Delhi High Court
D.T.C. vs Po, Labour Court No.1 & Ors on 30 August, 2013
Author: A. K. Pathak
Bench: A.K. Pathak
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5556/1999
Decided on 30th August, 2013
D.T.C. ..... Petitioner
Through: Ms. Arati Mahajan Shredha, Adv.
versus
PO, LABOUR COURT NO.1 & ORS ..... Respondents
Through: Mohd. Rashid, Adv.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (ORAL)
1. Workman has died during the pendency of writ petition and is represented through his legal representatives.
2. Workman raised an industrial dispute with the Labour Department, Govt. of NCT of Delhi which was referred to Labour Court-I, Tis Hazari, Delhi for adjudication under Section 10 (I) (C) & 12(5) of the Industrial Disputes Act, 1947 (for short, hereinafter referred to as "the Act") by Secretary (Labour), Delhi Administration, Delhi on 8th August, 1990 in the following terms:-
W.P. (C) 5556/1999 Page 1 of 23
"Whether the termination of services of Sh. Rajender Singh is illegal and/unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"
3. Workman filed statement of claim alleging therein that he was appointed as a Driver on daily wages in the month of April, 1988. Subsequently, he was brought on monthly rated pay with effect from 26 th January, 1989. He was posted at Hari Nagar Depot- I, New Delhi. He performed his duties sincerely and honestly except for the period he remained on medical rest due to burn injuries sustained while on duty. Workman was served with an order dated 28th July, 1989 alleging therein that his services had been terminated under Clause 2(a)(i) of DRTA (Conditions of Appointment and Service) Regulations, 1952 (for short, hereinafter referred to as "the Regulations"). This order did not specify any reason whatsoever as to why his services were terminated. On enquiries made by the workman he came to know that one security guard, namely, Narender Singh, who was posted at Hari Nagar Depot-I, in conspiracy with two other officials lodged a false report that rubber portion of bulb horn was found under the seat of his bus before out-shedding the bus from Hari Nagar Depot on 22nd July, 1989. Narender Singh was inimical to the workman. The real reason for making said false report was that on earlier occasion, W.P. (C) 5556/1999 Page 2 of 23 that is, on 17th June, 1988 while driving the bus no. DEP-9532 the workman had sustained serious burn injuries because the engine of the bus got heated up. Workman was hospitalized but was not paid wages, inasmuch as, no compensation under the Workmen Compensation Act, 1923 (for short, hereinafter referred as "the Compensation Act") was paid. When workman asked the Depot Manager to recommend his case for compensation he obtained the false and frivolous report regarding the pilferage of bulb horn assembly from his subordinates and passed the termination order. Workman alleged that he was victimized for no fault of his. He prayed for his reinstatement in service with full back wages.
4. In the written statement, petitioner denied the allegations levelled in the statement of claim regarding victimization and termination being illegal. It was admitted that workman had been working with the petitioner as a driver on daily wages with effect from 26th April, 1988 and thereafter on monthly rated pay with effect from 26th January, 1989, till he was terminated. It was alleged that workman remained absent from duty for 30 days within a period of 15 months of his service and was given 9 punishments during the said period. It was further stated that workman remained absent for 10 days on medical grounds. It was alleged that on 22nd W.P. (C) 5556/1999 Page 3 of 23 July, 1989 one Security Guard reported that at about 1630 hrs. Bus No. DEP 9532 driven by the workman on route no. 17088 came at the depot gate for out-shedding and in the process of checking the bus two horn assemblies were found beneath the driver‟s seat. These two horn assemblies were covered with a cloth sheet. As regards allegations of non-payment of compensation under the Compensation Act, it was stated that workman was not entitled to the same as per the rules of the Corporation being daily rated employee. It was further stated that workman was on probation and his services have rightly been terminated keeping in mind his past conduct in terms of Clause 9(a)(i) of the Regulations. Termination of the workman was termination simplicitor and as per the regulations. Termination was not a punitive one.
5. It would also be relevant to reproduce the letter of termination Ex. WW1/7 at this stage which reads as under :-
"D.T.C.HARI NAGAR DEPOT-I: NEW DELHI No. HND-I/Dr./89/4518 Dated:- 28.7.89 The services of Sh. Rajinder Singh, S/o Sh. Prahlad Singh, Driver, B.No.17088, pay Token No.54715, are hereby terminated (Conditions of Appointment & Service) Regulations, 1952. A cheque No.343967 dated 27.7.89 for Rs.2552.72 on account I.D.Act, 1947 is attached.W.P. (C) 5556/1999 Page 4 of 23
He is required to deposit all the D.T.C. articles in his possession within 24 hours of the receipt of this memo. Non- deposit of D.T.C. articles by him in accordance with the instructions containing in office order No.21 dated 27.1.1954 will render him liable to pay a penalty of Rs.2/- per day for the days he keeps any of the D.T.C. articles in his possession after the specified period of twenty four hours.
Encl: As above.
Sd 28/7 DEPOT MANAGER Sh.Rajinder Singh, S/o Sh.Prahlad Singh, Driver, B.No.17088, T.No.54715 Address:- WZ-420, Mai Dayal Building, Palam Colony, New Delhi-110045"
6. Workman filed rejoinder whereby denied the allegations contained in the written statement and reiterated the averments made in the statement of claim.
7. Industrial Adjudicator framed following issues on 8th November, 1994:-
"1. Whether the termination of the services of the workman is illegal or unjustified as no reason disclosed while terminating the services u/Sec. 9(a)(i) of the DRTA (Conditions of Appointment & Service) Regulations, 1952?W.P. (C) 5556/1999 Page 5 of 23
2. As per terms of reference."
8. Parties were afforded opportunity to lead evidence. Upon scrutiny of evidence adduced by the parties Industrial Adjudicator has held that order of termination of workman was illegal, unjustified and an unfair labour practice adopted by the petitioner. Accordingly, petitioner was directed to reinstate the respondent with continuity of service and 50% of back wages. For arriving at the conclusion that termination was unjustified and illegal, Industrial Adjudicator has solely placed reliance on the office notings and/or order sheets which led to issuance of termination letter Ex. WW1/7.
9. Relevant it would be to reproduce the office notings at this stage, which reads as under :-
"D.T.C.HARI NAGAR DEPOT-I: NEW DELHI P.U.C. is the report submitted by Sh.Narinder Singh, S/Guard, B.No.884 stating therein that he was on duty from 1400 to 2230 hrs. on 22.7.89 at the outer gate of the depot. At about 1630 hrs. Bus No.DEP-9532 driven by Sh. Rajinder Singh, Driver, B.No.17088 came at depot gate for out-shedding. While checking this bus, the S/Guard Sh.Narinder Singh found that two complete Horn Assembly were kept beneath the driver‟s seat, which was covered by a cloth sheet. On enquiry, the driver Sh.Rajinder Singh not only misbehaved with him but also abused him and threatened him that he will get him terminated. The S/Guard further states that he presumes that these assemblies were being taken out of the depot gate with W.P. (C) 5556/1999 Page 6 of 23 malafide intention. He has also obtained the signatures of V/Examiner Sh. Subha Chand, & Sh. K.L.Verma, Mechanic (Gate Duty), who have endorsed the statement of S/Guard. They have also given the separate statements, which are placed hereunder. The report of the D.O.Sh. Siv Ram, A.T.I., T.No. 18302 who has also endorsed the statement of Sh. Narinder Singh, S/Guard is added for kind perusal and further orders. It is a serious case and stern action is warranted.
Sd A.T.S.25/7/89 D.M. 25/7/89 The driver concerned was appointed as a R/C driver w.e.f. 26.4.88 and brought on monthly rates of pay w.e.f. 26.1.89 and since then he was awarded nine punishments as per his past record attached herewith. At present he is on probation. If agreed to, his services may be straightaway terminated.
Under clause 9(a)(i) of the D.R.T.A. (Conditions of Appointment and Service) Regulations, 1952 but before doing so, it is also essential that one month‟s notice salary along with retrenchment compensation is a must.
However, the pendency under I.D.Act, 1947 [33 (2) (b)] does not apply in this case as I have discussed this issue with the R.M. (A) in my personal capacity and not in official capacity please.
Sd 25/7/89 W.P. (C) 5556/1999 Page 7 of 23 D.M. It has been clarified on phone from RM (A) refer „x‟ above who has said the same as at „x‟, I agree as proposed above. The driver B.No.17088 is hereby terminated with immediate effect under Clause 9 (a) (1) of DRTA (Condition of Appointment & Service) Regulations, 1952.
Sd 27.7.89
10. Industrial Adjudicator has held that though the letter of termination did not assign any reason of termination but office notings clearly indicated that the termination was passed on the basis of preliminary enquiry conducted by ATS and report dated 25th July, 1989 submitted by him. The preliminary enquiry was conducted by ATS behind the back of workman, inasmuch as he relied upon the statements of security guard duly endorsed by Vehicle Examiner Sh. Subha Chand and Sh. K.L. Verma, Mechanic (Gate Duty), in his report. The termination order was passed on the basis of this report without affording an opportunity of hearing to the workman, thus, was punitive in nature and was unsustainable.
11. Learned counsel for the petitioner has vehemently contended that workman was on probation and his services could have been terminated by W.P. (C) 5556/1999 Page 8 of 23 way of discharge simplicitor as per the Regulations, due to his unsatisfactory performance during the probation period. Services of the respondent were terminated on account of his unsatisfactory performance and past conduct and the report of ATS was not the „foundation‟ of termination order. Office notings, on which reliance has been placed by the Industrial Adjudicator, clearly indicate that the workman was not terminated on account of the incident of pilferage of bulb horn and, in fact, was discharged on account of his unsatisfactory performance and past conduct. On coming to know about the incident of pilferage of bulb horn assembly ATS had brought the incident to the notice of Depot Manager based on the complaint of the security guard duly endorsed by Vehicle Examiner and Mechanic (Gate Duty). No preliminary enquiry was ordered by the Depot Manager. On receipt of the said report Depot Manager, without taking note of the above incident, passed order of termination simplicitor on the basis of past conduct of the workman. Termination order was passed under Clause 9(a)(i) of the Regulations. Workman was not to be given any opportunity to participate in the alleged preliminary enquiry since no domestic enquiry was conducted. Only if the department decides to hold a departmental enquiry as per the rules regarding the incident reported only then charge-sheet has to be issued W.P. (C) 5556/1999 Page 9 of 23 and in that eventuality workman is entitled to opportunity to defend himself. The report of ATS may, at best, be „motive‟ but not the foundation of the termination order, inasmuch as, termination order is not punitive and/or stigmatic. Reliance has been placed on Champaklal V/s The Union of India AIR 1964 SC 1854 and Chandra Prakash Shahi V/s. State of U.P. & ORS. AIR 2000 SC 1816. In nutshell, her contention is that the findings returned by the Industrial Adjudicator that the incident of pilferage of horn assemblies was „foundation‟ of the termination order are perverse. Workman was not terminated because of the „misconduct‟ and his services were terminated during the probation period in terms of the Regulations.
12. Per contra, learned counsel for the respondent has vehemently contended that the termination was solely on the misconduct of pilferage of bulb horn assemblies and is punitive in nature. The report submitted by ATS was the „foundation‟ of termination order as such the termination order was stigmatic and was punitive even though the termination order Ex.WW1/7 had been given colour of termination simplicitor. Termination was preceded by an enquiry wherein statements of security guard and other officials were received by ATS and finding of misconduct of a definite nature was arrived at behind the back of the workman and solely on the W.P. (C) 5556/1999 Page 10 of 23 basis thereof termination order was passed, thus, the whole action of the petitioner was violative of principles of natural justice. It has been further contended that no distinction can be made between a temporary servant vis- a-vis a probationer, inasmuch as, the workman was entitled to protection to defend the misconduct alleged against him, thus, his services could not have been terminated arbitrarily and without complying the principles of natural justice. He has placed reliance on Radhey Shyam Gupta V/s U.P. State Agro Industries Corporation Ltd. & And Anr. (1999) 2 SCC 21, V.P. Ahuja V/s State of Punjab & Ors. (2000) 3 SCC 239, R.K. Panjetha V/s Haryana Vidyut Prasaran Nigam Ltd. & Anr. (2002) 10 SCC 590, Jaspal Singh V/s State of Punjab & Ors. (2004) 13 SCC 593 and D.K. Yadav V/s M/s J.M.A. Industries Ltd. JT 1993 (3) SC 167.
13. I have considered the rival contentions of both the parties and perused the records as well as the judgments relied by the parties. The question which needs attention of this Court as to whether the findings returned by the Industrial Adjudicator that the enquiry report of ATS was the „foundation‟ of termination order are perverse in the facts of this case.
14. In Champaklal (supra), Supreme Court has as under :- W.P. (C) 5556/1999 Page 11 of 23
"12. Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused. Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already government does not usually take action of this kind without any reason. Therefore when a preliminary enquiry of this nature is held in the case of a temporary employee or a government servant holding a higher rank temporarily it must not be confused with the regular departmental enquiry (which usually follows such a preliminary enquiry) when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant.
13. The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule (e.g. r. 5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of Art. 311(2). Whether such termination would amount to dismissal or removal within the meaning of Art. 311(2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service".
15. Champaklal (supra) was considered in Radhey Shyam (supra) and it was observed thus:-
"The theory of 'object of the inquiry' was further emphasised by the Constitution Bench in Jagdish Mitter v. Union of India, (1964) I LLJ 418 SC . That was a case of a temporary employee. The discharge from service was by way of an order W.P. (C) 5556/1999 Page 12 of 23 'simpliciter'. But there, an inquiry was held and the termination order was based on it as it stated on its face that it was 'found undesirable' to retain the employee and hence his services were being terminated. The order was held to be punitive on its face and was quashed. Gajendragadkar, J. (as he then was) discussed the earlier cases and held that in every case the purpose of the inquiry was crucial. If the inquiry was held 'only for the purpose of deciding whether the temporary servant should be continued or not', it could not be treated as punitive and that the motive operating in the mind of the authority was not relevant.
But "the form in which the order terminating the service is expressed will not be decisive." It was held that "what the Court will have to examine in each case would be, having regard to the material facts existing upto the time of discharge, is the order of discharge in substance one of dismissal?" Therefore, the 'form' was not of importance but the 'substance' was."
16. In State of U.P. vs. Kaushal Kishore Shukla (1991) 1 SCC 691, it was held that merely because a preliminary enquiry was held against a temporary Government servant, would not be a ground to hold that an order, otherwise innocuous on the face of it, by which the services were terminated, was punitive in nature. In Chandra Prakash (supra), Supreme Court held, thus, "the important principles which are deducible on the concept of „motive‟ and „foundation‟, concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or W.P. (C) 5556/1999 Page 13 of 23 for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations 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‟. „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. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law".
17. In the State of U.P. vs. Ram Chandra Trivedi AIR 1976 SC 2547 respondent was a temporary clerk. Seven years later, he was required to appear in a departmental examination which was held in July, 1961. On 12th July, 1961, an optional typewriting test was held by the Department. In that W.P. (C) 5556/1999 Page 14 of 23 test the Executive Engineer, Investigation and Planning Division, detected Gopal Deo Santiya, a clerk of Bhander Canal Division, attempting to personate and appear for the respondent. He obtained the explanation of both the clerks and reported the matter to the Superintendent Engineer of his Division. Considering the explanations tendered by the clerks to be unsatisfactory, Superintending Engineer brought the matter to the notice of the Chief Engineer, Irrigation Department, Lucknow. The Chief Engineer wrote back to the Superintending Engineer asking him to award suitable punishment to the aforesaid two clerks. The Superintendent Engineer thereafter issued orders terminating the services of both the clerks, which reads, thus, "Shri Ram Chandra Trivedi, temporary routine grade clerk is hereby served with one month‟s notice to the effect that his services shall not be required after one month from the date of receipt of this notice". Respondent Ram Chandra Trivedi challenged the order of termination of his services by instituting a suit averring, inter alia, that the order not being an order of termination of his service simplicitor but being one passed by way of punishment attracted the applicability of Article 311 of the Constitution, which not having been complied with rendered the order void and ineffective in law. After trial, suit was dismissed. Respondent took the W.P. (C) 5556/1999 Page 15 of 23 matter in appeal to the second Additional Civil Judge who affirmed the decree of the trial court. Both the courts found that the impugned order was valid in law as it was a simple order of termination of service and not having been passed by way of punishment, it did not attract the provisions of Article 311 (2) of the Constitution. Respondent preferred a second appeal to the High Court of judicature at Allahbad which was allowed by a learned single judge of that court after perusing the official correspondence preceding the passing of impugned order. Learned Single Judge observed that a close scrutiny of the facts on record showed that the order was passed by way of punishment on the basis of enquiry proceedings and as a result of the recommendation made by the Executive Engineer followed by the direction issued by the Chief Engineer that the respondent should be suitably punished. State of U.P. challenged the order of learned Single Judge before the Supreme Court and after noticing catena of judgments Apex Court held thus:-
"Keeping in view the principles extracted above, the respondent‟s suit could not be decreed in his favour. He was a temporary hand and had no right to the post. It is also not denied that both under the contract of service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month‟s notice. The order to which exception is taken is ex facie W.P. (C) 5556/1999 Page 16 of 23 an order of termination of service simplicitor. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct. In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311 (2) of the Constitution."
18. In Shyam Lal vs. State of U.P, (1954) II LLJ 139 SC it was held that termination of service by compulsory retirement in terms of specific rule regulating the conditions of service does not tantamount to the infliction of punishment and does not attract Article 311 (2) of the Constitution of India.
19. In Parshotam Lal Dhingra vs. Union of India (1958) I LLJ 544 SC it was held thus:-
"It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operative on the mind of the Government is, as Chagia C.J. has said in Shrinivas Ganesh v. Union of India (1957) II LLJ 189 Bom wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract of the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for W.P. (C) 5556/1999 Page 17 of 23 inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."
20. In Gopi Kishore Prasad vs. Union of India (1960) I LLJ 577 SC it was held that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment, but if instead of taking the easy course, the Government chose the more difficult one of holding an enquiry into his alleged misconduct and branded him as a dishonest and incompetent officer it would attract Article 311 (2) of the Constitution. In Rajendra Chandra Banerjee vs. Union of India(1964) 2 SCR 135 the appellant was appointed as a probationer for one year (which was extended from time to time) on condition that his services might be terminated without any notice and cause being assigned during that period and he agreed and joined the service and when later on during the period of his probation, he was called upon to show cause why his services should not be terminated and he was finally informed that the explanation given by him was not satisfactory and his services would stand terminated on a specific W.P. (C) 5556/1999 Page 18 of 23 date, it was held that the termination of his service was not by way of punishment and could not amount to dismissal or removal within the meaning of Article 311. In R.S.Sial vs. State of U.P. and Ors. (1974) I LLJ 513 SC, Supreme Court held thus "even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rules nevertheless if a right exists under the contract or the rules to terminate the services the motive operating on the mind of the Governments is wholly immaterial."
21. The legal position which can be culled out from the above referred judgments is that a probationer has no right to hold the post and his services can be terminated at any stage of probation period on account of general unsuitability for the post in question. A preliminary enquiry can be held to find out if a, prima facie, case was made out to initiate a regular departmental enquiry or not. During such enquiry participation of the workman is not necessary. After holding the preliminary enquiry it is the discretion of the employer to hold or not to hold a regular enquiry for proving the guilt of the employee. The employer can stop the preliminary W.P. (C) 5556/1999 Page 19 of 23 enquiry at that stage and pass a simple order of termination. The facts as gathered or revealed in the preliminary enquiry may be the „motive‟ and not the „foundation‟ since there was no enquiry as to the correctness made. In such an eventuality, order cannot be quashed as being punitive, however, if employer decides to hold an enquiry then employee is entitled to defend himself and no such enquiry can be held behind the back of the employee. If there are allegations of misconduct and enquiry is held to find out the truth about the misconduct and the order of termination is based solely on the basis of that enquiry then the order would be punitive in nature.
22. Reverting back to the facts of this case, a bare reading of the termination letter Ex. WW1/7 makes it clear that it is a case of termination simplicitor in terms of Section 9(a)(i) of the Regulations since workman was on probation. Termination letter is innocuously worded and is not stigmatic. By placing reliance on the internal notings and/or order sheets, Industrial Adjudicator has held that incident of pilferage of bulb horn assembly, which had led to holding of preliminary enquiry by ATS behind the back of the workman, was „foundation‟ of termination order passed by the competent authority. Meaning thereby „misconduct‟ was the foundation of termination and it was not a case of termination simplicitor on the basis of performance W.P. (C) 5556/1999 Page 20 of 23 of the workman. I find the findings returned by the Industrial Adjudicator to be perverse and based on misconstruction of the office notings and order sheets.
23. In the facts of this case, I do not find the incident of pilferage of bulb horn assemblies to be the „foundation‟ of termination order. The noting of ATS makes it clear that he had simply forwarded the report submitted by Sh. Narender Singh, Security Guard along with the statements of Sh. Subha Chand, Vehicle Examiner and Sh. K.L. Varma, Mechanic (Gate Duty) who had signed the report submitted by Sh. Narender Singh. This report, in fact, may have triggered the movement of file up to the Depot Manager but the order passed by him makes it clear that he had only considered the past service record of the workman without adverting to the incident, inasmuch as no decision was taken to hold a departmental enquiry. Thus, it cannot be said that any enquiry was done behind the back of workman. In the preliminary fact finding enquiry there is no requirement of law, for participation of the workman. ATS had simply forwarded the report of the security guard witnessed by other officials along with their statements, since they had signed the report of security guard. Depot Manager has only considered the past record of the workman before passing the termination W.P. (C) 5556/1999 Page 21 of 23 order. Depot Manager has noted that workman was appointed as a Driver with effect from 26th April, 1988 and was brought on monthly rated pay with effect from 26th January, 1989 and since then he received 9 punishments as per his past service record. He was on probation, thus, his services could be dispensed with under Clause 9(a)(i) of the Regulations. Thus, it is clear that termination order has been passed during the continuation of probation period in view of the past service record of the workman and not on the ground of pilferage of bulb horn assemblies. There is no whisper about the pilferage of bulb horn assemblies either in the noting or in the termination order passed by the Depot Manager though the same may have triggered the movement of file and consideration of past record of workman. The entire order sheet passed by the Depot Manager does not indicate that the report submitted by ATS was the „foundation‟ of the termination order, as has been held by the Industrial Adjudicator even though it may be „motive‟. Alleged misconduct cannot be said to be „foundation‟ of the termination order. Industrial Adjudicator has misinterpreted the office notings and/or order sheets for arriving at a conclusion that misconduct was the „foundation‟ of termination order, thus, the same was punitive and stigmatic in nature. W.P. (C) 5556/1999 Page 22 of 23
24. Judgments relied upon by the learned counsel for the respondent are in the context of different facts and are of no help to the respondent. In V.P. Ahuja (supra), in the termination order itself it was stated that he had failed in performance of his duties administratively and technically. In view of this, Supreme Court held that the order was stigmatic in nature and since the services were terminated without holding a regular enquiry and giving opportunity of hearing to him action was illegal. In Panjetha (supra), order of compulsory retirement of the employee was found stigmatic in character. In Jaspal (supra) also, order was found stigmatic and punitive in nature since the services of appellant in the said case were terminated on the charges of rape which fact was mentioned in the termination order.
25. In the light of above discussion, writ petition is allowed and impugned Award is set aside.
A.K. PATHAK, J.
AUGUST 30, 2013 ga W.P. (C) 5556/1999 Page 23 of 23