Central Administrative Tribunal - Delhi
Naveen vs Gnctd on 22 July, 2025
1
OA No. 3274/2022
Item No.23/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3274/2022
Reserved on: 11.07.2025.
Pronounced on: 22.07.2025.
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Naveen (Ex. Warder-2063)
S/o Sh. Bijender
R/o V&PO: Nangal Kalan, Distt: Sonepat,
Haryana-131023.
Group: - 'C'
Aged: - 30 years ... Applicant
(By Advocate: Mr. Sourabh Ahuja)
Versus
1. GNCT of Delhi
Through its Chief Secretary
Delhi Secretariat,
I. P. Estate, New Delhi-2
2. Principal Secretary (Home)
Home (General) Department
GNCT of Delhi
5th Level, C-Wing, Delhi Secretariat,
New Delhi-2
3. Director General (Prison)
Prisons Headquarters
Near Lajwanti Garden Chowk,
Janakpuri, New Delhi.
4. Secretary (Home)
Home (General) Department
GNCT of Delhi,
5th Level, C-Wing, Delhi Secretariat,
New Delhi-2. ... Respondents
(By Advocate: Mr. Amit Anand)
2
OA No. 3274/2022
Item No.23/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A): -
By way of the present O.A. filed u/s 19 of the Administrative Tribunals Act, 1985, the applicant, in Para 8 of the OA, has prayed for the following reliefs: -
"(a) Call for the service record of the applicant. And
(b) Quash and set aside the order dated 14.10.2021 and appellate order dated 23.09.2022, whereby the applicant was terminated from service during probation on the basis of alleged misconduct and that to without affording reasonable opportunity (without holding a regular departmental inquiry against the applicant) as enshrined under Article 311 (2) of The Constitution of India. And
(c) Reinstate the applicant back in service with all consequential benefits viz. back-wages, seniority, promotion etc. And
(d) Award cost in favour of the Applicant and against the respondents. And/or
(e) Pass any other or future order, which this Hon'ble Tribunal may deem fit, just equitable in the facts and circumstances of the case."
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application.
FACTS OF THE CASE
3. The applicant was appointed as a Warder in the office of the respondents and joined duties on 12.03.2020. In June 2021, he was deployed at Central Jail No. 10, Rohini Jail, Delhi and while working as such, he was implicated in FIR No. 425/2021 dated 03.08.2021, registered under Section 376 IPC at Police Station Shahbad Dairy, Delhi. He was arrested and remained in judicial custody from 19.08.2021 to 27.08.2021. Consequently, the applicant was placed under suspension with effect from 19.08.2021, vide order dated 06.09.2021.
3 OA No. 3274/2022Item No.23/C-II 3.1 Subsequently, the respondents issued a show-cause notice to the applicant, alleging that he had failed to maintain absolute integrity and had brought disrepute to his duties. He was called upon to explain why appropriate administrative or punitive action should not be taken against him under the CCS (Temporary Service) Rules, 1965 or any other relevant rules. The applicant submitted his reply dated 13.09.2021 (Annexure-A/7) in response to the said show-cause notice. Thereafter, the applicant's services were terminated vide order dated 14.10.2021, solely on the grounds of the alleged misconduct.
3.2 Aggrieved by the aforesaid termination, the applicant submitted a statutory appeal dated 29.10.2021 (Annexure-A/8). In his appeal, the applicant specifically contended that he had been terminated on the grounds of alleged misconduct, and that too without holding any regular departmental inquiry. However, the appeal was rejected by the respondents vide a non-speaking and cryptic order dated 23.09.2022 (Annexure-A/2). Hence, this Original Application.
CONTENTIONS OF THE APPLICANT
4. Learned counsel for the applicant contended that the impugned action of the respondents against the applicant is illegal, arbitrary, and whimsical on the following grounds:-
(i) The impugned action violates Articles 14, 16, and 21 of the Constitution of India;
(ii) The applicant was terminated from service vide order dated 14.10.2021 on the grounds of alleged misconduct. In essence, the basis of the termination was the registration of FIR No. 425/2021, wherein it was alleged that the applicant committed the offence of rape;
(iii) The termination was effected solely on the ground of alleged misconduct, without conducting any regular departmental 4 OA No. 3274/2022 Item No.23/C-II inquiry. Such action is in clear violation of Article 311 (2) of the Constitution of India;
(iv) The respondents failed to appreciate that it is a settled proposition of law that Rule 5 (1) of the CCS (Temporary Service) Rules, 1965 cannot be invoked as a shortcut to dismiss a person on the basis of misconduct. If such action is taken, the termination becomes punitive in nature, thereby entitling even a probationer to the protection afforded under Article 311 (2) of the Constitution of India;
(v) The impugned orders passed against the applicant are punitive and stigmatic in nature and are, therefore, liable to be quashed and set aside. Since the foundation of the termination during the probation period is grave misconduct, the applicant ought to have been given an opportunity to defend himself, in accordance with the provisions of Article 311 (2) of the Constitution of India;
(vi) The respondents have also failed to appreciate that, in criminal jurisprudence, there is always a presumption of innocence until guilt is proven. Though the applicant has been named as an accused in FIR No. 425/2021, the presumption of innocence operates in his favour. Furthermore, the investigating agency has not filed a charge sheet under Section 173 Cr.P.C. in the said FIR till date;
4.1 In support of the claim of the applicant, learned counsel for the applicant placed reliance on the various orders/judgments of the various Courts, including; (i) Civil Appeal No. 3040 of 1982 of Hon'ble Apex Court in the matter of Anoop Jaiswal Vs. Govt. of India, decided on 24.01.1984, reported in [1984 (1) SLR 426], wherein it was held that where the form of the order is merely a camouflage for an order of dismissal for misconduct, it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order; (ii) S. L. P. (C) No. 8119 of 1998 of Hon'ble 5 OA No. 3274/2022 Item No.23/C-II Apex Court in the matter of Chandra Prakash Shahi Vs. State of U.P. & Ors. decided on 25.04.2000, reported in 2000 (5) SCC 152, wherein it was held that if the probationer is terminated on account of general unsuitability for the post in question or for his further retention in service or for confirmation and inquiry is held and it is on the basis of that inquiry, a decision is taken to terminated his service, the order will not be punitive in nature; (iii) Civil Appeal No. 5037 of 1997 of Hon'ble Apex Court in the matter of A. P. State Federation of Coop. Spinning Mills Ltd. & Anr. Vs. P. V. Swaminathan, decided on 31.01.2001, reported in (2001) 10 SCC 83, wherein it was held that it is settled law that no stigmatic order can be passed against an employee without conducting regular inquiry. In the instant case, the respondents have not conducted any regular departmental inquiry against the applicant; (iv) OA No. 874/2007 of this Tribunal in the matter of Devi Singh Vs. Govt. of NCT & Anr. decided on 30.11.2007; and (v) OA No. 819/2007 of this Tribunal in the matter of Gaurav Vs. Govt. of NCT of Delhi & Ors., decided on 19.11.2007, in the said judgment, it was held that if the foundation for employee's termination from service during probation is misconduct then that employee should have been given an opportunity to defend himself as per the provisions of Article 311 (2) of the Constitution of India.
REPLY OF THE RESPONDENTS
5. Referring to the counter reply, learned counsel for the respondents submitted that the applicant was appointed as a Warder in the office of the respondents and joined his duties on 12.03.2020. FIR No. 425/2021 dated 03.08.2021 under Section 376 IPC was registered against the applicant at Police Station Shahbad Dairy, Delhi. He was arrested on 19.08.2021 and remained in judicial custody from 19.08.2021 to 27.08.2021. It was alleged that the applicant failed to maintain absolute integrity and had brought disrepute to his official position, thereby acting in a manner unbecoming of a Government 6 OA No. 3274/2022 Item No.23/C-II servant. Consequently, the applicant was placed under suspension with effect from 19.08.2021 vide order dated 06.09.2021.
5.1 It is further stated that the applicant was on a probation period of two years commencing from 12.03.2020 and was governed by the Central Civil Services (Temporary Service) Rules, 1965. The Competent Authority terminated his services under sub-rule (1) of Rule 5 of the said Rules and in accordance with the terms and conditions stipulated in his appointment letter.
5.2 The respondents stated that as per the terms of the offer of appointment dated 13.01.2020, the post was temporary, and the applicant was under probation for a period of two years from the date of his appointment. The appointment could be terminated at any time by giving one month's notice or payment of one month's salary in lieu thereof, either by the Appointing Authority or by the appointee, without assigning any reason. The Appointing Authority also reserved the right to terminate the services forthwith or before the expiry of the notice period by making payment equivalent to the pay and allowances for the remaining notice period.
5.3 The respondents submitted that the applicant joined the Prison Department on 12.03.2020 as a Warder. However, the respondents deny the claim that his work and conduct were exemplary. It is on record that the applicant was implicated in FIR No. 425/2021 under Section 376 IPC, dated 03.08.2021, registered at Police Station Shahbad Dairy. He was arrested in connection with the said case, and the Competent Authority formed the opinion that the applicant was involved in a serious offence/misconduct. The Appellate Authority rejected the applicant's appeal vide order dated 23.09.2022, after examining all relevant facts, including the charges levelled against the applicant, the available records, the penalty imposed by the Disciplinary Authority, the contents of the written appeal, and oral submissions made during the hearing held on 24.08.2022. The applicant had accepted the offer of appointment by his letter dated 7 OA No. 3274/2022 Item No.23/C-II 13.01.2020, explicitly agreeing to the terms and conditions mentioned therein. These terms clearly provided that the Appointing Authority, i.e., Director General (Prisons), had the right to terminate the services of the appointee forthwith or before the expiry of the stipulated notice period by making payment in lieu of notice. Since the applicant was a temporary employee on probation for two years, his services were terminated under Rule 5 (1) of the CCS (Temporary Service) Rules, 1965, in accordance with the appointment conditions, which allowed termination without assigning any reason upon notice or salary in lieu thereof. As failure to complete the probation period satisfactorily would render the appointee liable to discharge from service without any notice. It has come on record that the applicant was implicated in FIR No. 425/2021 under Section 376 IPC, registered on 03.08.2021 at Police Station Shahbad Dairy, and was arrested. The Competent Authority observed that the applicant was involved in a serious offence/misconduct. In view of gravity of the misconduct, which rendered him unsuitable for government service, his services were terminated under Rule 5 (1) of the CCS (Temporary Service) Rules, 1965. It is submitted that the said rule does not require the holding of a departmental inquiry prior to termination.
5.4 To bolster his arguments, learned counsel for the respondents has placed reliance on the following matters, namely, (i) High Court of Madhya Pradesh at Gwalior in Writ Petition No. 7755 of 2016 in the matter of Sandeep Parihar Vs. The State of Madhya Pradesh & Ors. decided on 24.06.2025; and (ii) High Court of Delhi in Writ Petition (C) No. 6596/2023 in the matter of Government of NCT of Delhi & Anr. Vs. Dalbir Singh, decided on 06.09.2023, reported in 2023:DHC:6543-DB.
6. We have perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to 8 OA No. 3274/2022 Item No.23/C-II and relied upon by the learned counsels for the respective parties carefully.
7. Upon consideration of the facts of the case and the submissions advanced by the learned counsel for the parties, the central issue that arises for determination is whether the applicant's termination during the period of probation, purportedly under Rule 5 (1) of the Central Civil Services (Temporary Service) Rules, 1965, was a lawful exercise of administrative discretion, or whether it was, in substance, punitive in nature, thereby attracting the protection of Article 311 (2) of the Constitution of India.
8. It is not in dispute that the applicant was appointed as a Warder and joined service on 12.03.2020 and was on probation for a period of two years. It is also admitted that FIR No. 425/2021 under Section 376 IPC was registered against him on 03.08.2021, and he was arrested and remained in judicial custody from 19.08.2021 to 27.08.2021. Based on this incident, the respondents issued a show-cause notice alleging that the applicant had failed to maintain absolute integrity and brought discredit to his duties. In the official noting, the respondents have submitted that no official information regarding his arrest (date of arrest) has been received till date from P.S. Shahbad Dairy despite office letter dated 16.08.2021 (Page 3/C) and various telephonic call by L.O. Branch to the concerned I.O. of P.S. Shahbad Dairy, Delhi. This reflects poorly on the functioning of police authorities. Subsequently, his services were terminated vide order dated 14.10.2021 (Annexure-A/1) under Rule 5 (1) of the CCS (Temporary Service) Rules, 1965. For facility of reference, it is appropriate to quote the relevant portion of the impugned order which reads as under:-
"In pursuance of Proviso to Sub-Rule (1) of Rule-5 of the Central Civil Services (Temporary Services) Rules, 1965, I, Sandeep Goel, Director General (Prisons) hereby terminate forthwith the services of Shri Naveen, Warder-2063 and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing 9 OA No. 3274/2022 Item No.23/C-II them immediately before the termination of his service or, as the case may be, for the period by which such notice falls short of one month."
9. On the face of it, the impugned order appears to be non-stigmatic. However, the thrust of the applicant's argument is that the termination, though purportedly under Rule 5 (1) of the Rules ibid, was in fact based on allegations of misconduct, namely, his implication in a serious criminal case. It is well settled that when the foundation of a termination order is an allegation of misconduct, such an order, even if couched in innocuous terms, is punitive in nature. This position has been clarified in several binding precedents including Anoop Jaiswal Vs. Union of India (supra) and Chandra Prakash Shahi Vs. State of U.P., (supra). The Hon'ble Apex Court has held that where the form of the order is a mere camouflage and the foundation is misconduct, the termination will be treated as punitive, and the procedural safeguards under Article 311 (2) of the Constitution of India will be attracted.
10. In the present case, the termination order clearly stems from the applicant's implication in a criminal case involving moral turpitude. The show-cause notice specifically refers to his failure to maintain integrity and his arrest, and the respondents have repeatedly asserted in their counter affidavit that the termination was necessitated due to the applicant's alleged involvement in a grave offence.
11. On page 9/N of the official noting, the Director General (Prisons) has recorded his observations and recommendations concerning the delinquent official. The DG has noted that the individual is involved in a very serious offence or act of misconduct, which, in his assessment, warrants strict disciplinary action. Despite the opportunity given to the official to submit a reply to the charges, the DG has observed that the contents of the reply fail to offer any justification or mitigating circumstances that could lessen the gravity of the offence. In view of the seriousness of the misconduct and the unsatisfactory explanation provided, the DG has recommended that the services of the official be 10 OA No. 3274/2022 Item No.23/C-II terminated forthwith, invoking the provisions of the Central Civil Services (Temporary Services) Rules, 1965. The same reads as under:-
"*** *** ***
39. He is involved in a very serious offence/misconduct. There is nothing in his reply that could mitigate its seriousness.
40. His services be terminated under the provisions of Central Civil Services (Temporary Services) Rules, 1965."
12. The above statement of DG (Prisons) makes it evident that the termination was not on grounds of general unsuitability or failure to complete probation satisfactorily, rather on the specific allegation of misconduct.
13. Moreover, it is not the case of the respondents that any departmental inquiry, even a summary one, was held. The termination was effected without giving a proper opportunity to the applicant to defend himself. In such circumstances, the safeguards under Article 311 (2) of the Constitution of India become applicable, and the failure to conduct a regular departmental inquiry vitiates the termination.
14. It is also noted that the appeal preferred by the applicant was rejected by the Appellate Authority by passing a cryptic and non- speaking order dated 23.09.2022 (Annexure-A/2), without dealing with the contentions raised or the legal precedents cited. Such a mechanical approach further undermines the legality of the termination order. The relevant part of the Appellate Authority's order dated 23.09.2022 (Annexure-A/2) reads as under:-
"2. The background of the case is as follows:-
The Appellant was absent from his duties since 02.08.2021. He submitted an application for medical leave alongwith a medical certificate for 04 days i.e. 02.08.2021 to 05.08.2021. On the body of said medical leave application it has been mentioned that the Appellant did not join his duties on 06.08.2021 and was absent from his duties from 02.08.2021 to 16.08.2021. Further, the said medical leave of the Appellant for 02.08.2021 10 05.08.2021 was rejected vide memorandum dated 16.08.2021 as the application was found unsigned.11 OA No. 3274/2022
Item No.23/C-II The Appellant vide letter dated 11.08.2021 (sent through speed post) intimated to the Superintendent CJ-10 regarding an FIR No. 425/2021 under section 376 IPC dated 03.08.2021 lodged against him at P.S. Shahbad Dairy, Delhi. Superintendent, CJ-10 has informed that through PMS/UI Branch, he came to know that Shri Naveen S/o Bijender was lodged in CJ-08/9 on 20.08.2021. SCJ-
10 had further informed that no information regarding date of arrest of the Appellant has been received from PS-Shahbad Dairy, Delhi inspite of letter dated 16.08.2021 and various telephonic calls by LO Branch of CJ-10. Further, the Appellant was arrested on 20.08.2021 and remained in custody from 20.08.2021 to 27.08.2021. Due to his custody exceeding 48 hours, he was placed under deemed suspension w.e.f. 19.08.2021 vide order dated 06.09.2021. Further, a Show Cause Notice dated 06.09.2021 was also issued to the Appellant (U/S).
3. The D.G. (Prisons) observed that he is involved in a very serious offence/misconduct and there is nothing in his reply submitted vide letter dated 13.09.2021 that could mitigate its seriousness. Thus, taking into account of all the facts available on record, circumstances of the case, written and verbal submission of the Charged Official and considering the gravity of his misconduct, the DG (Prisons) being the Disciplinary Authority and empowered under the Central Civil Services (Classification, Control and Appeal) Rules, 1963, has terminated the Appellant from service under Rule- 5(1), of Central Civil Services (Temporary Services) Rules, 1965.
4. The Appellant, filed the present appeal dated 01.11.2021 against the impugned order and denied the charges leveled against him, on the following main grounds:-
i. Through the termination of service appears to be simplicter but on lifting the veil, it is very clear that the foundation of the same in alleged incident of misconduct and as such recourse to Rule S(1) of CCS (TS) rule is totally uncalled for.
ii. It is settled law that where the service is punitive in nature and is brought about on the ground of misconduct, article 311(2) of the constitution of India would be attracted and in that situation it would be incumbent upon the employer in the case of Govt. servant to hold regular departmental enquiry.
iii. The order of termination of services in two probationers i.e. Warder Devi Singh and Warder Gaurav Yadav were set aside by the Hon'ble Tribunal only because the foundation of those order was misconduct and their services were terminated without holding regular inquiry against them. The judgments passed by the Hon'ble Tribunal in their OA No. 874/2007 and 819/2007.12 OA No. 3274/2022
Item No.23/C-II iv. The termination order is arbitrary and illegal for the obvious reason that no stigmatic order can be passed against an employee without conducting regular enquiry. In the present case no regular inquiry has been held against the applicant. The Hon'ble Apex Court has held in the case of A.P. State Federation of Coop Vs. P.V Swaminathan reported as JT 2001 (3) SC 530 that, if the court comes to conclusion that the so called in efficiency was the real foundation for passing the order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed.
v. Issuing of show cause Notice dated 06.09.2021 annexed to the applicant proposing penal action is itself arbitrary and bad in law Rule 19 (i) of CCS (CCA) Rules 1965 provides for dispensing with the procedure for holding regular enquiry and resorting to issue of notice only when the Govt. servant is convicted by the court of law. In this instant case the applicant is on bail and even the charge sheet has not been filed.
vi. The action taken by the Disciplinary Authority and its decision to terminate the applicant from service is not only arbitrary but is also premature because even the charge have not been found framed against the applicant by the court of law.
vii. The applicant is likely to be acquitted in the case because Ms Jaya Khatri has refused to medically examined herself and there is no other evidence or merit to prove the allegation leaded by her.
Accordingly, the Appellant requested for quashing and setting aside the termination order dated 06.09.2021 with all consequential benefits.
5. The Appellate powers of such cases are vested in the undersigned by virtue of Rule 24 of CCS (CCA) Rules, 1965.
6. The Appellant was accorded an opportunity of personal hearing on 24.08.2022. The Appellant, during the personal hearing, denied the charges levelled against him and requested for taking a lenient view towards him, by setting aside the impugned order.
7. I have examined all the facts of the matter, including the charges levelled against the Appellant, the available records, the penalty imposed on him by the Disciplinary Authority, the contents of the written appeal and the oral submissions made during the hearing on 24.08.2022.
8. The Appellant accepted the offer of appointment vide his letter dated 13.01.2020 where he specifically mentioned that he accepted the terms and conditions mentioned therein. The aforesaid terms and conditions make it clear that the Appointing Authority i.e. Director General (Prisons) reserved the right of terminating the 13 OA No. 3274/2022 Item No.23/C-II services of the appointee forthwith or before expiry of the stipulated period of notice by making payment for the unexpired period. The Appellant was a temporary appointee, on probation for two years from the date of appointment. His services were terminated by the Director General (Prisons) under Rule (5) (1) of the Central Civil Services (Temporary Services) Rules, 1965, in accordance with the aforesaid conditions of appointment which clearly provided for termination of service without assigning any reason with one month notice or salary undue thereof.
9. Considering the totality of the facts and circumstances of the case, no intervention is called for in the impugned order dated 14.10.2021 of the Disciplinary Authority. The appeal is, accordingly, rejected
10. The Appellant may be informed, and a copy of this order be served upon him."
15. While the respondents have argued that the terms of the appointment letter and Rule 5 (1) of the CCS (Temporary Service) Rules, 1965 permit termination of a probationer without assigning any reason, such a rule cannot be applied to circumvent constitutional protections when the termination is founded on a charge of misconduct. The Hon'ble Supreme Court in Civil Appeal No. 7523 of 2001 in the matter of Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences, decided on 05.11.2001, reported in (2002) 1 SCC 520, held that if the order of termination casts a stigma or is based on allegations of misconduct, it cannot be passed without following the principles of natural justice and provisions of Article 311 (2) of the Constitution of India. For facility of reference, the relevant operative portion of the said judgment/order is reproduced, which reads under:-
"According to the appellant, the order was punitive and cast a stigma on the appellant and could not be sustained without a full scale departmental inquiry. It has been argued that the termination order was founded upon allegations of misconduct against the appellant. A summary inquiry had been held by the respondents in which a charge-sheet had been issued to the appellant. The inquiry officer had submitted a report to the respondents, a copy of which was not made available to the appellant, but immediately after the completion of the inquiry the impugned order of termination had been passed. In support of the submission that the order was punitive, our attention was drawn 14 OA No. 3274/2022 Item No.23/C-II by the appellant to statements made in the counter affidavit filed by the respondent before the High Court where the respondents have alleged that the appellants integrity and honesty were doubtful.
The respondents have submitted that the inquiry was held merely to assess the appellants fitness for being continued on probation. The respondents claimed to have received various complaints regarding the discharge of the appellants duties and in order to give the appellant an opportunity of placing the true facts before the respondent the summary inquiry was held so that the suitability of the appellant for being confirmed in the post of Joint Director (Material Management) could be fairly assessed. It was also submitted that the order was not stigmatic nor punitive and that no statement in the counter affidavit would change that position.
The High Court has accepted the submissions of the respondents and accordingly dismissed the writ petition.
Since the decision in Parshottam Lal Dhingra V. Union of India, Courts have had to perform a balancing act between denying a probationer any right to continue in service while at the same time granting him the right to challenge the termination of his service when the termination is by way of punishment. The law has developed along apparently illogical lines in determining when the termination of a temporary appointee or probationers services amounts to punishment.
In 1974, Krishna Iyer, J. had said, The need, in this branch of jurisprudence, is not so much to reach perfect justice but to lay down a plain test which the administration and civil servant can understand without subtlety and apply without difficulty. Since Dhingra is the Magna Carta of the India civil servant, although it has spawned diverse judicial trends, difficult to be disciplined into one single, simple, practical formula applicable to termination of probation of freshers and of the services of temporary employees , we have thought it best to refer to the facts of Dhingras case to understand what exactly was meant when the Court said:
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 operating on the mind of the Government is, as Chagla, C.J. has said in Shrinivas Ganesh v. Union of India (N) (supra), wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so art. 311 is not attracted.15 OA No. 3274/2022
Item No.23/C-II 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 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 Art. 311 must be complied with.
In that case the employee had been reverted back from an officiating post. The records showed that adverse remarks had been made against the employee in his confidential reports while he was officiating. These remarks were placed before the General Manager who said that he was disappointed to read them and that he should be reverted as a subordinate till he makes good the shortcomings noticed. The order of reversion was passed by the General Manager soon after this. When the issue ultimately came before this Court, this Court upheld the order of reversion, saying:
He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government and, therefore, his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment. Nor did this reduction under Note 1 to R.1702 amount to his dismissal or removal. Further it is quite clear from the orders passed by the General Manager that it did not entail the forfeiture of his chances of future promotion or affect his seniority in his substantive post. In these circumstances, there is no escape from the conclusion that the petitioner was not reduced in rank by way of punishment and, therefore, the provisions of Art. 311 (2) do not come into play at all.
(Emphasis supplied) Therefore, although the General Manager had issued the order of termination on the basis of the adverse reports, the order was not considered as a punishment because it did not jeopardise the appellants career prospects. It is also clear from the paragraph quoted that punishment means the deprivation of a right which the employee otherwise has. Thus, if he is already in service and is reverted from an officiating post, although he does not have a right to continue in the officiating post, he still has a right to be considered for promotion. If he is on probation or on a temporary appointment, he has a right to seek new employment if his appointment or probation is terminated. Anything which jeopardises these rights would be by way of punishment. Another Constitution Bench of this Court in Benjamin (A.G.) and Union of India explained the decision of Parshotam Lal Dhingra (supra). It followed the two tests mentioned in Dhingras case viz.16 OA No. 3274/2022
Item No.23/C-II (1) Whether the temporary Government servant had a right to the post or the rank, or (2) Whether he has been visited with evil consequences.
If punishment were restricted to evil consequences, the Courts task in deciding the nature of an order of termination would have been easier. Courts would only have to scan the termination order to see whether it ex-facie contains the stigma or refers to a document which stigmatises the officer, in which case the termination order would have to be set aside on the ground that it is punitive. In these cases the evil consequence must be assessed in relation to the blemish on the employees reputation so as to render him unfit for service elsewhere and not in relation to the post temporarily occupied by him. This perhaps is the underlying rationale of several of the decisions on the issue. In V.P. Ahuja V. State of Punjab and Others cited by the appellant, the Court construed the language of the order and found that it was ex-facie stigmatic.
In Krishnadevaraya Education Trust & Anr. v. L.A. Balakrishna, the first letter of termination mentioned that the Committee appointed to go into the question of general performance of each staff had found that the employee, who had been appointed on probation, was not upto the mark. This was followed by a second order of termination which did not refer to the employees performance at all. The Court held that it was preferable that the order of termination did not mention that the employees performance was not satisfactory as then the employer runs the risk of the allegation being made that the order itself casts a stigma. Nevertheless, the Court held that the reasons stated in the first order did not mean that the termination may be by way of punishment because the probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.
Finally, this Court in H.F. Sangati V. Register General, High Court of Karnataka and Others dealt with the question whether an order terminating the appointment of a probationer Munsif could be considered to be punitive. In that case during the period of probation, several adverse remarks had been made in the confidential records of the probationer. The Administrative Committee of the High Court considered these confidential records and came to the conclusion that the appellant was not fit to be confirmed in the post of a judicial officer. They recommended to the High Court accordingly. The High Court accepted the recommendation at a Full Court meeting and referred the matter to the State Government. The State Government accepted the recommendation and discharged the probationer from service. The order of termination mentioned that the employee was unsuitable to hold the post of Munsif. The Court held that the order did not cast any stigma on the employee and was not punitive.
17 OA No. 3274/2022Item No.23/C-II But the law does not rest there. In Shamsher Singh v. State of Punjab, the Courts were asked to look behind the form of the order to find out whether the termination was in substance punitive. So when a full scale inquiry is held against a probationer or a temporary appointee and he is found guilty, an order terminating his services for this reason has been seen as punitive and bad. It is this search for the substance behind the form of the order of punishment which has lead to some apparently conflicting decisions.
Thus some Courts have upheld an order of termination of a probationers services on the ground that the enquiry held prior to the termination was preliminary and yet other courts have struck down as illegal a similarly worded termination order because an inquiry had been held. Courts continue to struggle with semantically indistinguishable concepts like motive and foundation; and terminations founded on a probationers misconduct have been held to be illegal while terminations motivated by the probationers misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents.
As observed by Alagiriswamy, J. in S.P. Vasudeva V. State of Haryana and Others 1976 (1) SCC 236, at p. 240:
After all no government servant, a probationer or temporary, will be discharged or reverted, arbitrarily, without any rhyme or reason. If the reason is to be fathomed in all cases of discharge or reversion, it will be difficult to distinguish as to which action is discharge or reversion simplicitor and which is by way of punishment. The whole position in law is rather confusing.
One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry
(b) into allegations involving moral turpitude or misconduct (c) which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.
The three factors are distinguishable in the following passage in Shamsher Singh v. State of Punjab (supra) where it was said:
Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object 18 OA No. 3274/2022 Item No.23/C-II not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection. (Emphasis supplied) Thus in Benjamins case (supra), complaints had been received against a temporary employee. A notice had been sent to the employee to show cause why disciplinary action should not be taken against him. The inquiry officer was appointed but before the inquiry was completed, the services of the employee were terminated with one months salary in lieu of notice. The Constitution Bench upheld the order of termination and drew a distinction between a preliminary inquiry and a departmental inquiry. It was held that a preliminary inquiry held to satisfy the Government whether there was no reason to dispense with the services of the temporary employee should not be mistaken for a departmental inquiry held to decide whether punitive action should be taken.
In State of Uttar Pradesh and Another V. Kaushal Kishore Shukla, the employee had been appointed on a temporary basis for a fixed tenure. During the period of his service, adverse entries were made in his character roll. Complaints were also received by the auditors of the employer. A summary inquiry was held. It was found that the auditors complaint was correct. The employee was transferred to another post. He did not join and the employer terminated his services. This Court, while upholding the order of termination, said that the mere fact that prior to the issue of the termination an inquiry was held against the employee did not make the order of termination into one of punishment.
In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Another, a full scale inquiry was held into the allegations of bribery against a temporary employee. The Court set aside the termination because it found that the report submitted was not a preliminary inquiry report but it was in fact a final one which gave findings as to the guilt of the employee. In Dipti Prakash Banerjee V. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Others, the termination order itself referred to three other letters. One of the letters explicitly referred to misconduct on the part of the employee and also referred to an Inquiry Committees report, which report in its turn had found that the employee was guilty of misconduct. The termination was held to be stigmatic and set aside.19 OA No. 3274/2022
Item No.23/C-II The case of Chandra Prakash Shahi v. State of U.P. and Others related to a constable who was on probation after successfully completing his training. The constable completed his period of probation without blemish. One year later, his services were terminated by issuance of a notice in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. An inquiry was held into the allegations of misconduct. The Court found as a fact that the inquiry was not held to judge the suitability of the constable but with a view to punish him. The order was held to be punitive and set aside. Therefore, whenever a probationer challenges his termination the courts first task will be to apply the test of stigma or the form test. If the order survives this examination the substance of the termination will have to be found out.
Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationers appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationers appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (supra) At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das, it has been held that use of the word unsatisfactory work and conduct in the termination order will not amount to a stigma.
Returning now to the facts of the case before us. The language used in the order of termination is that the appellants work and conduct has not been found to be satisfactory. These words are almost exactly those which have been quoted in Dipti Prakash Banerjees case as clearly falling within the class of non-stigmatic orders of termination. It is, therefore safe to conclude that the impugned Order is not ex facie stigmatic.
We are also not prepared to hold that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge sheet merely details the allegations so that the employee may deal with them 20 OA No. 3274/2022 Item No.23/C-II effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exist here.
It was finally argued by the appellant that the intention of the respondents to punish him was clear from the following statement in the affidavit filed on their behalf. It is important to mention herein that even honesty and integrity of the petitioner was also under cloud as he took undue favours by misusing his position from the suppliers and maligned the reputation of the institute.
That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, .when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise Equally an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is also what was held in State of Uttar Pradesh v. Kaushal Kumar Shukla (supra):
The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.
Having held against the appellant on all counts, we dismiss the appeal but without any order as to costs."
16. In the instant case, though the order of termination is ex facie not stigmatic in nature, however, we go deep to find out the basis of such order, then we find that the order is based on the allegation of moral delinquency. Therefore, the impugned order becomes stigmatic and hence, reliance placed upon the judgments as noted above by the respondents will not come to their rescue. The principle of presumption of innocence until proven guilty also stands in favour of the applicant, especially when the charge sheet under Section 173 Cr.P.C. has not been filed till date before the concerned competent court. Therefore, termination solely on the basis of a pending FIR, without culmination of trial or proof of guilt, and without holding a disciplinary inquiry, cannot be sustained in law. The issue as enumerated in para 7 hereinabove, is accordingly answered in favour of the applicant.
21 OA No. 3274/2022Item No.23/C-II
17. In view of the above facts and circumstances of the case and for the foregoing reasons, we are of the considered view that the impugned order dated 14.10.2021 (Annexure-A/1) terminating the services of the applicant during the probation period and the appellate order dated 23.09.2022 (Annexure-A/2) rejecting his appeal, are punitive in nature and violative of Article 311 (2) of the Constitution of India. The orders suffer from legal infirmities and are liable to be set aside.
18. In the result, the Original Application is allowed with the following directions:-
i. The impugned orders dated 14.10.2021 (Annexure-A/1) and 23.09.2022 (Annexure-A/2) are quashed and set aside;
ii. The respondents are directed to reinstate the applicant in service forthwith. However, considering the peculiar facts and that the applicant was not in service during the pendency of the case, he shall not be entitled to back wages for the intervening period. However, the period shall be counted for continuity of service and other consequential benefits except arrears of pay. iii. However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law, if they deem it appropriate.
19. Pending MA, if any, shall also stand disposed of accordingly.
20. No order as to costs.
(Rajinder Kashyap) (R. N. Singh)
Member (A) Member (J)
/neetu/