Enquiry are two different proceedings and for holding the charge against a government servant in a departmental enquiry, the same needs to be proved on the principles of preponderance of probability.
48. We dispose of the petition by directing the petitioners to reinstate the respondent in service within six weeks of the receipt of the copy of this order with all consequential benefits in accordance with the relevant rules and instructions but with liberty to the petitioners to initiate action against the respondent in accordance with the conduct rules and proceed accordingly. No costs."
In the light of the aforesaid, when a Co-ordinate Bench of this Court has already taken a view that a stigmatic order cannot be passed under Rule 5 of CCS (Temporary Services) Rules, 1965 without holding an enquiry and following the principles of natural justice, we find absolutely no reason to interfere with the impugned order 17 OA No. 3217/2022 Item No. 35/C-II which while setting aside a stigmatic order passed against the respondent, has granted liberty to the petitioner to initiate action against him as per law if deemed necessary."
12. The applicant further places reliance on the judgment passed by H0n'ble Supreme Court in the case of A P State Federation of Coop. Spinning Mills Ltd. & Another Vs. P. V. Swaminathan in Civil Appeal No. 5037/1997. The relevant portion of the same reads as under:-
"3. The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. But the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. The decisions of this Court relied upon by Mr. K. Ram Kumar also stipulate that if an allegation of arbitrariness is made in assailing an order of termination, it will be open for the employer to indicate how and what was the motive for passing the order of termination, and it is in that sense in the counter-affidavit it can be indicated that the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. But on examining the assertions made in paras 13 and 14 18 OA No. 3217/2022 Item No. 35/C-II of the counter-affidavit, in the present case it would be difficult for us to hold that in the case in hand, the appellant-employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question."
13. Per contra, learned counsel for the respondents places reliance on the following orders/judgments passed by the various Courts:-
(i) Hon'ble High Court of Delhi in W.P. (C) 6596/2023 in the matter of Government of NCT of Delhi & Anr. Vs. Dalbir Singh decided on 06.09.2023, wherein it was held as under:-
"16. We are of the considered view that the Tribunal missed the fine distinction between „motive‟ and „foundation‟ as brought out in several judgments and wrongly reached the conclusion that the termination order was punitive by simply relying upon Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Ors. (supra).
17. For the foregoing reasons, the order passed by the Tribunal is set aside and the termination order passed by competent authority dated November 06, 2017 is upheld. The writ petition is accordingly allowed. No orders as to costs. Pending applications, of any, also stand disposed of."
(ii) Hon'ble High Court of Allahabad in W.P. No. 63968/2005 in the case of Vijay Raj Vs. Union of India & Ors. decided on 05.03.2020, wherein the following was held:-
"(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping. "Motive" is the moving power, which impels action for a definite result, or to put it differently. "Motive" is that which 19 OA No. 3217/2022 Item No. 35/C-II incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.
(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not.
(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.
(i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.
(j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive.
(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.
(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.
(m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive
(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the 20 OA No. 3217/2022 Item No. 35/C-II plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.
14. Learned counsel for the respondents further places reliance on official noting filed by the respondents department wherein DG (Prisons) noted the following:-
"10. These misconducts are very serious.
11. W/1606 Devender be placed under suspension.
12. W/2067, Harshit is in probation period. His services be terminated under Rule - 5 (1) of Central Civil Services (Temporary Services) Rules, 1965.
13. Put up file afterwards."
15. While filing their reply, the respondents have stated that the impugned order is neither punitive nor stigmatic and does not cast any stigma on the applicant. It is an order simpliciter and does not carry any evil consequences. Therefore, the impugned order is in accordance with law.
16. In view of the law laid down in the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences & Anr.3. AIR 2002 Supreme Court 23, orders/judgments relied upon by the respondents, do not hold much ground. In fact, examination of remarks at page 3/N of DG (P) which have been quoted in Para 14 above reveals that the order is stigmatic. As per judgments cited supra, it is well established and judicially evolved test that whether substance of 21 OA No. 3217/2022 Item No. 35/C-II any order of termination is punitive or not is to be seen whether prior to the termination (a) There was full scale formal enquiry,
(b) allegations involved moral turpitude or misconduct, (c) which culminated in finding of guilt. If all three factors are present, the termination has been held to be punitive irrespective of the form of termination order. The order dated 27.05.2022 (Annexure-A/2) passed by the Appellate Authority does not pass the above mentioned laid down test. It could be seen that all the three elements are present in the appellate order dated 27.05.2022 (Annexure-A/2). In the aforesaid background, even if it is assumed that the impugned order is a simpliciter, however, in view of specific stand taken by the respondents while disposing of appeal of the applicant the appellate order cannot be construed as order simpliciter.
17. We are of the considered view that the impugned order of termination is founded on account of specific misconduct of applicant that impugned order is found to be punitive and stigmatic and such elements are reflected by the respondents in their appellate order. The same is being passed without holding enquiry and without following principles of natural justice which is not sustainable in the eyes of law.
18. In view of the above and binding precedents, the present OA is allowed with following directions:-
22OA No. 3217/2022
Item No. 35/C-II i. Order dated 30.04.2021 (Annexure-A/1) of Disciplinary Authority and the appellate order dated 27.05.2022 (Annexure-A/2) passed by the respondents are quashed and set aside and the respondents are directed to reinstate the applicant within six weeks of the receipt of certified copy of this Order.
ii. The applicant shall be entitled to all consequential benefits.
iii. However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
iv. No cost. Pending MAs, if any, stand closed
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/