Madhya Pradesh High Court
Thakur Prasad vs Union Of India Thru.Ministry Of Defence on 29 November, 2017
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Writ Petition No.861/2017
Indore, dt. 29/11/2017
Mr. Amit Raj, learned counsel for the petitioner.
Ms. Ishita Agrawal, learned counsel for the respondent
No.3.
The petitioner before this Court has filed present petition being aggrieved by order dated 18/08/2015 passed by Deputy Inspector General, STC, Border Security Force, by which services of the petitioner have been put to an end.
02- The petitioner, as stated in the writ petition, was appointed as Constable on 10/05/2017 and has joined the armed forces of Union on 04/06/2014. He applied for leave on 17/06/2014 for the period w.e.f. 18/06/2014 to 20/06/2014 which was duly granted.
As the petitioner was suffering from serious lever infection, he has informed the department about his illness along with medical papers and also requested the employer to extend his leave.
03- A show cause notice dated 10/07/2015 was issued while the petitioner was still in hospital. On 18/08/2015, the services of the petitioner have been put to an end. He submitted a representation to the employer for taking him back in service, however, in spite of his repeated representations, he was not taken back in service on account of the impugned order Annex.-
P/1. The petitioner has prayed for reinstatement in service with all consequential benefits.
-2-04- A reply has been filed in the matter and the respondents have admitted that that leave was granted to the petitioner and as he overstayed after the leave period, a show cause notice was issued under Rule 22 of the Border Security Force Rules, 1969 and as no reply was received, a termination order was passed as prescribed under Rule 28A of the Border Security Force Rules, 1969.
05- The respondents have filed a document which is at page No.15 i.e. show cause notice dated 10/07/2015 and they have stated in the show cause notice that it is inexpedient or impracticable to hold a Departmental Enquiry against the petitioner, meaning thereby, after issuing a show cause notice the respondents have terminated the services of the petitioner without taking into account his illness.
06- This Court has carefully gone through the impugned order, writ petition as well as reply filed by the respondent. The documents filed by the petitioner are in respect of his treatment from Mahatma Gandhi Medical College and Maharaja Yeshwantrao Hospital of the State of Madhya Pradesh, which is a government hospital. The documents prima-facie establishes that the petitioner was critically ill and was undergone treatment and even a certificate was issued by Medical Officer which is at page No.22 certifying his illness from time to time.
07- The petitioner did approach for extension of his leave on -3- account of his illness, however, instead of granting leave, the services of the petitioner have been put to an end that too without holding any Departmental Enquiry as prescribed under the Border Security Forces Act, 1968 and Border Security Forces Rules, 1969.
08- It is true that Rule 22 empowers the competent authority to hold a Departmental Enquiry, however, the satisfaction recorded by the competent authority has to be genuine satisfaction, merely because they want to get rid of a person, they cannot dispense with the Departmental Enquiry which is necessary as it was necessary in the present case in order to find out whether the petitioner was genuinely suffering from lever infection or not.
09- A similar matter came up before this Court in the case of Kaushlendra Singh Jatav Vs. Union of India & Ors. reported in 2017(1) MPLJ 326 wherein the learned Single Judge was again dealing with a similar type of termination which was done without holding a Departmental Enquiry. Paragraphs No.7 to 19 of the aforesaid judgment reads as under:-
"7. Learned counsel for the petitioner has drawn attention of this Court to the provisions contained in Rule 20 of the 1969 Rules which provides for termination of service for misconduct.
8. Rule 20(1), 22, 23 and 24 of the 1969 Rules provides as under:
"20. Termination of service for misconduct. -- (1) Where in the opinion of the Director-General a person subject to the Act has conducted himself in such manner, whether or not such conduct amounts to an offence, as would render his retention in service undesirable and his trial by Security -4- Force Court inexpedient, the Director-General may inform the person concerned accordingly."
22. Imposition of penalty. - (1) After going through the allegations against the person intended to be dismissed or removed, his defence, and the proceedings of enquiry if any, the Director-General shall, if the case has been initiated by the Central Government, and, may, in other cases, make his recommendation to the Central Government and that Government may dismiss or remove such a person.
(2) If the Central Government considers that the allegations are proved but dismissal or removal would be too severe a punishment, it may order:
(i) the retirement of the officer; or
(ii) imposition of the penalty of forfeiture of service for
purposes of promotion or seniority; or
(iii) may order the withholding of increments or any other punishment which would be sufficient to meet the ends of justice.
(3) The Director-General, an Inspector-General or a Deputy Inspector-General, before dismissing or removing from the service a person subject to the Act shall comply, as far as applicable, with the provisions of rules. Provided that a Deputy Inspector-General shall not dismiss or remove a Subordinate Officer of the rank of a Subedar (Inspector)
23. Dismissal or removal by Central Government. -- Where the Central Government is satisfied, for reasons to be recorded in writing, that--
I. it is not reasonably practicable to follow the procedure laid down in the said rules, or II. it is not expedient, in the interests of the security of the State, to follow such procedure, it may order the dismissal, or removal from the Force of a person subject to the Act without following the procedure laid down in rules 20 and 21.
"24. Retirement of subordinate officers and enrolled persons. -- "A subordinate officer or an enrolled person shall on the fulfilment of the terms and conditions of service under which he was appointed or enrolled be eligible to retire."-5-
Thus, a complete procedure has been prescribed wherein the Director-General is required to furnish the particulars of allegations and the report of investigation including the statements of witnesses, if any recorded and copies of documents, if any intended to be used against the delinquent officer in cases where allegations have been investigated. Rule 20(4) provides that if it would not be in public interest to disclose the evidence or the documents, it shall be lawful for the Director-General to withhold copies of such evidence or documents from the person concerned. In the present case, provisions of Rule 20(4) are not applicable.
9. The impugned order has been passed invoking authority under Rule 22(1) of the 1969 Rules which provides as under:
"22. Imposition of penalty. -- (1) After going through the allegations against the person intended to be dismissed or removed, his defence, and the proceedings of enquiry if any, the Director-General shall, if the case has been initiated by the Central Government, and, may in other cases, make his recommendation to the Central Government and that Government may dismiss or remove such a person."
10. Learned counsel for the petitioner has placed reliance on the order of this Court dated 16-9-2014 passed in W.P. No. 994/2009, (Usman Ali vs. Union of India and Ors.) wherein the delinquent officer had overstayed his leave, and therefore, he was dismissed from service. In this decision, reliance has been placed on the judgment of Supreme Court in the case of Dr. Ramesh Chandra Tyagi vs. Union of India and others, as reported in (1994) 2 SCC 416 in which the Supreme Court observed as under:--
"We are pained to observe that entire proceedings do not leave very happy and satisfactory impression. It was vehemently argued that there was no procedural irregularity. But that is writ large on the face of it. No charge-sheet was served on the appellant. The Enquiry Officer himself stated that the notices sent were returned with endorsement "left without adders" and on other occasion, "on repeated visits people in the house that he has gone out and they do not disclose where he has gone. Therefore, it is being returned". May be that the appellant was avoiding it but avoidance does not mean that it gave a right to Enquiry Officer to proceed ex-parte unless it was conclusively established that he deliberately and knowingly did not accept it. The endorsement on the envelope that it was refused, was not even proved by examining the postman or any other material to show that it was refusal -6- by the appellant who denied on oath such a refusal. No effort was made to serve in any other manner known in law".
11. Similarly, reliance has been placed on the judgment of this Court in the case of S.P. Tiwari vs. Union of India and Ors., 2006 (2) M.P.L.J. 218 : 2007 (1) JLJ 333 wherein the order of dismissal from service and order of appellate authority were quashed and set aside. Relying on the judgment of the Supreme Court in the case of Shri Bhagwan Lal Arya vs. Commissioner of Police Delhi and Ors., as reported in (2004) 4 SCC 560, it was ordered that period during which the delinquent remained absent from duty and the period calculated up to the date on which he reported back on duty pursuant to the judgment of the Apex Court shall not be counted as a period spent on duty.
12. Learned counsel for the petitioner has also placed reliance on the judgment of this Court in case of Devi Prasad Tekam vs. General Manager and Anr., as reported in 2014 (2) M.P.L.J. 336 wherein it has been held that termination of service for unauthorized absence of the petitioner from duty during which he was charged of criminal offence was passed without conducting departmental enquiry and set aside the same and the petitioner was ordered to be reinstated but without backwages or salary for the period of his absence.
13. On the other hand, learned counsel for the respondents has placed reliance on the judgment of the Supreme Court in the case of Union of India and others vs. Ram Phal, as reported in (1996) 7 SCC 546 wherein show-cause notice was issued to the delinquent officer, but the delinquent had not replied to the notice, and therefore, the Supreme Court held that issuance of show-cause notice satisfied the requirement of Rule 20(1), (2), (3) and (6), and therefore, it was not necessary to appoint an enquiry officer to conduct an enquiry under Rule 20(1) before passing the dismissal order. Law has been laid down holding that an enquiry by the Security Force Court in terms of section 11(2) consequent upon continued absence from duty without leave does not unnecessarily makes holding an enquiry as a condition precedent before passing of the order of dismissal.
14. Section 11 of the Border Security Force Act, 1968 provides for dismissal, removal or reduction by the Director-General and by other officers. Similarly, section 19 provides that any person who commits offence of overstaying the leave granted to him without sufficient cause shall on conviction by a Security Force Court be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.
15. Facts of the present case are slightly different inasmuch as -7- petitioner was served with a show-cause notice dated 31-10-2003 as contained in Annexure P-6. Petitioner had submitted reply to said show-cause notice as contained in Annexure P-7 and prayed to sanction his leave and continue him in service. In this reply, he had not suppressed the fact of his condition due to filing of criminal case on account of death of his wife. It is also true that petitioner has been acquitted of the charges on account of failure of the prosecution to establish the charges against the petitioner. Copy of such order of acquittal as passed by the Fourth Additional Sessions Judge, Bhind in Sessions Case No. 177/2004 is also on record as Annexure P-5. Respondents in their return have specifically averred that petitioner had not requested for extension of his leave in this application. It is admitted that his application for grant of leave supported by medical certificates was received by respondent No. 4 for extension/sanction of leave due to his illness till 3-7-2003. From all these facts that petitioner had sent medical certificates seeking leave, he was involved in a criminal case from which he has been given a clean acquittal and also the fact that no enquiry was conducted before passing the impugned order, Annexure P-l it is apparent that ratio of law laid down in the case of Ram Phal (supra) is distinguishable under the facts and circumstances of the case. In fact, the petitioner's case is squarely covered by the decision of this Court in the case of Usman Ali (supra).
16. In the case of Usman Ali (supra) this Court has clearly held that it is established that there was no material to prove the guilt of die petitioner in absence of an enquiry being conducted in accordance with the Rules. Even the appellate authority has passed a cryptic non-speaking order devoid of any reasons. In this regard, law as laid down in the case of Kranti Associates Private Limited vs. Masood Ahmed Khan, (2010) 9 SCC 496, is important wherein the Apex Court has held as under:--
"(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding -8- extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior Courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the Judges and authorities who deliver them.
All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the Judges and decision- makers less prone to errors but also makes them subject to broader scrutiny.
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence.
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process ".
17. In addition, in the case of Ram Chander vs. Union of India and others, as reported in (1986) 3 SCC 103, the Apex Court -9- emphasized the need for application of mind and passing of reasoned order by the appellate authority. Same view is followed by M.P. High Court in the case of Mohammad Idris vs. Registrar General, M.P. High Court, Jabalpur and another, as reported in 2005 (2) M.P.L.J. 51. Recently the Apex Court in the case of Chairman, Life Insurance Corporation of India and others vs. A. Masilamani, as reported in 2014 (3) M.P.L.J. (S.C.) 652 : (2013) 6 SCC 530 has again taken the same view in. Thus, the appellate order is cryptic and liable to be set aside.
18. So far as the objection of the respondents regarding availability of revisional remedy is concerned, suffice it to say that the violation of principles of natural justice is established. In such cases, it is not compulsory to relegate the petitioner to avail the alternative remedy. Apart from this, the petition was admitted years ago and in the meantime limitation for alternative remedy is over. This Court by following the decision in the case of Hirday Narain vs. Income Tax Officer, Bareilly, AIR 1971 SC 33 opined in Chambal G.S.P. Samiti vs. State of M.P., 1995 M.P.L.J. 969 that if the petition is entertained and during the pendency of petition, remedy for seeking alternative remedy expires, then the petition should be heard on merits and parties should not be relegated to avail the remedy under the statute. Thus, this objection stands overruled.
19. In the light of aforesaid discussion, the punishment order Annexure P/1 and the order of the appellate authority Annexure P/2 are set aside. Liberty is reserved to the respondents to serve the charge sheet to the petitioner and conduct it further from that stage in accordance with law. Petitioner be reinstated within 30 days, however, he shall not be entitled to any salary for the intervening period. After further enquiry, the respondents may pass order in accordance with law which must also deal with the intervening period."
10- The learned Single Judge has taken into account the Rule 20 and 24 of the Border Security Force Rules, 1969 as well as various judgments delivered on the subject and has arrived at a conclusion that a Departmental Enquiry was necessary in the facts and circumstances of the case.
11- A similar view was taken by this Court in the case of S. P. Tiwari Vs. Union of India reported in 2007(1) JLJ 333.
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Paragraphs No.12 to 15 of the aforesaid judgment reads as under:-
"12. This fact has not been disputed in the return, rather it has been admitted that the petitioner did submit the certificate issued by the Sarpanch in regard to the collapse of his house. Similarly this fact has also not been disputed that the petitioner submitted the medical certificate of his mother. The petitioner has filed those certificates in this petition also as Annexure P/4 and P/5 respectively. The respondents have not given any credence to these certificates simply on the ground that the certificate of the Sarpanch has not been attested by any Government servant like BDO, SDO, Tahsildar etc. Similarly, the medical certificate of the mother was discarded on the ground that it was of a private clinic and was not attested by any District Chief Medical Officer/Government Servant. The view of this Court is that this appears to be no ground to disbelieve the hallmark of these two documents. Learned Counsel for the respondents has not pointed any statutory rule or any order of the respondents that if such a certificate is issued by Sarpanch of the Gram Panchayat it is to be attested by the Government Officer like BDO, SDO etc. The second reason is that if the inquiry officer was of the view that the certificate is doubtful then he should have given an opportunity to the petitioner to produce the certificate by attesting it from the Government Officer. So far as the authenticity of medical certificate about which a big question mark has been put by the respondents, is concerned, suffice it to say that it is the choice of a person to get him/her examined and treated at the clinic and hospital of his/her own choice. It is not necessary that he/she should be treated only in the Govt, hospital, then only it can be ascertained that he/she is ill. In the present social system it is well known that the patient is not being cared in the Government hospital and even a class iv employee or the persons like Coolie they take the medical treatment from private clinic. Apart from this, as I have held hereinabove that the enquiry officer should have asked the petitioner to furnish the medical certificate attested by Government Servant. There is nothing on the record in order to show that any efforts were made by the respondents in order to hold that the house of the petitioner was not collapsed or his mother was not ill. In absence of any document to the contrary, disbelieving these 'two documents on the abovesaid grounds appears to be arbitrary and the arbitrary action cannot be upheld and affirmed before the law Court. In the case of Shri Bhagwan Lal Arya (supra) the Apex Court held that if a delinquent remained absent for more than two months, and the punishment order dismissing him from service was found to be shockingly
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disproportionate by the Supreme Court. If the ratio decidendi of the decision of Shri Bhagwan Lal (supra) is tested on the touchstone of the present factual scenario, I am of the view that the case in hand is on better footing for the simple reason that in the present case the delinquent remained absent for 33 days while in the case of Shri Bhagwan Lal Arya (supra) the delinquent remained absent for more than two months.
13. It has been vehemently argued by Learned Counsel for the respondents by inviting my attention to the averments made in paras 3 and 22 of the return and has submitted that the past record of the petitioner is not shining, on the other hand it is blackish since he was punished for four occasions. It be seen that this was not the charge against the petitioner and no opportunity was provided to him explaining about those punishments. Though there is averment in that regard in the return but no order has been placed on record. The view of this Court is that if a specific charge in that regard would have been framed an opportunity would have been provided to the petitioner to explain about those punishments. In this view of the matter, since that was not the charge, therefore, by considering the case of the petitioner in that regard runs contrary to the dictum Audi alteram partem and therefore this cannot be said to be a ground to hold that the impugned punishment of dismissal is not shockingly disproportionate.
14. Since I have already held hereinabove that on account of the act of God as the house of the petitioner collapsed due to heavy rains, he rushed to his home place and therefore the punishment order of dismissal, according to me, from all the angles appears to be shockingly disproportionate.
15. Ex consequent the impugned order of dismissal from service of petitioner Annexure P/3 dated 25-9-1999 which has been affirmed by the Appellate Authority/Annexure P/6 dated 25-9-2003 both are hereby quashed and set aside. The Apex Court in the case of Shri Bhagwan Lal Arya (supra) after setting aside the order of removal imposed the punishment that the period during which the delinquent remained absent from duty and the period calculated up to the date on which he reported back on duty pursuant to the judgment of the Apex Court shall not be counted as a period spent on duty. By accepting the same analogy the petitioner is hereby punished by treating the period he remained absent from duty as well as the period till he submit his joining report in pursuant to the order which I am passing today that period shall not be counted as a period spent on duty. Let necessary orders be issued by the respondents taking back the petitioner in service. The petitioner shall not be entitled for any back wages."
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12- In the case of Rahul Tripathi Vs. Rajeev Gandhi Shiksha Mission, Bhopal and Others reported in 2001 (3) MPLJ 616, a stigmatic termination order was quashed as no Departmental Enquiry was held while passing the stigmatic order. It was again a case of termination simpliciter. This Court in the aforesaid case in paragraphs No.9 to 11 has held as under:-
"9. Before I advert to the rival contentions raised at the Bar, I may refer to the case, of Samsher Singh Vs. State of Punjab, MR 1974 SC 423, wherein a seven Judges Bench of the Apex Court made clear distinction between the term 'motive' and 'foundation' and came to hold that the form of the order is not conclusive and innocously worded order can be passed on a foundation of grave charges. In the case of State of U.P. Vs. Ramchandra Trivedi AIR 1976 SC 2547, it was held that the motive in passing an order of termination is not a relevant factor. What is determinative is the foundation on which it is based. It has been held that it is foundation which makes the order punitive in the nature. Recently in the case of Dipti Prakash Banerjee Vs. Salvendra Nath Bose National Centre for Basic Sciences, Calcutta and others AIR 1999 SC 983, two Judges Bench of the Apex Court came to hold as under :
"The above decision is, in our view, clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its Annexures. Obviously such a document could be asked for or called for by any future employer of the probationer. In such case, the order of termination would stand vitiated on the ground that no regular inquiry was conducted."
At this juncture, I may profitably refer to another decision rendered in the case of Radheshyam Gupta Vs. U.P. Industries Agro (1999) 2 SCC 21, wherein it has been held as under:--
"33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out
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any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct oil the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J., in Gujrat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.
34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct or a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not
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cases, where the employer feels that there is mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases."
Recently, in the case of Chandra Prakash Shahi Vs. State of U.P. and others (2000) 5 SCC 152, the Apex Court after referring to all the decisions in the field came to hold as under:--
"28. 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 for confirmation, an inquiry is held and it is on the basis of that inquiry 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 inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of 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".
29. "Motive" is the moving power which implies 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 lo lake this decision ? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry."
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10. The present factual matrix is to be tested on the aforesaid enunciation of law. To find out whether the order of termination is a termination simpliciter or punitive in nature it is apposite lo refer to the order contained Annexure P-18. The relevant portion of the same reads as under :--
^^Jh jkgqy f=ikBh vkRet Jh ch-ds- f=ikBh dks fodkl [k.M cYnsox<+ esa fodkl [k.M lzksr dsUnz leUo;d ds :i esa jktho xka/kh izkFkfed f'k{kk fe'ku ds varxZr ,d o"kZ dh lafonk fu;qfDr vkns'k Øekad Mh-ih-bZ-ih-@fu;q-@95@22@6 fnukad 21@8@95 } kjk nh xbZ Fkh] ftldh vof/k fu;ekuqlkj fnukad 20@8@96 dks gks xbZ FkhA bl vof/k dh lekfIr ds mijkar dk;kZy;hu vkns'k Øekad 839] fnukad 6@9@96 }kjk Jh f=ikBh dks lafonk fu;qfDr dh 'krksZa ij gh iqu% vkxkeh vkns'k rd inLFk fd;k x;k Fkk fdUrq Jh f=ikBh ds fo:) xaHkhj foÙkh; vfu;ferrkvksa ,oa ofj"B dk;kZy;ksa ds vkns'kksa dh vogsyuk dh f'kdk;rsa izkIr gqbZA f'kdk;rksa ds lEcU/k esa bl dk;kZy; ds i= Øekad 710 fnukad 25@11@97] Øekad 858@1] fnuakd 23@12@97] Ø- 983@1] fnuakd 21@1@98] Øekad 1120] fnukad 18@11@98] Øekad 1156 fnukad 2@12@98 }kjk Li"Vhdj.k pkgk x;k fdUrq Jh f=ikBh }kjk Li"Vhdj.k ,oa mlesa mYysf[kr vkjksiksa dk dksbZ lek/kkudkjd mÙkj izLrqr ugha fd;k x;kA fodkl [k.M f'k{kk vf/kdkjh cYnsox<+ }kjk Hkh fodkl [k.M lzksr dsUnz oYnsox<+ esa Jh f=ikBh }kjk foÙkh; vfu;ferrk fd, tkus ,oa vius drZO;ksa dk fuoZgu xaHkhjrk ls u djus lEcU/kh izfrosnu izLrqr fd;k gS] ftlls cYnsox<+ fodkl [k.M esa fe'ku dk;Z vR;ar izHkkfor gqvk gSA vr% mijksDr dkj.ksa dks n`f"Vxr j[krs gq, Jh f=ikBh dks rRdky izHkko ls fodkl [k.M lzksr dsUnz leUo;d cYnsox<+ in ls i`Fkd fd;k tkrk gSA bUgs uksfVl u fn, tkus ds dkj.k fu;ekuqlkj ,d ekg dk osru ns; gksxkA ¼dysDVj ,oa ftyk fe'ku lapkyd }kjk vksnf'kr½** On a bare glance at the aforesaid order it becomes graphically clear that the petitioner's appointment was extended from time to time but during his continuance serious allegations with regard to financial irregularities were received. The order also reflects that the petitioner was asked to show-cause in number of correspondences but the petitioner could not explain the charges, levelled against him. It has also been mentioned in the order as the petitioner has committed financial irregularities and has not performed his duties with sincerity the work of the Mission has been affected and accordingly he has been removed. At this juncture, it is worthwhile to refer to the counter affidavit wherein it has been also mentioned that against the petitioner there were serious financial irregularities and he was asked to show cause but his reply was not found satisfactory. The return filed by the respondent No.3 also reflects the same. On a scrutiny of the entire factual scenario, there remains no scintilla of doubt that the order of termination passed against the petitioner is stigmatic and cannot be regarded as a termination simpliciter. The allegations
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incorporated in the order clearly establish that stigma has been cast and it will affect the future prospects of the petitioner. Accordingly, the order contained in Annexure P-18 deserves to be quashed and accordingly, I so do. Needless to emphasise the petitioner shall reap all the consequential benefits.
11. Resultantly, the writ petition is allowed without any order as to costs."
13- The order impugned in the present case is also a stigmatic order and it has been passed without holding any Departmental Enquiry. It is true that Rule 22 empowers a competent disciplinary authority to dispense with a Departmental Enquiry but he has to satisfy himself before passing such an order.
14- In the present case, the respondents could have very well held that Departmental Enquiry as there was a categorical denial on the part of the petitioner about overstay and he was having reasons to explain about his overstay which was on account of illness as stated by him.
15- In the case of Madhu Sudan Gupta Vs. State of Madhya Pradesh & Ors. reported in 1991 MPLSR 220, a similar order was quashed by this Court.
16- In the considered opinion of this Court, the impugned order, which has been passed in violation of principles of natural justice and fair play, deserves to be set aside specially in light of the judgment delivered in the case of Kaushlendra Singh Jatav (supra) and is accordingly set aside.
17- The respondents are directed to reinstate the petitioner within a period of 30 days in service, however, a liberty is granted
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to the respondent to issue a proper charge sheet to the petitioner and to conduct an enquiry, if they so desire and the issue of grant of back wages and regularization of intervening period shall be dealt with by competent disciplinary authority after conclusion of the enquiry. In case it is held by the disciplinary authority that further enquiry is required in the matter and the petitioner is reinstated back in service, the petitioner will not be entitled for back wages, however, he shall be entitled for all consequential benefits except back wages.
With the aforesaid, writ petition stands allowed.
Certified Copy as per rules.
(S. C. SHARMA) JUDGE Tej Tej Prakash Vyas 2017.12.01 11:31:39 -08'00'