Allahabad High Court
Smt. Kachanvati Devi vs State Service Tribunal And Ors. on 2 February, 2010
1
Judgment reserved on 4.1.2010
Judgment delivered on_2.2.2010
Writ Petition No.2232 (S/B) of 1982
Smt. Kanchanpati Devi vs. State of UP and others
Hon. Sunil Ambwani, J.
Hon. Dr. Satish Chandra, J.
Heard learned counsel for the parties.
This writ petition filed in the year 1982 was dismissed for want of prosecution several times and each time restoration application was allowed and the writ petition was restored to its original number.
The last order dismissing the writ petition for want of prosecution on 15.5.1999 was set aside on 4.1.2010.
The petitioner was appointed as Assistant Teacher in a Primary School run by Zila Parishad, Gonda. The appointment letter dated 4.11.1966 was issued by the Chairman of the Zila Parishad on 27.9.1971. The petitioner's services were terminated by the Chairman of the Zila Parishad on the ground that her services are no longer required and shall be terminated on the date of receipt of the notice. She was made entitled to one month's salary in lieu of the notice. The Basic Shiksha Parishad was established in the year 1972, and that since the order of termination of petitioner's services was illegal and the Civil Court had stayed the operation of the termination order on 23.11.1971, the petitioner alleges that she would be deemed to have become the employee of the Basic Shiksha Parishad.
An appeal filed by the Zila Parishad against the exparte injunction order passed by the Civil Court on 23.11.1971 was allowed by the Civil and Sessions Judge on 30.5.1972, and the order was vacated. The Civil Suit was transferred to the U.P. Public Services Tribunal. The transferred Suit was numbered as Claim Petition No. 63 T III/79. It was heard and dismissed by the Tribunal on 6.1.1982, giving rise to this writ petition.
The Tribunal heard both the parties and after considering the material on record found that the petitioner was a temporary teacher. She was not confirmed on the post. The Assistant Inspectress of Girls Schools, Gonda Smt. Vidya Saxena made an inspection of the school on 2 10.9.1970 and reported that the petitioner was not looking after the school properly. She was entering into quarrel unnecessarily. She absented herself whenever she liked and that she was not obeying the orders given to her. The reputation of the school was going down and the education of the children was suffering. She made several reports that the petitioner was not working properly and was not suitable to be retained in service. The Chairman of the Zila Parishad also issued a warning to her on 28.12.1970. There were complaints by the Village Pradhan and some other persons about her work and behaviour. Ultimately on 16.6.1971 the Assistant Inspectress of Girl Schools again submitted a report to the President, Zila Parishad on which the petitioner's services were terminated on 27.7.1971.
On the aforesaid materials the Tribunal found that the petitioner's services have been terminated by an innocuous order without any stigma. The record demonstrated that her services were not found suitable and that she was not found fit to be retained in service. There was no enquiry directed against her nor any charge sheet was served and thus the order simplicitor terminating her temporary services did not call for any interference.
The petitioner appeared before the Tribunal and produced her service book containing the entries of the period from 1.2.1974 to 1.2.1978 to demonstrate that she is still working. The Tribunal did not believe her as her services had come to an end on 27.7.71 and that the interim injunction granted by the Civil Court was vacated by the Civil and Sessions Judge on 30.5.1972. The Tribunal found that the entries did not bear the signatures above the rubber stamp and that the petitioner appeared to have managed to get possession the original service book and got certain entries made to suit her convenience.
Learned counsel for the petitioner submits that the petitioner was dismissed on the ground of misconduct after the inspection was made by the Assistant Inspectress of Girls School. The allegations made against her should be treated as the foundation for termination of her services. The petitioner has relied upon the judgments in Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and another 1999 SCC (L&S) 439 and a judgment in Kailash Bharti vs. 3 State of UP and others 2005 (23) LCD 436 in submitting that an order of termination based on misconduct is violative of principles of natural justice. The petitioner has also relied upon judgments in Paras Nath Pandey vs. Director, North Central Zone, Cultural Centre, Allahabad 2009 (1) LBESR 337 (All) and Smt. Tasneem Fatma vs. State of UP and others 2009 (1) LBESR 726 (All) .
In Smt. Tasneem Fatma (supra) this Court, after considering all the cases beginning from Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 upto Abhijit gupta v. S.N.B. National Centre, Basic Sciences & ors, AIR 2006 SC 3471, summed up the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not. Para57 of the judgment is quoted: "57. 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 simplicitor prima facie is not a punishment and carries no evil consequences.
(c) Where termination simplicitor 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 does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness 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 4 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) Whether the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even through 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 5 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 nonpunitive.
(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 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 6 would not be punitive."
In the present case the order terminating the petitioner's temporary services is an order simplicitor, which is not a punishment and carries no civil consequences. The Tribunal went behind the order to find out that the motive of the employer was not to punish the petitioner. The employer considered the reports of the Assistant Inspectress of Schools and the complaints made against the petitioner. Instead of directing an enquiry into her conduct the employer thought it proper to terminate her temporary services. The acts and omissions committed by the petitioner were not treated to be misconduct proved against her to become the foundation of the order of termination. The petitioner was not found suitable and her temporary services were terminated. The order therefore cannot be said to be punitive inviting principles of natural justice or attracting Articles 14 and 16 of the Constitution of India.
We do not find any error in the judgment of the Tribunal. The writ petition is dismissed.
Dt.2.02.2010 RKP/