Rajasthan High Court - Jaipur
Shakti Kant Pathak vs The Paschimi Rajasthan Dugdh Utpadak ... on 20 November, 1990
Equivalent citations: 1990(2)WLN271
JUDGMENT Jasraj Chopra, J.
1. This special appeal is directed aginst the order of the learned single Judge of this Court dated 29.7.86 whereby the petitioner's writ petition has been dismissed.
2. The contention of the petitioner-appellant is that he was initially appointed as L.D.C. in the respondent Paschimi Rajasthan Dugdh Utpadak Sahkari Sangh Ltd, Jodhpur on purely adhoc basis for a period of six months vide Order Annexure-1 dated 18.1.1986. It is alleged that while the petitioner appellant was in service, he was asked to explain his conduct vide letter Annexure-6 dated 19.5.86. Certain irreqularities were pointed out as regards his working in the discharge of his duties as a Despatcher. Thereafter, by order Annexure-3 dated 17.6.1986, he was transferred from Jodhpur to Phalodi. However, vide order Annexure-2 dated 21.6.1986, his services were terminated on expiry of six months. The petitioner-appellant has challenged the order Annexure-2 dated 21.6.1986 on two grounds: firstly that it is penal in character and secondly that it is arbitrary as persons appointed with him and after him have been retained in service and, therefore, it is violative of Articles 14 and 16 of the Constitution.
3. It has been alleged that one Shri Ramesh D. Purohit was appointed with the petitioner-appellant and he has been retained in service whereas the services of the petitioner-appellant has been terminated. It has further been daimed that one Shri Nabi Hussain was appointed vide Order dated 30.4.1986 for a period of four months and his services were extended for a hither period of two months vide Order Annexura-5 dated 24.6.1986. Thus, it has been submitted that Shri Nabi Hussain, who was appointed after the petitioner has been kept in service whereas the services of the petitioner-appellant have been terminated and, therefore, the order Annexure-2 dated 21.6.1986 is arbitrary and violative of Articles 14 and 16 of the Constitution.
4. The writ petition came to be dismissed in limine by a learned single Judge of this Court on the ground that the petitioner's appointment was a term appointment and therefore, the termination of the services of the petitioner after the expiry of that term is not violative of Articles 14 and 16 of the Constitution. It was further held by the learned single Judge that since the appointment of the petitioner is being terminated in terms of the order as the petitioner was appointed for a fixed term, therefore, simply some persons who have been appointed later on, they are retained in terms of their appointment, then no exception can be taken to the termination of the petitioner's appointment after expiry of the fixed term. No reason for unsuitability or misconduct has been disclosed in the order. It was also held that the order is innocuous simplicitor, therefore, unsuitability and misconduct as the basis for termination cannot be inferred.
5. We have heard Mr. Mridul, the learned Counsel appearing for the petitioner-appellant and Mr.B.C. Mehta, the learned Counsel appearing for the respondents.
6. The contention of Mr. Mridul is that the impugned order Annexure-2 dated 21.6.1986 suffers from two vices: i.e.(i) it is penal in character and (ii) that it is arbitrary and violative of Articles 14 and 16 of the Constitution of India. He has submitted that certain authorities were cited before the learned single Judge but they were not considered. He has also drawn, our attention to certain authorities, which we shall deal with hereunder.
7. Our attention has been drawn to a decision of their lordships of the Supreme Court in Commodore Commanding, Southern Naval Area v. V.N. Ranjan , wherein it has been held:
That even a temporary Govt. Servant Is entitled to the protection of Article 311(2) of the Constitution where termination involves a stigma or amounts to punishment.
It may be stated here at the very outset that in this case, the appointment of the petitioner was purely on adhoc basis for a fixed term of six months. It is not a case of regular appointment on temporary basis. In Commodore Commanding, Southern Naval Area's case (supra), the petitioner was appointed as a Labourer on casual basis on 18.12.1961. He was continued in the respondent's employment as labourer in lieu of Sailor in B.R.O. (Installation) Department, Cochin against some existing vacancy with effect from the forenoon of 18.1.62 by Ext.P.2. When he was casual labourer in the B.R.O.(Installation) Department, he was transferred by the appellant to the Naval Armament Depot, Alwaye and appointed as labourer in the regular cadre in the scale mentioned therein plus allowances as admissible from time to time in an existing vacancy with effect from 15.11.62. Subsequently, when the respondent was working as a labourer in the Naval Armament Depot, at Alwaye, the appellant promoted him and appointed him as A.R.L. Gr.II in the Naval Armaments Depot, Alwaye in the scale mentioned therein plus allowances as admissible from time to time in an existing vacancy with effect from the forenoon of 2.3.64. Thereafter, his services were terminated by order dated 17.1.67. It was held by their lordships of the Supreme Court that they are satisfied that the decision to terminate the services of the respondent had been taken at the highest level on the: ground of unsuitability of the respondent in relation to the post held by him. It was observed that it is not by way of any punishment and no stigma is attached to the respondent by reason of the termination of his services but still, this termination on the ground of unsuitability attracted Article 311(2) of the Constitution. Suffice it to say, that it was not a case of term appointment on adhoc basis but, it was a case of temporary appointment where the petitioner was in service for about 6 years and during that period, he was absorbed as a regular employee and even he was promoted to the next higher post and it was thereafter that his services were terminated. It was in these circumstances that such a termination was held to be violative of Article 311(2) of the Constitution.
8. Our attention was next drawn to a decision; of their lordships of the Supreme Court in State of U.P. v. Sughar Singh . That was a case of reversion of the petitioner, although his juniors were retained on promotional post, which they occupied on officiating basis. It was felt that such reversion amounts to punishment and, therefore, it entails the vice of Article 311(2) of the Constitution. It was, therefore, observed that such a reversion cannot be made without taking disciplinary proceedings. Here, in the case in hand, Shri Ramesh D. Purohit has been retained in service because he was senior to the petitioner in merit and, therefore, no grouse can be raised as regards the retention of Shri Ramesh D. Purohit. Sofaras the case of Shri Nabi Hussain is concerned, it has been clamied that initially he was employed in the Census Department of the Govt. of Rajasthan, where he was declared surplus and, therefore, he was ordered to be absorbed by the respondents vide an order of the Govt. His absorption is regulated by the Rajasthan Civil Services (Asorption of, Surplus Personnel) Rules, 1969 and, therefore, his retention cannot affect,the case,of the petitioner. More over, Shri Nabi Hussain too was given a term appointment and that term appointment had not expired. Earlier, he was appointed for a period of four months but later, his term was extended for a further period of two months. It is not known what has happened after completion of his six months' service. Be that as it may, it is clear that Shri Nabi Hussain is a surplus employee and is guided by the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 and, therefore, no exception can be taken to the retention of such a person, who was earlier in service and has been absorbed in the respondent Paschimi Rajasthan Dugdh Utpadak Sahkari Sangh Ltd. under the orders of the Govt. Thus, this authority AIR 1974 SC 423 has no application to the facts of this case.
9. Our attention was also drawn to a decision of their lordships of the Super me Court in Nepal Singh v. State of U.P. AIR 1985 SC 85, it was a case of Sub-Inspector, who was in service prior to 1964. The exact date of his appointment is not known but it is certain that in the year 1964, when he was posted at Pithoragarh, he contacted a second marriage, while his first wife was alive and thereafter, certain adverse entries were made against him on account of low reputation and integrity and his habit of creating problems everywhere he is posted and the encouragement provided or given by him to the gambling activities, excise offences and brothel criminals etc, His services were terminated by order dated 27.4.1970 i.e. after about more than six years, of his service, He was a regular employee on temporary basis. In those facts, it was observed by their lordships of the Supreme Court that where allegations of misconduct are levelled against a Government Servant than it is a case where the provisions of Article 311(2) of the Constitution should be applied. It is not open to the competent authority to lake the view that holding the enquiry contemplated by the clause would be a bother or a nuisance and that, therefore, it is entitled to avoid the mandate of that provision and resort to the guise of an exfacie innocuous termination order. In this case, there are no such allegations. The only allegation made against the petitioner is with regard to the irregularity in the maintenance of the dispatch and receipt registers and that aspect of the matter will be dealt with later on.
10. In K. C. Joshi v. Union of India , the appelant was a Store Keepar in ONGC, who continued in service on regular basis until further orders on completion of probation his services were terminated on the ground of his un-satisfactory work and also unsuitability. It was a case where the petitioner was initially appointed as Assistant Store Keeper in April 1962. Later, he was selected in the open competition for the post of Store Keeper and was appointed on December 7, 1963 as such and his services were made regular. There after, by an order dated 29.12.1967, his services were terminated although the order of termination was simplicitor but it was claimed that they are being terminated on the ground of his unsatisfactory work and unsuitability. The appellant being a protected workman, their lordships of the Supreme Court held that he should have been served with the charge sheet and thereafter, his services should have been terminated because Article 311(2) of the Constitution was attracted in such a case. Suffice it to say that in this case, the petitioner was not a regular employee but he was appointed on adhoc basis for a fixed term and, therefore, this authority has no application to the facts of this case.
11. Our attention was next drawn to a decision of this Court in Madhav Prasad v. R.S.R. T. C. and Orders 1989(1) RLR 562, where in it has been held that the termination of the services of an employee after the expiry of his period of probation passed by way of punishment for alleged misconduct cannot be sustained without complying with the provisions of Article 311(2) of the Constitution. In this case, the petitioner has not been confirmed and he was not taken in service on a regular post. He was only appointed for a fixed term and, therefore, this authority has no application to the facts of this case.
12. In Sumer Singh v. Union of India 1954(1)SCC 162, the termination order Was hald to be penal in character. The appellant was discharged from service for unsuitability while his application for extension of term of service was pending consideration. In that case, the apellant'services were terminated because he was involved on a criminal case. He remained in-service for about 9 years and, thereafter, his services were terminated, Al though he was a temporary servant but actually he was on a regular post. In those facts, it was held that the authority would have allowed extension of service term if appellant had been acquitted prior to the discharge order. It was further held that after discharge, the appellant. received certificate of good conduct form the concerned authority and, therefore, considering peculiar facts and circumstances of the case, it was held that the appellant should be compensated by payment of a lump sum amount of Rs. 35,000/- in lieu of benefits to which he would have been entitled if he had continued in service for the extended period. It was also held that the words 'unsuitable for retention...on disciplinary grounds' should be deleted form the discharge order. However, the appellant was not taken back in service Thus, case is not covered by this authority. It is much different on facts.
13. Mr. Mridul further placed reliance on a decision of their lordships of the Supreme Court in Jarnail Singh v. State of Punjab , wherein it has been observed:
That the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an adhoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in Innocuous terms, it is incumbent on the court of lift the vell and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, In such.a case, will lift the veil and will see whether the order was made on the ground of miscon-ductlinefficincy or not. In the Instant case, allegations of serious misconduct against the petitioners and also the adverse entries In the service records of these petitioners were taken into consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure provided in Article 311(2) of the Constitution while considering the fitness and suitability for the purpose of regularizing their services In accordance with the Government Circular made in October, 1980. Thus, the Impugned orders terminating the services of the petitioners appellants on the ground that 'the posts are no longer required' are made by way of punishment.
In the case in hand, the petitioner Was. appointed on a fixed term of six months and thereafter, his services have been terminated." It is true that according to the petitioner; a memo was served on him calling his explanation as to why he committed certain irregularities in maintaining the receipt and dispatch registers. He submitted his explanation admitting his mistake and assured his authorities that in future, he will make no further irregularities and, thereafter, no action has been taken on this memo against the petitioner. However, the order (Annexure-2) dated 21.6.1986 has been passed which is simpliciter in character, disclosing that his services are being terminated on the expiry of his term of six month's service. It does not cast any stigma whatsoever. Even if it is assumed has been submitted by Mr.Mridul that the termination order has been passed on the ground of his unsatisfactory work then too, it has been held by their lordships of the Supreme Court in State of Gujarat v. Akhilesh C.Bhargav and Orthers. (1987) 9 Reports (SC)731 that incase of a probationer, observation like 'unsatisfactory work and conduct' would not amount to stigma.
14. Mr.B.C. Mehta, the learned Counsel appearing for the respondents has drawn our attention to a decision of their lordships of the Supreme Court in S.P. Vasudeva v. State of Haryana , wherein it has been observed:
That where an order of reversion of a person who hap no right to the post, does not show ex facie that he was being reverted as a measure of punishment or does not cast any stigma on him, the Courts will not normally go behind that order to see If there were any motivating factors behind that order.
It was further observed that the whole position in law was confusing. It is time that the whole question was considered de novo and it would be better for all concerned and avoid a lot of avoidable litigation if it should be held that the reversion of a probationer from a higher to a lower post, or the discharge of a probationer, or the discharge from service of a temporary servant cannot be questioned except on the basis of mala fides in the making of the order. In the instant case/there are no allegations of mala fides. Shri Ramesh D.Purohit has been retained in service because he was senior in merit to the petitioner and Shri Nabi Hussain has been retained in service because he was a surplus employee anchas been absorbed by the Department under the orders of the Govt, and therefore, no mala fides can be imputed in this case.
15 In Regional Manager v. Pawan Kumar , it was held by their lordships of the supre me Court as follows:
That before Article 16 Is held to have been violated by some action, there must be a clear demonstration of discrimination between one Govt, servant and another, similarly placed, which cannot be reasonably explained except on an assumption or demonstration of 'malice in law' or 'malice in fact'. Acting on a legally extraneous or obviously misconceived ground of action would be a case of 'malice in law'. Orders of reversion passed as a result of administrative. exigencies, without any suggestion of malice in law or in fact are not vitiated merely because some other Govt, servants, juniors in the substantive rank, have not been reverted.
In Oil & Naberal Gas Commission v. M.D.S.Iskander Ali , it has been observed by their lordships of the Supreme Court:
That where the short history of the service of the probationer appointed in a temporary post clearly showed that his work had never been satisfactory and he was not found suitable for being retained in, service and that was why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him and in these circumstances, if the appointing authority considered it expedient to terminate the services of the probationer, it could not be said that the order of termination attracted the provisions of Article 311, when the appointing authority had the right to terminate the service with out assigning any reasons. Insuchacase, even if misconduct, negligence, inefficiency might be the motive or the inducting factor which influenced the employer to terminate the services of the employee, a power which the employer undoubtedly possessed, even so as under the terms of appointment of the employee, such a power flowed from the contract of service, termination of service could not be termed as penalty or punishment. Further adverse remarks in the assessment roll and recommendation there in to extend the probationary period could not be said to indicate that the intention of the appointing authority was to proceed against the employee by way of punishment.
In this case, according to the respondents, the petitioner's services have not been terminated on account of his unsatisfactory work as he was only asked to be careful in future. It was submitted that for certain irregularities, his explanation was called and he admitted his guilt and thereafter, no action has been taken in that matter and, therefore, the impugned order Annexure-2 dated 21.6.1986 cannot be termed to be an order, which is punitive in character. Even the order Annexure-2 dated 21.6.1986 cannot be termed as arbitrary and violative of Article 16 of the Constitution because Shri Ramesh D.Purohit has been retained in service because he was senior in merit to the petitioner and Shri Nabi Hussain has been kept in service because he was a surplus employee, whose services have been absorbed by the Department under the orders of the State Govt. Thus, the order Annexure-2 dated 21.6.1986 cannot be characterized as arbitrary and violative of Article 16 of the Constitution.
16. Mr. Mehta has further drawn our attention to a decision of Punjab & Haryana High Court in Y.K.Bhatiya v. State of Haryana 1977 (1)SLR 85, Where in it has been observed:
That before Article 16 is held to have been violated by some action, there must be a clear demohstration of discrimination between one Govt, servant and another, similarly placed, which cannot be reasonably explained except on an assumption or demonstration reasonably Explained except on an assumption or demonstration of 'malice in law' or 'malice in fact'. As we have explained acting on a legally extraneous or obviously misconceived ground of action would be a case of 'malice in law. Order of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact are unaffected by Sughar Singh's case (supra). They are not vitiated merely became some other Govt.servanis, Junior in substantive rank have not been reverted.
It will be open to the persons effected in individual cases to establish discriminatory treatment, which cannot be explained except on the basis of. malice in law or malice In fact. Without any suggestion of malice in law or malice in fact, there can be no question of invoking the aid of Article 16(1) of the Constitution against an order of termination of service or reversion of a temporary employee merely because juniors are continuing.
In B.K. Ashta v. U.O.I. and Orders 1986 (1)SLR)43, it has been held by Punjab & Harayana High Court that the termination of service of a temporary employee for unsatisfactory conduct and work by innocuous order of termination as per terms of his service condition is valid and it does not suffer from the vice of Arts. 16 and 311 of the Constitution.
17. Lastly, our attention was drawn to a decision of their lordships of the Supreme Court in Govt. Branch Press v. D.B. Belliappa , where in it has been observed:
that if the services of a temporary Govt, servant are terminated, in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and for for his work being unsatisfactory, or for alike reason which marks him off a class a part from other temporary servants who have been retained in service, there is no question of the applicability of Article 16.
18. Taking an overall view of all these authorities, the resultant position that emerges out can be summarised thus: that when a person is appointed on adhoc basis or as a temporary measure or a fixed term then if his services are terminated by an order which is simpliciter or innocuous in character, although the inducing factors which influenced the authority to take this action might be based on the alleged acts of misconduct or unsuitability of the employee concerned, which are not disclosed in the order the too that termination cannot be challenged as being violative of Arts. 14,16 of the Constitution unless malice in law or malice in fact is alleged and proved. In this case, both these allegation are neither alleged nor proved.
19. In the result, we find no force in this appeal and it. is hereby dismissed without any order as to costs.