Allahabad High Court
Km. Mamta Jauhari vs State Of U.P. And Another on 27 November, 1998
Equivalent citations: 1999(1)AWC676, (1999)1UPLBEC54
Bench: D.P. Mohapatra, G.P. Mathur
JUDGMENT D.S. Sinha, J.
1. This Full Bench has been constituted not to resolve any conflict of the decisions, point or points of fact or law. Indeed, the Full Bench is called upon to decide on merits the writ petition of Km. Mamta Jauhari, an erstwhile temporary employee of the State of Uttar Pradesh, serving as District Programme Officer (Woman), wherein legality of the order dated 5th December, 1994, terminating her services, is the subject-matter of challenge.
2. Writ petition was presented before the concerned Division Bench on 28th March, 1995. Under the direction of the Bench requisite affidavits were filed by the parties. The petition was heard by the Bench on 3rd July, 1996 and the judgment was reserved.
3. On 4th November, 1996 two separate well considered judgments and final orders of the learned Judges constituting the Bench were pronounced, signed and sealed in the open Court.
4. One final order reads thus :
"In the result, this writ petition succeeds and is allowed. The impugned order dated 5.12.1994 as published on 6.1.1995 is quashed. The respondents are directed to complete the disciplinary proceedings against the petitioner in accordance with law as expeditiously as possible preferably within six months from the date of presentation of certified copy of this order.
Sd./- Illegible 4.11.1996."
The other final order reads thus :
"After considering the submission of learned counsel for the petitioner Shri Ashok Khare, we are of the considered view that the termination has been made in accordance with the rules and it is not stigmatory and her services have been terminated in accordance with the Rules.
We, therefore, for the reasons recorded above dismiss the writ petition.
Sd./- Illegible 4.11.1996."
Thereafter, the learned Judges passed the following order :
"In view of difference of opinion, the papers be placed before the Hon'ble Chief Justice preferably within 24 hours for sending the matter for opinion to a third Judge.
Sd./- Illegible 4.11.1996.
Sd./- Illegible 4.11.1996."
Then, the Hon'ble the Chief Justice passed an order dated 19.11.1996 referring the matter to a third Judge.
5. The matter came up before third Judge on various dates between 28th February, 1997 and 2nd May, 1997 and had to be adjourned for various reasons, recorded on the order-sheet. Eventually, on 14th May, 1997 after hearing the learned counsel appearing for the parties, at length and In detail, following order was passed :
"Heard Sri Ashok Khare and Sri S. K. Srivastava, learned counsel appearing for the parties, at length and in detail.
It appears that this petition was heard by a Division Bench on 4th November. 1996. The Hon'ble Judges constituting the Bench delivered two different judgments. One proposing to dismiss the writ petition and the other proposing to allow the writ petition.
In view of the dissonance, the Hon'ble Judges passed an order directing the papers of the case to be placed before' the Hon'ble the Chief Justice for sending the matter for opinion to a third Judge.
On 19th November, 1996, the Hon'ble the Chief Justice passed the following order :
Referred to Hon'ble D. S. Sinha, J.
Sd./- D.P.M. 19.11.1996."
Learned counsel for the parties concede that instant reference is under Rule 3 of Chapter VIII of the Rules of Court, 1952 which reads thus :
"Procedure when Judges are divided in opinion.--When a case (to which the provisions of the Code of Criminal Procedure do not apply), is heard by a Division Court composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority, if there shall be a majority. Should the Judges be equally divided they may state the point upon which they differ and each Judge shall record his opinion thereon. The case shall then be heard upon that point by one or more of the other Judges as may be nominated by the Chief Justice and the point decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."
While dealing with the case of M/s. Shriram Industrial Enterprises Ltd. v. Union of India and others, 1996 All LJ 468, after considering the provisions of Rule 3 of Chapter VIII, extracted above, a Full Bench of this Court observed thus :
"The language of above quoted Rule is plain and admits of no ambiguity. If the Judges of Division Court which is composed of two Judges are equally divided in opinion, they may state the point upon which they differ and then the case shall be heard upon that point alone by one or more of the other Judges as may be nominated by the Chief Justice. The point about which a reference has been made shall then be decided according to the opinions of majority of the Judges who -have heard the case including those of the Division Court which heard it initially."
The Full Bench further observed as follows :
"There can be no doubt that the proper course for the Judges who have dissented in their respective opinions while hearing a writ petition is not to pass final order either allowing or dismissing the same but to state their point of difference after expressing their opinions. However. It will still be open to them to state the point upon which they have differed even if they have passed final orders."
Indisputably, in the instant case the Hon'ble Judges have neither stated the point or points upon which their Lordships differed nor have their Lordships recorded there any opinion thereon.
In view of the law laid down by the Full Bench in the case of M/s. Shriram Industrial Enterprises Ltd. v. Union of India and others (supra), it appears appropriate that the matter may be referred to the concerned Bench for formulating the point or points upon which there is difference and for recording opinion thereon.
Thus, it is directed that the record of the case be placed before the Hon'ble the Chief Justice for appropriate order/orders.
Sd./- D. S. Sinha.
14.5.1997."
6. Their Lordships constituting the Bench did not choose to state the point or points upon which they differed and lamented on the inability of the single Judge in locating the 'point' of difference in the two judgments as is apparent from their order dated 19th November, 1997, which reads thus :
"The two judgments passed by this Court are self-explanatory. Reasons exist to sustain the order of either of us and the conclusions reached in the respective Judgments. That is why the matter had to go to third Judge and the Hon'ble the Chief Justice was graciously pleased to send it to the Hon'ble third Judge. It is a different matter that the learned single Judge has not been able to locate the point of difference in the two judgments.
Nonetheless the questions raised in the writ petitions noted In the respective judgments are of vital importance and may have far reaching consequences. Moreover, having once pronounced the judgment it does not appear in the fitness of the things to frame points of difference or interpret that judgment judiciously all over again to facilitate the hearing by a third Judge. Under the circumstances, it is respectfully suggested that the entire writ petition may go before a Full Bench as early as possible.
The papers be laid before the Hon'ble the Chief Justice to send the writ petition before a Full Bench. It is respectfully suggested that Full Bench may be nominated at the earliest possible convenience by the Hon'ble the Chief Justice because only in the process of transmission of this record from this Court to single Judge and from single Judge to this Court, it has consumed more than a year.
Sd./- Illegible Sd./- Illegible."
19.11.1997.
Eventually, the Hon'ble the Chief Justice constituted this Full Bench vide order dated 28th January. 1998.
7. At the outset, the question calling advertance is whether petitioner should have been permitted to invoke the special and extraordinary discretionary jurisdiction of this Court under Article 226 of the Constitution of India irrespective of availability of effective statutory alternative remedy by way of reference of claim before the State Public Services Tribunal under Section 4 of the U. P. Public Services (Tribunal) Act, 1976 (hereinafter called the 'Act').
8. The scope of discretion of the High Court to entertain a writ petition under Article 226 of the Constitution of India where appropriate, adequate and efficacious remedy is available to the petitioner has been subject-matter of consideration, inter alia, in K.K. Srivastava v. Bhupendra Kumar Jain. AIR 1977 SC 1703 ; Bar Council of Delhi and another v. Surjeet Singh and others. AIR 1980 SC 1612 and Gujarat University v. N. U. Rajguru and others, AIR 1988 SC 66. In these decisions, the Hon'ble Supreme Court held that except where there exist exceptional or extraordinary circumstances or the alternative remedy is inadequate or inefficacious, the High Court should decline to entertain a petition under Article 226 of the Constitution of India, A Full Bench of this Court also considered this aspect in the case of Chandrama Singh v. Managing Director, U. P. Cooperative Union, Lucknow and others, 1991 Lab IC 2413 : (1991) 2 UPLBEC 898 : 1991 ACJ 784, and. after considering the various decisions of the Hon'ble Supreme Court, it concluded thus :
"The decisions of the Hon'ble Supreme Court of India and this Court, noted above, lead to an irresistible conclusion that the High Court must not allow its extraordinary jurisdiction under Article 226 of the Constitution of India to be invoked if the petitioner has got an alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious, or if it is not established from the material on record that there exist exceptional or extraordinary circumstances to deviate from the well-settled normal rule of relegating the petitioner to alternative remedy and permit him to by-pass the alternative remedy. The hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and bald statement in the petition that "there is no other equally efficacious or adequate alternative remedy than to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India". The petitioner must furnish material facts and particulars to sustain such a plea."
9. In the instant case, the petitioner has made merely a casual and bald statement in paragraph 45 of the petition that she "has no other efficacious alternative remedy than to file the present petition under Article 226 of the Constitution". Obviously, this is not sufficient to meet the requirement pointed by the Full Bench in Chandrama Singh's case.
10. In the case of State of U. P. and another v. Labh Ghana, JT 1993 (2) SC 298, the Hon'ble Supreme Court had the occasion to consider the question whether a High Court should not normally permit the petitioner to invoke its jurisdiction under Article 226 of the Constitution of India when a Statutory Forum or Tribunal specially created by a statute for redressal of his grievance is available ; and whether the remedy by way of reference of claim before the State Public Services Tribunal available to a public servant, defined under the Act, for ventilation of his grievances relating to matters of employment is adequate and efficacious, and whether he should be allowed to by-pass the said remedy. The Hon'ble Supreme Court held as follows :
"When a Statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 of the Constitution is a legal position which is too well-settled. A Constitution Bench of this Court in Thansingh Nathmal and others v. A. Mazid, Superintendent of Taxes. (1964) 6 SCR 655, when had the occasion to deal with the question as to how the discretionary jurisdiction of a High Court under Article 226 of the Constitution, was required to be exercised respecting a petition filed thereunder by a person coming before it bypassing a statutory alternate remedy available to him for obtaining redressal of his grievance ventilated in the petition, has given expression to the said well-settled legal position, speaking through Shah, J., as he then was, thus :
"The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary ; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations......
Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Article 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up." (pages 661-662)."
"As is seen from the said preamble, the provisions in the Act and the Rules, the U. P. Public Services Tribunal is intended to be an exclusive and exhaustive machinery or forum for adjudication of claims of all public servants including the persons in the service or pay of the State Government, in matters of their employment, inasmuch as, suits in such matters are specifically barred by the provisions in Section 6 of the Act. That Tribunal since composes of a Judicial Member who is a serving Judge of the High Court or is qualified to become such Judge and an Administrative Member who holds or had held the post of, or any post equivalent to, Commissioner of a Division, it is a statutory Tribunal of the State possessed of expertise to adjudicate claims of public servants in matters of their employment. That the Tribunal in its enquiries being not bound by the technical rules of procedure under the Civil Procedure Code and the technical rules of evidence under the Evidence Act, it could avail of its vast powers of enquiry to redress grievances of public servants concerning matters of their employment adequately and efficaciously. The fact that Section 4 of the Act declares that the decision of the Tribunal is final subject to the provisions of Articles 226 and 227 of the Constitution itself shows the nature of high Judicial sanctity attached by statute to such decision." "......
If we have regard to the high status of the members constituting the Tribunal, expertise possessed by such members to consider the claims of employees in matters of their employment, vast powers invested in them to hold exhaustive enquiries and to grant full reliefs in matters relating to their employment, we cannot but hold that that Tribunal is the highest forum created by the Act to give full and complete relief to public servants in matters of their employment, that too, with expedition."
11. Thus, unless reason, gripped and overpowered by unbridled audacity generating phenomenon fraught with risk of judicial anarchy, refuses to perceive the above decisions to be lodestar for exercise of special and extraordinary jurisdiction under Article 226 of the Constitution of India, there is no escape from the conclusion that the petitioner, who is, indisputably, a public servant as defined in the Act, should not have been allowed to invoke the said discretionary jurisdiction of this Court ; that as advised by great pundit Hon'ble Mr. Justice Krishna Iyer in K. K. Srivastawa v. Bhupendra Kumar Jain, AIR 1977 SC 1703, the Court should have kept "its hands off ; and that the petitioner should have been relegated to the effective statutory alternative remedy of reference of claim to the Tribunal provided under Section 4 of the Act.
12. Chapter XXII of the Rules envisages that on a petition under Article 226 of the Constitution being presented if the Court does not find "sufficient reasons", in other words a prima facie case, to admit the petition, it may reject it. Existence of "sufficient reasons to admit" is sine qua non for admitting the petition for final hearing. After admission, the notice is issued to the opposite party. Unless otherwise ordered, the opposite party has to file counter-affidavit within three weeks from the date of service of notice and the petitioner has to file rejoinder-affidavit within two weeks of service of counter-affidavit on him. Thereafter, the petition comes up for final hearing. Scrutiny of petition for finding existence of "sufficient reasons to admit" the petition is aimed at checking the influx of frivolous petitions. Otherwise frivolous petitions would inundate the Court submerging the genuine petitions. Record shows that instant petition is not formally admitted. But affidavits have already been exchanged between the parties. Thus, for all intent and purpose, the petition stands entertained calling upon its final determination.
13. The acts and events constituting the alleged material facts emerging from the pleadings of the parties are these :
"On the recommendation of the U. P. Public Service Commission, the State Government by its order dated 13th March. 1992, a copy whereof is Annexure-2 to the petition, appointed the petitioner temporarily on the temporary post of District Programme Officer, under the control of Manila Evam Bal Vikas Department. Paragraph 2 of the appointment order notified, unequivocally, that the appointment was purely temporary and could be terminated at any time on one month's notice or one month's pay in lieu thereof, but there was likelihood of its continuance. By the same order, the petitioner was posted at Aligarh where she joined.
14. Subsequently, the petitioner was posted at Head Office, i.e., Directorate of Bal Vikas Seva and Pushtahar at Lucknow where she joined on 2nd February, 1993. Thereafter, by means of the order dated 21st June, 1993, the petitioner was posted at Mirzapur where she joined on 22nd June, 1993.
15. During the financial year 1993-94, a fund of Rs. 567.30 lacs was placed at the disposal of the petitioner to meet the expenditure under the State plan for supplement nutrition. By letter dated 17th December, 1993, a copy whereof is Annexure-3 to the counter-affidavit of Hriday Shankar Chaturvedi, the Director. Bal Vikas Seva Evam Pushtahar, U. P., Lucknow, the respondent No. 2, required the petitioner to surrender to Directorate unutilized fund and transmit the same through Bank Draft by 20th December, 1993. The letter stated that in case surrender was not received by the appointed date, it would be presumed that the amount had been utilized during the current financial year. The letter also warned the petitioner that if any amount under the said plan was lapsed, she would be personally liable therefor.
16. It transpires that unutilized fund amounted to Rs. 23.04 lacs. The petitioner did not return the amount to the Directorate as required by Directorate vide letter dated 17th December, 1993, held out the amount to have been duly utilized and furnished, allegedly, fictitious and forged documents as a proof of utilisation. The said amount of Rs. 23.04 lacs was withdrawn from the Government Treasury by the petitioner and deposited in her Personal Account No. 3/690 maintained at the State Bank of India, Mirzapur, in contravention of the business rules of the Government.
17. Later on, complaints against the petitioner alleging embezzlement of the unutilised fund of Rs. 23.04 lacs were received by the authorities of the State Government, including the respondent No. 2. Following the complaints, the Joint Director (Finance) of the State of U. P. visited Mirzapur to find out substance in the complaints of embezzlement against the petitioner. On the basis of the spot-study, the Joint Director perceived embezzlement by the petitioner and felt the necessity of deeper investigation. With this object, the District Magistrate, Mirzapur, by the order dated 20th January, 1994, constituted an Inquiry Committee comprising of Senior Treasury Officer, Mirzapur, District Supply Officer, Mirzapur and the Chief Development Officer, Mirzapur, as is evident from Annexure-3 to the petition. The committee made Investigation, examined various relevant documents and made enquiries from the petitioner as well as other relevant persons connected with affair. During the enquiry held by the Committee, the Joint Director (Finance) was also present. On the basis of material before it, the Committee took the view that it appeared to be a case of well-planned conspiracy to embezzle Rs. 23.04 lacs wherein, besides the petitioner, junior clerk of the office of the District Programme Officer, Mirzapur, Sri Shyam Murari and proprietor of supplier firm M/s. Amar Nath Agrahari of Mirzapur were also suspected to have been involved.
18. On 22nd January, 1994, on the basis of the information collected by the committee, the Chief Development Officer, Mirzapur, lodged an F.I.R. at police station, Kotwali, district Mirzapur, against the petitioner. Shyam Murari, Junior Clerk and Amar Nath Agrahari under Section 409/419/420/465/466/467/468/471, I.P.C., and Section 13(2) of Prevention of Corruption Act. A copy of the said F.I.R. dated 22.1.1994 is Annexure-5 to the writ petition. This was followed by the order dated 25th January, 1994 of the State Government, a copy of which is Annexure-7 to the petition. By this order, the petitioner was placed under suspension in connection with proposed disciplinary proceedings relating to charges specified in the order and attached to the office of Chief Development Officer, Mirzapur, during period of suspension. The order also appointed Smt. Deepa Singh Bagai, I.A.S., Director, Bal Vikas Seva Evam Pushtahar, Uttar Pradesh, as Inquiry Officer requiring her to submit the enquiry report within three weeks.
19. Then, Inquiry Officer issued a charge-sheet containing eight charges listing various alleged commissions and omissions constituting embezzlement which was, according to the averments made in paragraph 18 of the petition, served upon the petitioner on 16th April, 1994. A copy of the charge-sheet is appended to the petition as Annexure-8. T h e charge-sheet was accompanied by documents proposed to be relied upon against the petitioner. But, the petitioner alleges that all the documents sought to be relied upon against her were not enclosed along with the charge-sheet. The charge-sheet required the petitioner to submit written reply within 15 days and warned the petitioner that in case she failed to do so, it would be presumed that she had nothing to say in the matter. The charge-sheet further Informed the petitioner that if she wanted to appear in person and make submissions, she should notify so in her reply. It further informed the petitioner that if she wanted to produce any evidence or cross-examine any witness, she should notify their names and address and also submit gist of their prospective statements along with the reply.
20. The petitioner did not submit her reply. She did not notify that she wanted to appear in person and make submission. She also did not notify as to whether she wanted to produce any witness or cross-examine any witness or witnesses. She also did not submit the gist of the proposed statements of her witnesses. But, as is alleged in the petition, she made representations demanding certain documents.
21. On the failure of the petitioner to file her reply, a notice from the Inquiry Officer was published in the daily newspaper, a copy of which is appended to the petition as Annexure-10. A perusal of this notice discloses that the charge-sheet was served on the petitioner twice, firstly, on 7.4.1994 and secondly, on 16.4.1994 which was confirmed by her in her letter dated 22.4.1994. According to notice, although all the documents referred to in the charge-sheet were served on the petitioner along with charge-sheet, the desired documents were again made available to her by the District Programme Officer, Mirzapur through letter dated 16th April, 1994. Annexure-10 also discloses that the petitioner was attached with the office of the Chief Development Officer, Mirzapur, but he had intimated that the petitioner had not joined there and was not attending the office. Drawing attention of the petitioner to the fact that she had not replied to the charges despite desired evidence having already been made available to her, the notice once again called upon her to submit reply/written explanation within a week of the publication of the notice positively and warned that on her failure to do so, departmental enquiry shall proceed ex parte and ex parte report would be submitted to the Government.
22. On behalf of the respondents a supplementary counter-affidavit, sworn by Smt. Sandhya Tomar, Deputy Director, Integrated Child Development Services, U. P., Lucknow, has been filed. To this supplementary counter-affidavit, a letter from the Deputy Secretary of the Government of U. P. dated 6th April, 1994 addressed to Smt. Deepa Singh Bagai, Inquiry Officer, is appended as Annexure-S.C.A. 1. By this letter, concern was expressed about the delay in the conduct of the inquiry; and, keeping in view the gravity of the matter, the Inquiry Officer was required to conduct the enquiry expeditiously and called upon to submit the enquiry report in every event latest by 11th April, 1994.
23. In obedience to the direction contained in the letter dated 6th April, 1994, the Inquiry Officer submitted an ad interim report dated 13th April, 1994, on the basis of material then available. A photo-copy of the ad interim report dated 13th April. 1994 together with covering letter of the same date has been filed alongwith the affidavit of Km. Alka Rani, District Programme Officer, Allahabad, filed on behalf of the respondent. It is Annexure-1 to the affidavit. A perusal of the said ad interim report reveals that the Inquiry Officer examined the report of the Committee, constituted by the District Magistrate, Mirzapur, vide order dated 20th January. 1994 and comprising Senior Treasury Officer, Mirzapur, District Supply Officer, Mirzapur and the Chief Development Officer, Mirzapur, and also other material available and mentioned in the charge-sheet issued to the petitioner and opined that out of eight charges, seven charges were fully proved and the 8th charge was partly proved. Thus, the Inquiry Officer recommended that since the petitioner was on probation her period of probation be not extended and decision to terminate her services be taken at the Government level.
24. From the perusal of the averments made in the supplementary counter-affidavit, sworn by Smt. Sandhya Tomar, filed on behalf of the respondents, and annexures thereto. It transpires that pending decision by the Government on her recommendation that the probation of the petitioner be not extended and decision to terminate her services be taken at Government level, the Inquiry Officer continued her efforts to complete the inquiry. She sent to the Director of the Information Department of the State of Uttar Pradesh, Lucknow a letter dated 28th July, 1994 enclosing therewith a press notice addressed to the petitioner for publication in the daily newspapers. A photocopy of the said letter dated 28th July, 1994 along with press notice is Annexure-S.C.A. 3, to the supplementary counter-affidavit. The press notice purported to remind the petitioner that she was suspended vide order dated 25th January, 1994 and attached with the Chief Development Officer, Mirzapur, that the charge-sheet had already been served on her on 7th April, 1994 and 16th April. 1994, which had been confirmed by her in her letter dated 22nd April, 1994 ; that though the documents referred to in the charge-sheet had already been served along with charge-sheet, evidence desired by her was again furnished to her through the letter of the District Programme Officer, Mirzapur, dated 16th June, 1994. The notice further reminded the petitioner that despite her attachment there, she did not join at the office of the Chief Development Officer, Mirzapur and was not attending the office. It also reminded the petitioner that despite desired evidence having been furnished, she had not submitted her reply to the charges against her. In the end, notice called upon the petitioner to submit her reply/written explanation, positively, within one week of the date of the publication of the notice, and warned that in case she failed to do so, ex parte report of the departmental inquiry will be submitted to the State Government.
25. Apart from getting aforesaid notice to the petitioner published in the newspapers, it appears, the Inquiry Officer also got notice affixed on the official residence of the petitioner as is evident from the letter of the District Programme Officer, Mirzapur, dated 1st August, 1994, a photo copy whereof is Annexure-S.C.A. 4 to the supplementary counter-affidavit. The petitioner, according to the averments made in the supplementary counter-affidavit, once again failed to submit her reply to the charges and to participate in the proceedings of departmental inquiry.
26. Then, the Inquiry Officer addressed to the Secretary. U. P. Government, a confidential letter dated 16th August, 1994, a photo copy, whereof is Annexure-S.C.A. 2 to the supplementary counter-affidavit and Annexure-16 to the writ petition, informing him that despite due service of the charge-sheet, supply of relevant documents demanded and lapse of more than a month, the petitioner had not sent her reply to the charges, which made it clear that the petitioner was not co-operating with the inquiry. Ultimately, reiterating her ad-interim report dated 13th April. 1994, sent along with her confidential D.O. letter of the same date, the Inquiry Officer recommended the termination of the services of the petitioner.
27. Eventually, by the impugned order dated 5th December, 1994, a copy of which is Annexure-15 to the petition, the services of the petitioner were terminated by the respondent No. 1 in exercise of powers under the U. P. Temporary Government Servant (Termination of Service) Rules. 1975. The said order notified to the petitioner that her services were no longer required, and that her services were to be deemed to have come to an end with effect from the date of the receipt of the order. Further, the order directed that petitioner would be entitled to one month's salary and allowances in lieu of statutory notice of one month.
28. In the above back-drop, the petitioner, in substance, contends that :
(a) impugned order is punitive. It is not an order of termination simpliciter as it has been passed after regular inquiry ;
(b) impugned order has been passed without giving any opportunity to defend rendering it void ; and
(c) In any event, the order suffers from the vice of discrimination, forbidden by provisions of Articles 14 and 16 of the Constitution of India, inasmuch as juniors to her have been allowed to continue in service.
29. On the other hand, the stand of the respondent No. 1 is :
(i) that impugned order has been passed by the competent authority in public interest, on overall assessment of work, conduct, efficiency and suitability of the petitioner for her continuance in service, under the terms and conditions of her service. It simply terminates the services of the petitioner and does not entail any evil or penal consequences;
(ii) that the petitioner was afforded ample opportunity to defend, but she did not avail opportunities given to her. Therefore, the order cannot be faulted on that ground ; and
(iii) that there is no factual foundation in the writ petition to sustain the plea of violation of Articles 14 and 16 of the Constitution of India. Otherwise also, on the facts and In the circumstances of the case, the provisions of Articles 14 and 16 are not attracted as contended by the petitioner.
30. To buttress, respective contentions of the parties, their learned counsel Shri Ashok Khare and Shri Ashok Mehta, invited the attention to the following decisions of the Hon'ble Supreme Court rendered in Parshotam Lal Dhingra v. Union of India, AJR 1958 SC 30 ; State of Bihar v. Gopi Kishore Prasad, AIR I960 SC 689 ; State of Orissa and another v. Ram Narayan Das. AIR 1961 SC 177 ; Madan Gopal v. State of Punjab and others. AIR 1963 SC 531 ; Jagdish Mitter v. Union of India. AIR 1964 SC 449 ; Moti Ram Deka and others v. General Manager, N.E.F. Railway and another, AIR 1964 SC 600 ; Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854 : A. G. Benjamin v. Union of India. AIR 1967 (1) LLJ 718 : State of Punjab and another v. Sukh Raj Bahadur, AIR 1968 SC 1089 ; State of Bihar and others v. Shiva Bhikshuk Mishra, (1970) 2 SCC 871 Shamsher Singh v. State of Punjab and another, (1974) 2 SCC 831 : Ravindra Kumar Mishra v. U. P. State Handloom Corporation Ltd. and another, AIR 1987 SC 2408 ; State of U. P. and another v. Kaushal Kishore Shukla, (1991) 1 SCC 691 ; Triveni Shanker Saxena v. State of U. P. and others, AIR 1992 SC 496 : 1992 All LJ 234 ; Commissioner, Food and Civil Supplies, Lucknow and another v. Prakash Chandra Saxena and another.
(1994) 5 SCC 177 ; Ram Chandra Tripathi v. U. P. Public Services Tribunal IVth and others, JT 1994 (2) SC 84 and M. P. Hast Shilpa Vikas Nigam Ltd. v. D. K. Jain and others.
(1995) 1 SCC 638 : JT 1995 (1) SC 198.
31. It is unnecessary to examine all the decisions cited at Bar as the Hon'ble Supreme Court has already delved and surveyed the vast tract of its decisions from Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, to Ravindra Kumar Mishra v. U. P. State Handloom Corporation Ltd. and another. AIR 1987 SC 2408 in State of U. P. and another v. Kaushal Kishore Shukla, JT 1991 (1) SC 108, wherein it has, inter alia, laid down twin tests for determining the true nature of the order of termination of service of a temporary employee. Summing up law relating to this part of service jurisprudence in paragraph 7 of the judgment, the Hon'ble Supreme Court pronounced thus :
"A temporary Government servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Government Servants. A temporary Government servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant. If it decides to take punitive action it may hold a formal inquiry by framing charges and giving opportunity to the Government servant in accordance with the provisions of Article 311 of the Constitution. Since, a temporary Government servant is also entitled to the protection of Article 311(2) in the same manner as a permanent Government servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now well-settled that the form of the order is not conclusive and it is open to the Court to determine the true nature of the order. In Parshotam Lal Dhingra v. Union of India, a Constitution Bench of this Court held that the mere use of expressions like 'terminate' or 'discharge' is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Government servant is punitive in nature. The Court further held that in determining the true nature of the order the Court should apply two tests namely : (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 : and if either of the tests is satisfied, it must be held that the order of termination of a temporary Government servant is by way of punishment. It must be borne in mind that a temporary Government servant has no right to hold the post and termination of such a Government servant does not visit him with any evil consequences. The evil consequences as held in Parshotam Lal Dhingra's, case (supra), do not include the termination of services of a temporary Government servant in accordance with the terms and conditions of service. The view taken by the Constitution Bench in Dhingra's case has been reiterated and affirmed by the Constitution Bench decisions of this Court in State of Orissa and another v. Ram Narayan Das ; R. C. Lacy v. State of Bihar and others : Champaklal Chimanlal Shah v. Union of India : Jagdish Mitter v. Union of India ; A. G. Benjamin v. Union of India : Shamsher Singh and another v. State of Punjab. These decisions have been discussed and followed by a three Judge Bench in State of Punjab and another v. Shri Sukh Raj Bahadur. "
32. In paragraph 11 of the above decision, the Hon'ble Supreme Court also considered the question whether an order of termination of service of a temporary Government servant is necessarily punitive in nature if before passing the order preliminary inquiry into allegations against the temporary Government servant is held or where a regular inquiry is held but dropped or abandoned. After noticing its earlier decision, the Hon'ble Supreme Court authoritatively ruled as below :
"It is erroneous to hold that where a preliminary enquiry into allegations against a temporary Government servant is held or where a disciplinary enquiry is held but dropped or abandoned before the issue of order of termination, such order is necessarily punitive in nature."
33. Another important aspect considered and decided by the Hon'ble Supreme Court in the said decision relates to applicability of principle of equality enshrined under Articles 14 and 16 of the Constitution of India where out of several temporary employees working in the department, service of a senior is terminated and juniors are allowed to continue in service. Paragraph 5 of the judgment contains the pronouncement. It reads as below :
"If out of several temporary employees working in a department, a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service. Such a procedure does not violate principle of equality, enshrined under Articles 14 and 16 of the Constitution. If a junior employee is hardworking, efficient and honest his services could not be terminated with a view to accommodate the senior employee even though he is found unsuitable for the service. If this principle is not accepted there would be discrimination and the order of termination of a junior employee would be unreasonable and discriminatory. On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service."
34. The decision in State of U. P. and another v. Kaushal Kishore Shukla (supra) was followed consistently in Triveni Shanker Saxena v. State of U. P. and others, AIR 1992 SC 496 ; Ram Chandra Tripathi v. U. P. Public Service Tribunal IVth and others, Lucknow, JT 1994 (2) SC 84 and Commissioner, Food and Civil Supplies, Lucknow, U. P. and another v. Prakash Chandra Saxena and another, (1994) 5 SCC 177. Another decision of the Hon'ble Supreme Court in M. P. Hasta Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and others, (1995) 1 SCC 638, is also on the same line.
35. For determining whether penal element is involved in termination of service of a Government servant, distinction between two classes of Government servants, namely, those who have right to or lien upon post held by them and those who have no such right, may be drawn. In case where a Government servant has a right to hold or lien upon the post, mere fact of termination of his service will be deemed to be penal, whether any reason therefor is assigned or not. On the other hand, termination of service of such Government servant who has no right to or lien upon the post held by him, without assigning any reason, will not be ipso facto penal. A Government servant appointed to hold a post, temporary or substantive, on temporary basis, acquires no right to or lien upon the post. Therefore, mere termination of such Government servant, except in case of fixed-term appointment, without assigning any reason, will not be deemed to be penal.
36. Infliction of evil/penal consequences connotes and implies in it tangible loss of benefits already acquired, such as. 'withholding a part of salary earned', 'loss of seniority', 'chances of future promotion in substantive rank', (if held any), 'forfeiture of the proportionate pension due for past services', or 'any stigma is added to the order' entailing loss of prospect of future employment, etc. Further, evil/penal consequences must flow from the order itself. Where consequences are not evil/penal it hardly matters that termination takes place as a result of allegations or imputations or after holding an 'informal inquiry' or if 'formal inquiry1 initiated and dropped or could not be completed on account of non-co-operation of the Government servant.
37. Now the three contentions raised by the petitioner may be dealt with in seriatim. The first contention is that the impugned order is not an order of termination simpliciter. But it is punitive in nature as it has been passed after 'formal inquiry'.
38. A conjoint reading of paragraphs 1 and 2 of the appointment order dated 13th March, 1992 (Annexure-2 to the petition) leaves no room for doubt that the petitioner was appointed on the temporary post of the District Programme Officer purely on temporary basis and her services were liable to be terminated at any time on one month's notice or one month's pay in lieu thereof. The petitioner accepted the said appointment with eyes wide open. Thus, the contract of service between her and the Government came into existence, and under the terms of the contract, her services were liable to be terminated at any time on one month's notice or one month's pay in lieu thereof.
39. Further, it is not disputed that the provisions of U. P. Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter called the Termination of Service Rules, 1975) were applicable to the petitioner. Under Rule 3, notwithstanding anything to the contrary in any existing rules or orders, the services of a Government servant in temporary service are liable to termination at any time by one month's notice in writing given by the appointing authority to the Government servant. Under the rule, the Government may terminate the services of the Government servant forthwith. But, on such termination, the Government servant shall be entitled to a sum equivalent to the amount of his pay plus allowances, if any, for the period of notice or, as the case may be, for the period by which such notice falls short of one month at the same rates at which he was drawing them Immediately before termination of service.
40. Therefore, the services of the petitioner could validly be terminated under the terms of the contract of service, emanating from the appointment and acceptance thereof, as well as under Rule 3 of the Termination of Service Rules, 1975 regulating the terms and conditions of service of the petitioner. Neither any plea to that effect is raised nor is there any material on record that the petitioner ever acquired any status better than that of a temporary Government servant. Her appointment was purely temporary on temporary post and she ever continued to be so.
41. It is well-settled that a temporary Government servant has neither any right to nor lien upon the post held by him. Therefore, the petitioner cannot be held to have any right to or lien upon the post of District Programme Officer in pursuance of her appointment. The State Government terminated the services of the petitioner by the impugned order dated 5th December. 1994 (Annexure-15 to the petition) in exercise of powers of Termination of Service Rules, 1975, with effect from the date of receipt of the order by her. The order declared that she would be entitled to one month's salary and allowances etc. in lieu of statutory notice of one month. The impugned order as it reads is totally innocuous. It does not stigmatise the petitioner in any manner. No evil or penal consequences flow from the order either. But, the form of termination order is not conclusive for determining the true nature of the order. Despite its innocuous appearance, the termination order may otherwise be found to be punitive in nature.
42. For determining the true nature of the impugned order and to ascertain whether the action of the State Government against the petitioner is punitive in nature, the twin tests laid down by the Hon'ble Supreme Court in Parshotam Lal Dhingra v. Union of India (supra), and reiterated in State of U. P. v. Kaushal Kishore Shukla (supra), have to be applied. If the case satisfies either of the two tests, then it must be held that the order is punitive. The first test is whether the temporary Government servant had a right to the post or rank. Testing on this touchstone, it cannot be held that the petitioner had any right to or lien upon the temporary post of District Programme Officer as her appointment was purely temporary on the temporary post and liable, to termination any time on one month's notice or one month's pay in lieu thereof. Her services were also liable to be terminated under the provisions of Termination of Service Rules. 1975 which were applicable to her. Thus, the contention that the impugned order is punitive in nature fails to satisfy the first test.
43. Coming to the second test : whether the petitioner has been visited with any 'evil consequence'? The petitioner can be held to have been visited with evil consequences only if it is proved that she has lost any benefit already accrued to her, for example, withholding of any part of a salary earned by her, loss of seniority, chances of future promotion in substantive rank, (if held any), forfeiture of proportionate pension due for past services or any stigma is added to the impugned order, entailing loss of prospect of future employment. The impugned order does not withhold any part of salary earned by the petitioner. The appointment of the petitioner being purely temporary on temporary post of District Programme Officer, there is no question of loss of seniority of the petitioner in substantive rank as the petitioner did not hold any substantive rank. The impugned order also does not result in forfeiture of any proportionate pension due for her past services as no pension is admissible for her past temporary services on a temporary post. In the impugned order, there is no such aspersion or reflection on the conduct or efficiency of the petitioner which would adversely affect the future prospect of employment or promotion, etc.
44. In the petition there is no factual foundation with regard to any tangible loss of any benefit already acquired by the petitioner and no loss of any benefit already acquired by the petitioner or stigma entailing loss of prospect of future employment was demonstrated during the course of arguments either. In the circumstances, it cannot be held that by the impugned order, the petitioner has been visited with evil consequences. The contention of the petitioner that the impugned order is not an order of termination simpliciter as it has been passed after regular inquiry into allegations against her is also not sustainable on facts in view of the dictum of the Hon'ble Supreme Court in the case of State of U. P. v. Kaushal Kishore Shukla (supra). According to this decision, it will be erroneous to hold that the impugned order of termination is necessarily punitive in nature merely because it was passed after institution of formal inquiry. It is true that by the order dated 25th January, 1994 (Annexure-7 to the petition), whereby the petitioner was placed under suspension, a disciplinary inquiry on the charges specified in the order was proposed and Smt. Deepa Singh Bagai was appointed as Inquiry Officer, who was required to submit her report within three weeks. But, by means of the letter from the State Government dated 6th April, 1994 (Annexure-S.C.A. 1) the Inquiry Officer was required to submit report in every event by 11th April, 1994, i.e., before service of the charge-sheet on the petitioner. According to averment of the petitioner in paragraph 18 of the petition, the charge-sheet was served on her on 16th April, 1994. Requiring the Inquiry Officer to submit report in any event by 11th April, 1994 is indicative of the fact that the process of consideration of suitability of the petitioner for the purpose of allowing her temporary services on temporary post of District Programme Officer to continue had already commenced.
45. In pursuance of the letter from the State Government dated 6th April, 1994, the Inquiry Officer submitted an ad-interim report dated 13th April, 1994, before service of charge-sheet on the petitioner on 16th April, 1994, on the basis of material then available, opining that out of eight charges seven charges were fully proved and 8th charge was partly proved. In the report, the Inquiry Officer recommended that since the petitioner was on probation, her period of probation be not extended and decision to terminate her services be taken at Government level.
46. Pending decision of the Government on the recommendation of the Inquiry Officer for not extending the period of probation of the petitioner and for decision to terminate her services, the Inquiry Officer continued her effort to complete the inquiry, but failed to do so. This led her to write a confidential letter dated 16th August, 1994 (Annexure-S.C.A. 2 and Annexure-16 to the petition), informing Government about the failure of the petitioner to send reply to the charges, despite due service of charge-sheet and supply of relevant documents demanded, and lapse of sufficient time, and her non-co-operation with the inquiry. In this letter, she reiterated her interim report dated 13th April. 1994, and recommended the termination of services of the petitioner.
47. The confidential letter dated 16th August, 1994, which only reiterated the interim-report dated 13th April. 1994 and recommendation of termination of the services of the petitioner, contains no fresh material. There is nothing on record to show that after the submission of the interim report dated 13th April, 1994, submitted before the service of the charge-sheet on the petitioner, and writing of the confidential letter dated 16th August, 1994, reiterating the interim report and recommendation for termination of the services of the petitioner, the State Government Insisted upon the Inquiry Officer to pursue the inquiry and bring it to its logical consequence. It appears, the inquiry was either dropped or abandoned.
48. The interim report dated 13th April. 1994 and the confidential letter dated 16th August, 1994 culminated into the impugned order dated 5th December, 1994 terminating the services of the petitioner by the State of Uttar Pradesh in exercise of its power under the Termination of Service Rules, 1975. Thus, inescapable conclusion is that the impugned order is an order of termination of services of the petitioner simpliciter.
49. Even if the impugned order is taken to be an order passed as a consequence of completion of the formal inquiry. It would be liable to be struck down only if it is found that it was passed without giving opportunity to the petitioner to defend, guaranteed by the principles of natural justice as well as constitutional provisions in that regard. This aspect is covered by the second contention of the petitioner to the effect that the impugned order is void inasmuch as it Has been passed without giving any opportunity.
50. The petitioner admits that charge-sheet was served upon her on 16th April. 1994 though according to the respondents, it was served on 7th April, 1994 also. The fact that the charge-sheet was accompanied by the documents proposed to be relied against the petitioner is not disputed by the petitioner though she alleges that all the documents sought to be relied upon against her were not enclosed. The charge-sheet required the petitioner to submit reply within 15 days and also warned that in case she failed to do so it would be presumed that she had nothing to say in the matter. The charge-sheet further informed the petitioner that if she wanted to appear in person and make submission she, should notify so in her reply. The petitioner was also informed that if she wanted to produce any witness or cross-examine any witness she should notify their names and address and also submit gist of their prospective statements along with reply.
51. Admittedly, the petitioner did not submit her reply/written explanation. She did not notify that she wanted to appear in person and make submission. She did not notify as to whether she wanted to produce any witness or cross-examine any witness or witnesses. She also did not submit gist of the proposed statements of her witnesses. She only made representations demanding certain documents.
52. Again, through a notice published in the dally newspaper (Annexure-10 to the petition), the petitioner was called upon to submit reply/written explanation within a week of the publication of the notice positively and warned that on her failure to do so departmental inquiry shall proceed ex parte and ex parte report would be submitted to the Government. Indisputably, the petitioner did not submit re ply/written explanation.
53. In July, 1994, again, a Press notice from the Inquiry Officer was published in the newspaper calling upon the petitioner to submit her reply/written explanation positively within a week of the publication of the notice and warning her that in case she fails to do so ex parte report of the departmental inquiry will be submitted to the State Government. The notice was also got affixed on the official residence of the petitioner. There is no dispute that the petitioner failed to submit her reply to the charges and participate in the proceedings of departmental inquiry despite notice through publication in the newspaper and affixation thereof on her official residence.
54. Intransigent attitude adopted by the petitioner in not submitting reply to the charge-sheet despite repeated opportunities, failure to appear before the Inquiry Officer, non-co-operation with and non-participation in the inquiry led the Inquiry Officer to hold the charges against the petitioner proved on the basis of material which was available before her.
55. When called upon, the charged Government servant is legally obliged to submit reply/explanation and participate in and co-operate with any informal or formal inquiry against him. Adventure of non-submission of reply/explanation, non-participation and non-cooperation by the charged Government servant will be at his peril, and he must take the consequences. Failure to submit reply/explanation, non-participation and non-co-operation may legitimately lead the Inquiry Officer to hold charges proved on the basis of material available before him. This will not constitute denial of opportunity resulting in violation of either principles of natural justice or the provisions of Article 311 of the Constitution of India. Requirement of giving opportunity flowing from either principles of natural justice or constitutional guarantee or any other statutory provision cannot be stretched to such an extent as to discredit itself.
56. Having failed to avail repeated opportunities, as noticed earlier, the petitioner cannot be permitted to turn about and complain lack of opportunity to defend resulting in negation of principles of natural justice or violation of constitutional provision mandating grant of opportunity to defend.
57. Upon scrutiny of the acts over which the petitioner and the respondents had control and the events over which they did not have control, the factual position with regard to first and second contention of the petitioner crystallises as below :
(a) that the petitioner was purely a temporary Government servant appointed on temporary post : that she had no right to or lien upon the post held by her : that her services were terminated by an innocuous order of termination entailing no penal consequences : and
(b) that the petitioner was given repeated opportunities but she failed to avail them ; and that requirement of giving opportunity to the petitioner to defend was fully satisfied.
58. Now the third, and last, contention, regarding the alleged discrimination may be considered. This contention of the petitioner is founded on the pleadings contained in paragraphs 31, 32. 33 and 34 of the petition which are reproduced below :
"31. That in case the recital of the services being no longer required is correct, then even in such a case the services of the junior most person ought to have been dispensed with first. It is specifically stated that the petitioner alone has been picked out for her services being terminated from amongst the eight persons granted appointment by means of office order dated 13.3.1992."
"32. That all the persons specified in the notification of the U. P. Public Service Commission dated 1.2.1992 as also in the office order dated 13.3.1992 continue to be in service and are discharging function on the post of District Programme Officer and it is the petitioner alone whose services have been dispensed with."
"33. That the seniority of suitable candidate selected at the selection conducted by the U. P. Public Service Commission is based upon the order of merit. Person placed, below the petitioner in order of merit, i.e., person who are much junior than the petitioner continues to remain in service on the post of District Programme Officer and it is the petitioner alone whose services have been dispensed with."
"34. That the impugned order of termination has been passed in an arbitrary and discriminatory exercise of power and violating Article 14 of the Constitution."
59. In answer to the above pleadings, the stand taken on behalf of the respondents in paragraph 27 of the counter-affidavit, sworn by Sri Hirdaya Shanker Chaturvedi, is that the competent authority came to the conclusion that the petitioner was not fit to be continued in service as her work and conduct were unsatisfactory. The termination was for her unsuitability or unfitness and not by way of punishment as a punitive measure and one in terms of order of appointment and also to the rules. Further stand of the respondents is that in the facts and circumstances of the case and the principle of law applicable thereto, the principle of "last come first go" will not apply.
60. In State of Uttar Pradesh and another v. Kaushal Kishore Shukla (supra), the Hon'ble Supreme Court had occasion to deal the facts and circumstances and the contention identical to the facts and circumstances of this case and the contention of violation of principle of "last come first go" and the principle of equality, enshrined under Articles 14 and 16 of the Constitution of India. In paragraph 5 of its decision, the Hon'ble Supreme Court held as under:
"In our opinion, the principle of 'last come first go' is applicable to a case where on account of reduction of work or shrinkage of cadre, retrenchment takes place and the services of employees are terminated on account of retrenchment. In the event of retrenchment, the principle of 'last come first go' is applicable under which senior in service is retained while the junior's services are terminated. But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with terms and conditions of his service. If out of several temporary employees working in a department, a senior is found unsuitable on account of his work and conduct, ft is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service. Such a procedure does not violate principle of equality, enshrined under Articles 14 and 16 of the Constitution."
61. The above dictum of the Hon'ble Supreme Court answers the third contention of the petitioner completely. Thus, it is not necessary to dilate further on the third contention except to observe that the impugned order having not been passed by way of retrenchment on account of reduction of work or shrinkage of cadre cannot be faulted on the basis of said contention.
62. On the facts and circumstances, and for the reasons given above, no interference by this Court in exercise of its special and extraordinary jurisdiction under Article 226 of the Constitution of India is warranted, and the petition deserves to be dismissed.
Order Thus, the writ petition is dismissed. There is no order as to costs.