Chattisgarh High Court
Bhagwan Das Sahu vs State on 16 January, 2018
Author: Manindra Mohan Shrivastava
Bench: Manindra Mohan Shrivastava
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No.3357 of 2005
• Bhagwan Das Sahu
---- Petitioner
Versus
• State of M.P.( now CG) and others
---- Respondents
For Petitioner : Shri Amrito Das, Advocate
For Respondent/State : Shri S. Majid Ali, Deputy Government Advocate
Hon'ble Shri Justice Manindra Mohan Shrivastava
Order on Board
16/01/2018
Heard.
1. Whether the termination order of the petitioner, who was a temporary employee, was founded on allegations of misconduct or merely a motive for termination, is the seminal issue arising for consideration in the present case.
2. Quintessential facts of the case, necessary for adjudication of controversy involved in the present case, as stated above, needs to be stated briefly as infra.
The petitioner was appointed as Driver in the services of the respondents vide order dated 16-01-1997 for a period of 89 days, followed by another order of appointment dated 17-06-1997, appointing him on temporary and emergency basis until further orders. At the relevant time, the petitioner was posted and working as Driver with the District Forum Establishment, Durg, a notice was issued to the petitioner by the President of District Forum on 14-10-1998. In the notice, it was stated that the petitioner is not working as driver efficiently and despite repeated warning, he is not improving upon his performance. Reference was made to earlier notice dated 03-02-1998. In addition, it was also alleged that the petitioner was not obedient. It was further alleged that though the petitioner was possessed of licence to drive Heavy Goods Vehicle (HGV) only, the petitioner ventured to drive light motor vehicle. It was also alleged that the petitioner is not discharging his duties with integrity and his work was not satisfactory. Further allegation was that without giving any prior information, the petitioner is in the habit of remaining absent and acting irresponsibly. It was also alleged that such type of conduct of the petitioner would adversely affect other employees in performance of their duties. Allegations stated in the said notice, are as below:-
1- "okgu pykus esa vkidk /;ku cVs jgus ,oa ckj&ckj esjs }kjk crk, tkus ij Hkh vuqlquh fd;k tkuk ,oa dksbZ lq/kkj u djuk vkids okgu pkyd ds :i esa vuqHkoghu rFkk vkids dq'ky pkyd gksus dh lafnX/krk dk tUe nsrk gS] ftlls [krjs dk lnSo Hk; cuk jgrk gSA vki esa /;ku fo/kekurk ,oa lrZdrk dh deh gSA bl laca/k esa vkidks dbZ ckj ekSf[kd ,oa fyf[kr esa psrkouh nh xbZ gS fdarq vki esa dksbZ lq/kkj ugha gqvkA d`i;k bl dk;kZy; dk Kkiu dz0 769@ft-Qks-fn- 03-02-98 dk voyksdu djsaA 2- vkids }kjk iznRr ykblsal fn- 29-10-96 ¼Nk;k izfrfyfi½ ds eqrkfcd vkidks ek= ,p-th-Ogh- (Heavy goods vehicle only) okgu dks pykus gsrq vuqefr nh xbZ gS fdarq bl vof/k dk ,y-,e-Ogh vFkkZr dkj pykus gsrq vuqefr ugha FkkA d`i;k vki Li"V djsa fd fdu ifjLFkfr;ksa esa vkius ,slk nqLlkgl fd;k ,oa 'kkldh; okgu pykus ds oDr vkius lgh tkudkjh vius vf/kdkjh dks ugha fn;k rFkk tksf[ke Hkjk [krjk mBkrs gq, vius vf/kdkjh dks va/kdkj esa j[kkA 3- vki viuh lsok lR;fu"Bk ls ugha dj jgsa gS rFkk vkids dk;Zdyki vlarks"kiw.kZ gSA iwoZ esa vki fcuk fdlh dks lwfpr fd;s izk;% vuqifLFkr gks tkrs Fks ;k dHkh lwfpr Hkh djrs Fks rks euk djus ij Hkh vuqifLFkr gks tkrs ,oa iwNus ij vki crkrs fd eSus vuqefr ys yh gSA bl rjg vki lHkh deZpkfj;ksa dks pdek nsdj dk;Z esa ykijokgh djrs jgs rFkk le; ij dksbZ dk;Z u dj cgkuk ckth djus dh vkidh vknr gSA vki dksbZ ftEesnkjh eglwl ugha djrsA tks vkids dk;Z dykiksa ij lafnX/krk izdV djrk gSA"
In the last paragraph, the President, District Forum, recorded as below:- "vkids mi;qZDr d`R;ksa dk izHkko fuEu oxZ deZpkfj;ks ij cqjk vlj Mkyrk gS] tks vopkj ,oa dnkpkj dh ifjf/k esa vkrk gSA vkidks viuh vknr lq/kkjus gsrq dkQh volj fn;k x;k ,oa psrkouh Hkh nh xbZ] fdarq vkius vkt rd dksbZ vius O;ogkj rFkk Mªkbfoax dk;Z esa visf{kr lq/kkj ugha fd;kA d`i;k bl dk;kZy; ds Kkiu dzekad @ft-Qks-@LFkk@98¼9½ fnukad 28-11-97] 29-04-98] 24-03-98 dzekad 1539@ft-Qks- @LFkk@98¼9½] fn-30-6-98] dzekad 1578@ft-Qks-@LFkk@96¼9½] fnukad 14-7-98 rFkk dzekad 1729@ft-Qks-@LFkk@98 fn- 19-8-98 dk voyksdu djsaA izfrfyi layXu gSA d`i;k Li"V djsa fd D;ksa u vkidh lsok,a lekIr dh tk,A "
The petitioner was alleged to have committed misbehaviour and misconduct and he was asked as to why his services should not be terminated. The petitioner submitted his reply to the President, District Forum. Thereafter, the petitioner was not heard and as a bolt from the blue, the impugned order of termination, couched in innocuous words, was passed which read as below:-
"e/; izns'k jkT; miHkksDrk fookn izfrrks"k.k vk;ksx] Hkksiky ds vkns'k dzekad 301@005186 fnukad 16-01-97 rFkk vkns'k dz0 301@005312@97 ¼18½ fnukad 17-06-97 ds }kjk Jh Hkxokunkl lkgw iq= Jh jkeukFk lkgw dks okgu pkyd ds in ij iw.kZr% vLFkk;h ,oa vkikrh rkSj ij dysDVj }kjk fu/kkZfjr nj ij ftyk miHkksDrk fookn izfrrks"k.k Qksje] nqxZ esa fu;qDr fd;k x;k FkkA Jh Hkxoku nkl lkgw dh lsokvks dh vc vko';drk ugha gS vr% Jh Hkxokunkl lkgw dh lsok;s rRdky izHkko ls lekIr dh tkrh gSA ,d ekg dh uksfVl dh ,ot esa mUgs ,d ekg ds osru dk Hkqxrku ftyk Qksje nqzxZ }kjk fd;k tkosxkA"
According to the said order of termination, which apparently looks simplicitor, it has been stated that the petitioner was appointed as Driver on Collectorate Rate basis and the services of the petitioner are no longer required. By giving a month's salary in lieu of a month's notice, services of the petitioner were terminated with immediate effect.
3. Assailing the said order, the petitioner filed an original application before the State Administrative Tribunal, Bench at Raipur. Upon abolition of the Tribunal, the petition was transferred to this Court.
4. Learned counsel for the petitioner argued in extenso to submit that the impugned order, though in form, appears to be simplicitor in nature, is in the nature of penalty being punitive based on serious allegations of misconduct and satisfaction arrived at with regard to proof of misconduct by the respondent authority which led to issuance of the impugned order. Relying upon the decision of the Supreme Court in the case of Jarnail Singh and Others vs. State of Punjab and others1, Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others 2 and more recent decision in the case of Ratnesh Kumar Choudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others, 3 he would contend that even if the order of termination is couched in innocuous form, this Court has ample jurisdiction to lift the veil and pierce into the real and operative reason for termination. Referring to the various communications placed on record, it was vehemently urged that the President, District Forum had, in fact, issued show cause notice to the petitioner on serious allegations of misconduct and the petitioner was asked to show cause as to why his services should not be terminated. The petitioner submitted his reply and after application of mind on his reply, the President, District Forum reached to a conclusion that the petitioner is guilty of alleged misconduct. This finding was forwarded to the Chairman, State Consumer Disputes Redressal Commission, who passed the order of termination, which means that the allegations of misconduct did not remain a motive, but was translated into foundation and made sole basis for 1 (1986) 3 SCC 277 2 (1999) 3 SCC 60 3 (2015) 15 SCC 151 termination of petitioner's services, though by an innocuous order. Learned counsel for the petitioner stressed upon the fact that the allegations of misconduct levelled on the petitioner by issuing show cause notice, which did not confine to the aspect of mere unsuitability or inefficiency but allegations of misconduct, therefore, all through it was only allegations of misconduct which prevailed with the authority to terminate the services of the petitioner and therefore, a punitive measure cannot be said to be simplicitor. Referring to the specific averments made in the reply, learned counsel for the petitioner would submit that even if the order on the face of it, may be simplicitor, the counter affidavit and the averments made therein and also material on record, it would be an appropriate case to lead to the conclusion that the order of termination is punitive in nature and in such a case, the termination order would be liable to be set aside on the ground of it being violative of Article 311(2) of the Constitution of India.
5. Per contra, learned counsel for the respondent-State would argue that it is not a case where after receipt of the comments of the President, District Forum, the Chairman of the Commission proceeded to issue charge sheet and obtained finding of misconduct and relying upon those findings of misconduct, the petitioner was dismissed from services by an order simplicitor in form. He would submit that even though, at the level of the President, District Forum, under whose direct control, the petitioner was working, there were remarks of unsatisfactory service, a show cause notice was issued and reply obtained and comments forwarded to the Chairman of the Commission and thereafter, no further enquiry was made in the matter much less any specific finding of misconduct was recorded by the competent authority so as to say that such finding of misconduct was recorded on the basis of material forwarded by the President, District Forum, which formed the sole basis for termination of services of the petitioner. He also submits that in such a situation, the allegations would constitute only a motive and not foundation and consequently, the order would only be treated as simplicitor, because the authority without forming any opinion on the alleged misconduct, decided to dispense with the services only on the ground that the petitioner was appointed as temporary and emergency basis and could be terminated at any time by giving a month's notice or a month's salary in lieu thereof. Learned State counsel would rely upon the decision of this Court in the case of Abdul Rashid Qureshi vs. Chhattisgarh State Infrastructure Development Corporation and others (Writ Petition No.874 of 2005, decided on 06-08-2013).
6. Before adverting to the relevant material and pleadings of the parties, it would be useful to refer to some of the decisions of the Hon'ble Supreme Court dealing with an issue as to under what circumstances, the order of termination simplicitor could be held as punitive, applying the principle of motive, foundation theory.
7. In the case of Jarnail Singh (supra), services of some adhoc employees were terminated subsequent to they having been found unfit for regularization on certain allegations of misconduct while regularizing other similarly situated adhoc employees. The development of law in this regard was also minutely examined in the aforesaid decision to find out whether the termination order was founded on the allegations of misconduct or only a motive to dispense with the services of a temporary employee. Having noted the principles laid down in the case of Parshotam Lal Dhingra v. Union of India 4, State of Punjab v. Sukh 4 AIR 1958 SC 36 Raj Bahadur, AIR 1968 SC 1089, State of Bihar v. Shiva Bhikshuk Mishra 5, Nepal Singh v. State of U.P.6 and the Constitution Bench Judgment in the case of Shamsher Singh v. State of Punjab7, followed by the decision in the case of Anoop Jaiswal v. Government of India8, it was held thus:-
32. "The position is now well settled on a conspectuous of the decisions referred to hereinbefore 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 ad-hoc 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 to lift the veil 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 case, will lift the veil and will see whether the order was made on the ground of misconduct inefficiency or not. In the instant case we have already referred to as well as quoted the relevant portions of the averments made on behalf of the State respondent in their several affidavits alleging serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners, which 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 of India, while considering the fitness and suitability of the appellants for the purpose of regularising their services in accordance with the Government Circular made in October, 1980. mus the impugned orders terminating the services of the appellants on the ground that "the posts are no longer required" are made by way of punishment."
The averments made in the counter affidavit could also constitute relevant material to arrive at a decision as to whether the order was simplicitor or punitive was also highlighted in the aforesaid decision, as below:-
33. "It also appears on a consideration of the averments made in paragraphs 7 and 8 of the Additional Affidavit sworn by one of the appellants Swinder Singh on August 8, 1984, which has not been controverted at all by the respondent, that the respondents though terminated the services of the petitioners on the ground that "these posts are no longer required" have retained and regularised the service
5 (1970) 2 SCC 871 6 (1985) 1 SCC 56 7 (1974) 2 SCC 831 8 (1984) 2 SCC 369 of ad- hoc employees mentioned in paragraph 7 as well as ad-hoc Surveyors who were recruited later in the said post of Surveyors to the prejudice of the rights of the appellants, thereby violating the salutary principle of equality and non-arbitrariness and want of discrimination and as enshrined in Articles 14 and 16 of the Constitution of India. It is pertinent to refer here to the decision rendered by this Court in Sughar Singh's case where it had been held that the order of reversion reverting the respondent from his officiating appointment to the post of Platoon Commander to the post of permanent Head Constable while retaining 200 other Head Constables who were junior to him in the officiating higher posts of Platoon Commanders was discriminatory and arbitrary being in contravention of the Articles 14 and 16 of the Constitution."
8. In a later decision in the case of Ravindra Kumar Misra vs. U.P. State Handloom Corpn. Ltd. and another9, the aforesaid principles were again reiterated, though in a different factual premise, where, on certain allegations of misconduct, preliminary enquiry was made but no further development took place and the order of termination simplicitor was issued. That was a case, where appointment was made on temporary basis with a condition that the services were liable to be terminated with one month's notice or with month's salary in lieu of notice on either side. On certain allegations, an employee was placed under suspension, stating that as a result of a preliminary enquiry, it had come to the notice of the management that the employee was responsible for misconduct, dereliction of duty and mismanagement and showing fictitious production of terrycot cloth. Subsequently, the order of suspension was revoked and then an order of termination of services with one month's salary was passed, stating that the services were no longer required. In the said factual backdrop and referring to the earlier decision in the case of Parshotam Lal Dhingra (supra), Champaklal Chimanlal Shah v. Union of India 10, Shamsher Singh (supra) and Regional Manager v. Pawan Kumar Dubey 11, it was observed as under;-
9 1987 (Supp) SCC 739 10 AIR 1964 SC 1854 11 (1976) 3 SCC 334
6. "As we have already observed, though the provisions of Article 311(2) of the Constitution do not apply, the Service Rules which are almost at par make the decisions of this Court relevant in disposing of the present appeal. In several authoritative pronouncements of this Court, the concept of 'motive' and 'foundation' has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operative motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. Since both in regard to a temporary employee or an officiating employee in a higher post such H an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character. In a large democracy as ours, administration is bound to be impersonal and in regard to public officers whether in Government or public Corporations, assessments have got to be in writing for purposes of record. We do not think there is any justification in the contention of the appellant that once such an assessment is recorded, the order of termination made soon thereafter must take the punitive character. "
The principle of law propounded in the aforesaid decision was, as under:
7. "There may be cases where an enquiry is undertaken and prima facie material for serious charges are found; by disclosing the result of such preliminary enquiry, the officer concerned is put under suspension in contemplation of disciplinary action. After such steps have been taken, the employer/appropriate authority decides not to continue the departmental proceedings but makes an order terminating the service, as has been done in this case.
8. Counsel for the respondents pointed that that in the matter of ordering termination of service of a temporary employee, the order follows a review of his working. Unless the termination is ordered because there is no need for the post, in the absence of reasons for termination, the action is open to challenge as arbitrary, particulary when other similarly situated employees are continued in service. When reasons are given, they are bound to disclose adverse features of the employee and disclosure of such features become the ground of challenge of the order on the plea that termination is not innocuous. To meet this position, the distinction between 'motive' and 'foundation' has been adopted by the courts. As long as the adverse feature of the employee remains the motive and does not become transformed as the foundation of the order of termination it is unexceptionable. No straight jacket test can be laid down to distinguish the two and whether 'motive' has become the foundation has to be decided by the court with reference to the facts of a given case. The two are certainly two points of one line-ordinarily apart but when they come together 'motive' does get transformed and merges into foundation.
9. As has been held by a three-Judge Bench in State of U.P. v. Ram C'handra Trivedi, [1977] 1 SCR 462 the position in regard to cases of the present nature is clear and the examination of the decisions of this court shows that there is no real conflict in their ratio decidendi. On facts as established in different cases, courts have applied the known tests and in order that complete justice may be done on the facts found, there have been punishable deviations.
10. We may point out that this Court in a Consitution Bench judgment in the case of State of Orissa & Anr. v. Ram Narayan Dass, [ 1961] 1 SCR 606, indicated:-
"The fact of the holding of an enquiry is not decisive of the question. What is decisive is whether the order in the light of the decisions laid down in Parshotam Lal Dhingra's case."
The conclusion arrived therein was, as below:-
11. "Keeping in view the principles indicated above, it is difficult to accept the claim of the appellant. He was a temporary servant and had no right to the post. It has also not been denied that both under the contract of service as also the Service Rules governing him the employer had the right to terminate his services by giving him one month's notice. The order to which exception is taken is expressly an order of termination in innocuous terms and does not cast any stigma on the appellant nor does it visit him with any evil consequences. It is also not founded on misconduct. In the circumstances, the order is not open to challenge ."
9. In a later decision in the case of Dipti Prakash Banerjee (Supra), the aforesaid principles were again reiterated establishing the motive and foundation theory applied on the facts and circumstances of the case, even when the termination order is simplicitor and couched in innocuous manner. Explaining the distinction between cases, where termination is founded on allegations of misconduct and where it constitute merely motive, the Supreme Court referred to its earlier decisions in the case of Gujrat Steel Tubes Ltd. v. Gujrat Steel Tubes Mazdoor Sabha, 12 State of Punjab vs. Sukhraj Bahadur (supra) and A. G. Benjamin v. Union of India13, as below:-
12 (1980) 2 SCC 593 13 (1967) 1 LLJ 718 (SC)
20. "This Court in that connection referred to the principles laid down by Krishna Iyer,J. in Gujarat Steel Tube vs. Gujarat Steel Tubes Mazdoor Sangh [1980 (2) SCC 593]. As to `foundation', it was said by Krishna Iyer,J. as follows:
".....a termination effected because the master is satisfied of the misconduct and of the desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case, the grounds are recorded in different proceedings from the formal order, does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the inquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non- injurious terminolgy is used."
and as to motive:
"54. On the contrary, even if there is suspicioun of misconduct, the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge."
As to motive one other example is the case of State of Punjab vs. Sukh Raj Bahadur [1968(3) SCR 234] where a charge memo for a regular inquiry was served, reply given and at that stage itself the proceedings were dropped and a simple termination order was issued. It was held, the order of simple termination was not founded on any findings as to misconduct. In that case, this Court referred to A.S.Benjamin vs. Union of India (Civil Appeal No.1341 of 1966 dt. 13.12.1966) (SC) where a charge memo was issued, explanation was received, an inquiry officer was also appointed but before the inquiry could be completed, the proceedings were dropped and a simple order of termination was passed, the reason for dropping the proceedings was that "departmental proceedings will take a much longer time and we are not sure whether after going through all the foundation, we will be able to deal with the accused in the way he deserves'. The termination was upheld.
21. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as `founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
10. The aforesaid principles stated and re-stated time and again by the Supreme Court, were referred to in the recent decision in the case of R. K. Choudhary (supra), applying motive, foundation theory to find out whether the order of termination is punitive or simplicitor in substance.
11. From what has been noticed in the case of Dipti Prakash Banerjee (supra), with reference to two earlier decisions in the case of State of Punjab vs. Sukhraj Bahadur and A. G. Benjamin (supra) as also the decision in the case of Ravindra Kumar Misra (supra), even though, no straight jacket formula can be laid down to have immediate answer to the question whether the order is punitive or simplicitor, what appears to have been developed as a principle of the universal application is that mere levelling of allegation is not sufficient to categorize the order as one founded on allegation of misconduct. The aforesaid three decisions proceeded on facts that in respect of a temporary employee, certain enquiries were initiated. In the case of State of Punjab v. Sukh Raj Bahadur (supra), a charge sheet was issued instituting regular enquiry and reply was obtained and at that stage, proceedings were dropped and simple termination order was issued.
12. In another case, A. G. Benjamin (supra), charge memo was issued, explanation was received, an enquiry officer was also appointed, but before the enquiry could be completed, the proceedings were dropped and a simple order of termination was passed.
13. In the case of Ravindra Kumar Misra (supra), on certain allegations of misconduct, temporary employee was suspended, orders of suspension clearly containing the allegations of misconduct was passed and preliminary enquiry was also held, in which, it was recorded that the employee was responsible for misconduct, dereliction of duty and mismanagement and showing fictitious production of terrycot cloth. But then, the employer without proceeding further towards institution of regular enquiry, proceeded to issue an order of termination simplicitor. In the aforesaid decisions, it was not the allegations of misconduct which was held decisive but more relevant was as to under what stage, decision was taken to discontinue the services of a temporary employee. On principles, the distinction between the motive and foundation has been laid down in the aforesaid case, applying the settled principles. As long as the allegations of misconduct do not translate into the finding of misconduct, it would not constitute foundation but will only remain a motive. Mere motive could be based on complaints or preliminary enquiry or tentative decision even followed by instituting enquiry. Only when the authority competent to terminate the services, records a finding that the employee is guilty of misconduct but instead of instituting formal enquiry, decides to terminate the services, the real operative reason being to punish on the basis of finding of misconduct, it would translate into action founded on the misconduct and not mere motive to terminate a temporary employee or probationer. Keeping in view this distinction in mind, I shall advert to the relevant material on record.
14. It is not in dispute that the petitioner was appointed as a temporary employee and his services could be terminated by giving a month's notice or a month's salary in lieu thereof. This is clear from order of appointment dated 17-06-1997. It is relevant to note that the appointing authority of the petitioner was the Registrar, Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal. It is also not in dispute that the appointing authority of the petitioner did not give any show cause notice to the petitioner much less institution of departmental enquiry against the petitioner.
15. What is borne out from the pleadings and the documents is that while the petitioner remained posted as driver with the President, District Forum, Durg, the then President was not satisfied with the work of the petitioner and he had issued notice to the petitioner on 14-10-1998, not only making allegations of unsatisfactory performance, but also making certain allegations of misconduct which culminated in issuance of show cause notice dated 14-10-1998 referred hereinabove. It is also not in dispute that the authority levelled allegations of misconduct and misbehaviour on the petitioner. Integrity of the petitioner was also doubted. Reply of the petitioner was obtained and thereafter, the President, District Forum also proceeded to send the comments to the State Commission vide its memo dated 24-10-1998, but then it has to be borne in mind that the President, District Forum was not the appointing authority of the petitioner. After levelling certain allegations of misconduct on the petitioner, obtaining his reply and recording his own prima facie opinion, which constituted, at the most, a preliminary enquiry, he forwarded the matter to the Chairman, State Commission. There is, however, material on record to show that the State Commission issued any notice to the petitioner and subjected to enquiry on the finding of misconduct of the petitioner.
16. At this juncture, the emphatic submission of learned counsel for the petitioner needs to be dealt with. Learned counsel for the petitioner vehemently submitted, with specific reference to pleadings of para 4 of the counter affidavit that the decision was taken to terminate the services on the ground that reply of the petitioner was not found satisfactory.
What has been written in para 4 of the return is relevant, and therefore, extracted as below:-
4- "vkosnd }kjk izLrqr Li"Vhdj.k dks vukosnd dzekad 3 }kjk vius Vhi ¼vuqyXud&v@23½ }kjk vukosnd dzekad 2 dh vksj izsf"kr fd;k x;kA bl rjg vkosnd dks dkj.k crkvks uksfVl fn;k tkdj cpko dk ekSdk fn;k x;k gSA rRi'pkr Li"Vhdj.k ls larq"V u gksdj mldh lsok,a dh vko';drk u ikrs gq, vkosnd dh lsok vukosnd dzekad&2 ds vkns'k fnukad 11-09-99 ¼vuqyXud&v@24½ ds vuqlkj rRdky izHkko ls lekIr dh xbZ rFkk ,d ekg dh uksfVl ds ,ot esa ,d ekg dk osru Hkqxrku fd;k x;k tks fd fof/kor gSA"
17. Emphasizing upon the words and construction in the said affidavit, learned counsel for the petitioner fervently urged this Court to hold that this, by itself, proves that the appointing authority of the petitioner had categorically recorded a finding of proof of misconduct on the basis of the report submitted to it by the District Forum, and therefore, termination order is essentially and substantially, founded on misconduct and cannot be said to merely constitute a motive to terminate the services as a simplicitor measure.
Upon close scrutiny, I am not inclined to accept the same. The principle of motive, foundation theory as has been evolved in the decisions of the Supreme Court referred to hereinabove has to be applied on concrete material that the employer had formed an opinion on proof of misconduct on the basis of material collected by it and the material did not constitute motive. The word 'foundation' has to be given rational meaning that there should be something on record to show that the employer had arrived at conclusion of guilt. Whether this conclusion was arrived at in any enquiry or without any enquiry, whether after opportunity of hearing or without giving opportunity of hearing may not be that material, as is the application of mind and conscious decision, though taken on record in files, that the employee is guilty of misconduct.
18. In the considered opinion of this Court, unless there is clinching evidence available on record, mere by use of word "unsatisfied", it cannot be held that the termination order was founded on misconduct and not merely a motive. The distinction between the motive and the foundation is that where the material is placed before the competent authority and that the material is taken into consideration to dispense with the services of a temporary employee, it will only be a case of termination based on motive and not foundation. Where the employer actually applies his mind and records finding on the allegation of misconduct, motive will translate into foundation. This essential requirement of motive translating into foundation is lacking in the present case.
Therefore, I am of the considered opinion that the termination of the petitioner was simplicitor and the allegations of misconduct merely constituted motive and never translated into the foundation to be made basis of termination.
20. In the result, the petition has to be and accordingly dismissed. No orders as to costs.
SD/-
(Manindra Mohan Shrivastava) Judge