Madhya Pradesh High Court
Brajesh Tiwari vs The State Of Madhya Pradesh Thr on 27 October, 2015
1 WP 4834/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No. 4834/2015
Brajesh Tiwari
Vs.
State of M.P. and others
--------------------------------------------------------------------------------
Shri Mahesh Goyal Advocate for the petitioner.
Shri Amit Bansal, Dy.GA for the respondent No.1/State.
Shri Vivek Jain, Advocate for respondents No. 2 to 5.
--------------------------------------------------------------------------------
ORDER
( 27/ 10 /2015) This petition filed under Article 226 of the Constitution challenges the legality, validity and propriety of the order dated 22.7.2015 (Annexure P-8) whereby the petitioner is removed from service by giving him one month's pay in lieu of one month's notice.
2. The petitioner was initially appointed on job training by order dated 26.11.2012. The petitioner successfully completed said training. Thereafter, he was appointed on probation by order dated 5.2.2014 (Annexure P-3). Shri Mahesh Goyal, learned counsel for the petitioner, contends that this order itself shows that the petitioner successfully completed the training and, therefore, he was appointed on probation. Shri Goyal further contends that the petitioner along with other 26 employees submitted a joint representation before the General Manager, Bhind Circle on 7.7.2015. The respondents were annoyed by said representation because the petitioners have asked for redressal of their genuine grievances. Thereafter, the respondents sent a show cause notice dated 9.7.2015 (Annexure P-6) to the petitioner. The petitioner preferred his detailed reply on 14.7.2015 (Annexure P-7). Shri Goyal submits that the 2 WP 4834/2015 impugned order of removal dated 22.7.2015 came as a bolt from blue to the petitioner. By taking this Court to the show cause notice and the order dated 22.7.2015, it is urged that the impugned order is punitive and stigmatic in nature. Shri Goyal also relied on Condition No.4 of the order dated 5.2.2014. He submits that if petitioner's work was not found satisfactory, his services could have been terminated by the respondents. However, a conjoint reading of show cause notice and the removal order shows that termination is in fact punitive in nature. In support of his contention, he relied on AIR 1999 SC 983 (Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and others) and (2013) 3 SCC 607 (State of Bank of India and others Vs. Palak Modi and another). He also submits that for similarly situated employees, the respondents have decided to adopt the course of instituting a domestic enquiry. Reliance is placed on Annexure P-9 dated 9.7.2015 and the charge sheet filed along with the said document. In nutshell, it is urged that the petitioner's discontinuance is not based on his unsatisfactory performance. On the contrary, the basis to terminate his services was based on his demand (Annexure P-5).
3. Shri Vivek Jain, learned counsel for the respondents- employer relied on the Panchanama (Annexure R-1) prepared on 7.7.2015 at the spot where the petitioner allegedly submitted the representation along with other persons. Shri Jain submits that if Panchanama is read along with the reply to the show notice and pleadings of the writ petition, it will be clear that the petitioner has violated Rule 10 of M.P. Civil Services (Conduct) Rules, 1965 (for short, the "Conduct Rules"). He submits that the judgments relied by Shri Goyal are based on the interpretation of Article 311 (2) of the Constitution of India. The petitioner is an employee of a Company. He, 3 WP 4834/2015 by no stretch of imagination, can claim that he is a "civil post" holder under the State or the Union. By relying on Constitution Bench judgment, AIR 1970 SC 1150 (Dr. S.L. Agarwal Vs. The General Manager, Hindustan Steel Ltd.), it is urged that protection of Article 311 (2) of the Constitution is available only to such employees who are holding civil post under the State/Union. The petitioner, who was probationer in a Company, cannot be treated to be a "civil post" holder. He also relied on (1974) 2 SCC 831 (Samsher Singh v. State of Punjab) and (2002) 1 SCC 520 (Pavendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences and another). To elaborate, on the strength of these judgments, Shri Jain argued that the order impugned cannot be said to be punitive in nature. It is not an outcome of any full fledged domestic enquiry conducted against the petitioner. In absence of a domestic enquiry being conducted, Annexure P-8 cannot be treated as punitive or stigmatic. He placed reliance on para 21 of the judgment of Pavendra Narayan Verma (supra).
4. Shri Jain also relied on Rule 8 (4) of M.P. Civil Services (General Conditions of Service) Rules, 1961. It is urged that the respondents-company has adopted the Conduct Rules and General Condition of Service Rules. If employer finds that the petitioner's services are not useful or he will not turn out to be a useful servant/employee, it is the prerogative of the employer to terminate his services. He submits that in the present case the impugned order shows that it is not stigmatic. Lastly, it is contended that the charge sheet issued in other cases are founded upon different factual matrix/ misconduct. It has nothing to do with the factual matrix of the present case. In nutshell, Shri Jain submits that the petitioner's services were rightly terminated and such termination does not violate any provision of the rule, condition of service or Constitution of India.
4 WP 4834/20155. No other points are pressed by learned counsel for the parties.
6. I have heard the learned counsel for the parties and perused the record.
7. The Apex Court considered the question of validity of termination of probationer in catena of judgments. In Parshotam Lal Dhingra v. Union of India, (AIR 1958 SC 36), a Constitution Bench opined as under:-
"28.... 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 Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."
8. In AIR 1968 SC 1089 (State of Punjab v. Sukh Raj Bahadur), the Supreme Court considered several precedents and culled out following propositions:-
"(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.
(2) The circumstances preceding or attendant on the order of termination have to be examined in each case, the motive behind it being immaterial.
(3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. (5) If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an enquiry officer is appointed, a charge-sheet submitted, explanation called 5 WP 4834/2015 for and considered, any order of termination of service made thereafter will attract the operation of the said article."
9. In State of Bihar v. Shiva Bhikshuk Mishra [(1970) 2 SCC 871], it was held as under:-
"5. We are unable to accede to the contention of the appellant that the ratio of the above decision is that so long as there are no express words of stigma attributed to the conduct of a government officer in the impugned order it cannot be held to have been made by way of punishment. The test as previously laid and which was relied on was whether the misconduct or negligence was a mere motive for the order of reversion or whether it was the very foundation of that order. In Dhaba case [(1969) 3 SCC 603] , it was not found that the order of reversion was based on misconduct or negligence of the officer. So far as we are aware no such rigid principle has ever been laid down by this Court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a government officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct.... It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order."
(emphasis supplied)
10. In Samsher Singh v. State of Punjab, [(1974) 2 SCC 831), it was held that "no abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a 6 WP 4834/2015 reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside."
11. It is apt to note that Krishna Iyer, J., who agreed with the learned Chief Justice, made the following concluding observations in Samsher Singh (supra) :-
"160.... Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however harmlessly the order may be phrased? And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be 'the substance of the matter' and the 'foundation' of the order. When does 'motive' trespass into 'foundation'? When do we lift the veil of 'form' to touch the 'substance'? When the court says so. These 'Freudian' frontiers obviously fail in the work-a-day world and Dr Tripathi's observations in this context are not without force."
12. In Gujarat Steel Tubes Ltd. v. Mazdoor Sabha, [(1980) 2 SCC 593, the Supreme Court opined that "a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are 7 WP 4834/2015 recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non- injurious terminology is used. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge."
13. A probationer's termination order was questioned in Anoop Jaiswal v. Govt. of India [(1984) 2 SCC 369]. The Apex Court held as under:-
"This Court considered the question whether termination of the appellant's service, who was appointed to Indian Police Service and was on probation, by invoking Rule 12(b) of the Indian Police Service (Probation) Rules, 1954 was punitive in nature. The facts found by the Court were that while undergoing training at National Police Academy, Hyderabad, the Probationary Officers had delayed attending the ceremonial drill practice. The Director of the Academy called for explanation from all the probationers. The appellant was accused of having instigated others not to join ceremonial drill practice on time. He denied the allegation. Thereafter, his service was terminated by a non-stigmatic order. The appellant challenged the termination of his service on the ground of violation of Articles 14 and 311(2) of the Constitution. The writ petition filed by him was summarily dismissed by the Delhi High Court. This Court referred to the averments contained in the pleadings of the parties, the judgments in Parshotam Lal Dhingrav. Union of India [AIR 1958 SC 36 : 1958 SCR 828] , Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] , State of Punjab v. Sukh Raj 8 WP 4834/2015 Bahadur [AIR 1968 SC 1089 : (1968) 3 SCR 234] , Union of India v. R.S. Dhaba [(1969) 3 SCC 603] , State of Bihar v. Shiva Bhikshuk Mishra[(1970) 2 SCC 871] , R.S. Sial v. State of U.P. [(1975) 3 SCC 111 : 1974 SCC (L&S) 501 : (1974) 3 SCR 754] , State of U.P. v. Ram Chandra Trivedi [(1976) 4 SCC 52 : 1976 SCC (L&S) 542] and I.N. Saksena v. State of M.P. [AIR 1967 SC 1264 : (1967) 2 SCR 496] and held: (Anoop Jaiswal case [(1984) 2 SCC 369 : 1984 SCC (L&S) 256] , SCC p. 379, paras 12-
13) "12. It is, therefore, now well settled 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. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
13. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the gymnasium and acting as one of the ringleaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant.
Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ringleaders were not seriously taken note of. Even though the order of discharge may be non- committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution."
14. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences [(1999) 3 SCC 60, a two-Judge Bench considered the appellant's challenge to the termination 9 WP 4834/2015 of his service after. The Apex Court opined as under:-
"(1) In what circumstances, the termination of a probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive? (2) When can an order of termination of a probationer be said to contain an express stigma?
(3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination? (4) To what relief?
While dealing with the first point, the Court referred to various earlier judgments and observed: (Dipti Prakash Banerjee case [(1999) 3 SCC 60 : 1999 SCC (L&S) 596] , SCC pp. 70-72, paras 19 & 21) "19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab[AIR 1963 SC 531] there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21 : 1999 SCC (L&S) 439] and reference was made to the development of the law from time to time starting from Parshotam Lal Dhingra v. Union of India [AIR 1958 SC 36 : 1958 SCR 828] to the concept of 'purpose of enquiry' introduced by Shah, J. (as he then was) inState of Orissa v. Ram Narayan Das [AIR 1961 SC 177] and to the seven-Judge Bench decision in Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] and to post-Samsher Singh [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] case-law. This Court had the occasion to make a detailed examination of what is the 'motive' and what is the 'foundation' on which the innocuous order is based.
***
21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' [Ed.: The word "founded" is emphasised in the original also.] on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the 10 WP 4834/2015 employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
(emphasis supplied)
23. the Court considered the correctness of the order passed by the High Court which had allowed the writ petition filed by the State and set aside the order passed by the U.P. Public Services Tribunal for reinstatement of the appellant. The competent authority had terminated the appellant's service in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. It was argued on behalf of the appellant that the order by which his service was terminated, though innocuous, was, in fact, punitive in nature because it was founded on the allegation that he had fought with other colleagues and used filthy and unparliamentary language. In the counter-affidavit filed on behalf of the respondents, it was admitted that there was no adverse material against the appellant except the incident in question. The original record produced before the Tribunal revealed that the appellant's service was terminated on account of his alleged involvement in the quarrel between the constables. After noticing various precedents, this Court observed:
(SCC pp. 167-68, paras 27-30) "27. The whole case-law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulum; right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi case [(1976) 4 SCC 52 : 1976 SCC (L&S) 542] that there was a conflict of decisions on the question of an order being a simple termination order or a punitive order, but every time the court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of 'motive' and 'foundation' was always kept in view.
28. The important principles which are deducible on the concept of 'motive' and 'foundation', concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis 11 WP 4834/2015 of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of 'motive'.
29. 'Motive' is the moving power which impels action for a definite result, or to put it differently, 'motive' is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action?
If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry."
15. The judgment of Pavanendra Narayan Verma (supra) was considered by Supreme Court in Palak Modi (supra). It was held as under:-
"The proposition laid down in none of the five judgments relied upon by the learned counsel for the appellants is of any assistance to their cause, which were decided on their own facts. We may also add that the abstract proposition laid down in para 29 in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences [(2002) 1 SCC 520 : 2002 SCC (L&S) 170] is not only contrary to the Constitution Bench judgment in Samsher Singh v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S) 550 : (1975) 1 SCR 814] , but a large number of other judgments--State of Bihar v. Shiva Bhikshuk Mishra [(1970) 2 SCC 871] , Gujarat Steel Tubes Ltd. v. Mazdoor Sabha [(1980) 2 SCC 593 : 1980 SCC (L&S) 197] and Anoop Jaiswal v. Govt. of India [(1984) 2 SCC 369 : 1984 SCC (L&S) 256] to which reference has been made by us and to which attention of the two-Judge Bench does not appear to have been drawn. Therefore, the said proposition must be read as confined to the facts of that 12 WP 4834/2015 case and cannot be relied upon for taking the view that a simple order of termination of service can never be declared as punitive even though it may be founded on serious allegation of misconduct or misdemeanour on the part of the employee."
16. On the basis of these judgments, the following principles can be culled out:-
(i) If a probationer is terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.
(ii) The circumstances preceding or attendant on the order of termination have to be examined in each case.
(iii) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment.
(iv) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.
(v) If there be a full-scale departmental enquiry, charge-sheet is issued, enquiry officer is appointed and then termination order is passed, it will attract the operation of Article 311 of the Constitution.
(vi) Form of termination order is not conclusive/ decisive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct.
(vii) It is open to the Court before which termination order is challenged to go behind the form and ascertain the true character of the order. The Court can apply the doctrine of lifting the veil.
(viii) If findings were arrived at in an enquiry as to misconduct, behind the back of officer or without a regular enquiry, the simple order of termination is to be treated as "founded".
(ix) The factor which impelled the employer to take the action of termination is also important to determine the real nature of the action.
13 WP 4834/201517. The impugned termination order needs to be examined on the anvil of aforesaid principles laid down by the Supreme Court.
18. The condition No.4 of appointment order of petitioner reads as under:-
"The above appointment of assistant Engineer (D) is on provisional basis and subject to satisfactory verification of character antecedents by the police authority and casts, in respect of reserved category, by respective district administration. In case the character antecedent's report of the Assistant Engineer (D) is found adverse, his services are liable to be terminated then and there. On successful completion of probation period and on satisfactory verification of character and antecedent and caste verification, wherever necessary, the Assistant Engineer (D) shall be confirmed on the post of Assistant Engineer (D) by formal order and till then they shall be deemed under probation period."
19. The termination order further shows that the respondents have relied on rule 8(4) of General Conditions of Service Rules. The said rule reads as under:-
"8. Probation.-
* * *
* * *
* * *
(4) The services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant.
20. This is not in dispute between the parties that the petitioner was initially appointed on job training and he successfully completed the said training. Thereafter, he was appointed on probation. On 7.7.2015, a joint representation was preferred by the petitioner and other similarly situated employees working in Bhind, Mehgaon, Lahar and Gohad Division. A plain reading of this representation (Annexure P/5) shows that the employees raised the grievance regarding belated payment of 14 WP 4834/2015 monthly salary. It is informed that the salary of June 2015 has not been paid till date. It is submitted that the Assistant Engineers and Junior Engineers are being humiliated in the meeting and directions were given to cut their salary. Certain officers are in the habit of issuing show cause notices without any justifiable reason. The employees are placed under suspension for no valid reason. Certain examples are also quoted. It is mentioned that certain Asstt. Engineers and Junior Engineers, who are residing in the headquarter were deprived of HRA. The attendance is taken through biomatric machine but employees are required to work much beyond their fixed duty hours. If cell phone is not received at late night, show cause notices are issued. The employees working on contract basis are not getting annual increment etc.
21. In my view, the points raised in the representation are related with service conditions of the employees. The employees have a right to prefer such representation. If there is any anomaly or arbitrariness on the part of the department, every employee has a right to bring it to the notice of the higher authority. If the representation is preferred by the employees seeking redressal of their service grievances, it cannot be treated to be a misconduct or improper conduct.
22. The show cause notice dated 9.7.2015 contains an allegation that the petitioner has used filthy and improper language against the superior officer. The petitioner submitted his detailed reply (Annexure P/7). Thereafter, the termination order dated 22.7.2015 was passed. It is apposite to quote the show cause notice and the termination order, which read as under:-
15 WP 4834/2015dk;kZy; izca/k lapkyd ¼e-{ks-½ Hkksiky dza@,eMh@,eds@LFkk-@xksi@15@676 Hkksiky@fnukad 09-07-2015 izfr] Jh c`ts'k frokjh] izca/kd ¼'kgj½ e-iz-e-{ks-fo-fo-da-fy-
fHk.MA }kjk% egkizca/kd ¼la@l½ fHk.MA fo"k;% daiuh dh lsok ls in~P;qr djus fo"k;dA lanHkZ% egkizca/kd ¼laa@l½ dk iz= dzekad 2284 fnukad 08-07-2015- mijksDr lanfHkZr i= ds ek/;e ls Kkr gqvk gS fd fnukad 07-07-2015 dks lka; yxHkx 4%00 cts o`Rr dk;kZy; ds izkax.k esa leLr izca/kd ,oa lgk izca/kd ¼la@l½ ,df=r djds vkids }kjk egkizca/kd Jh Mh-ch- ok".ksZ; dks vi'kCn ,oa xkfy;ka ¼vLi"V½ gq, vHknzrkiwoZd dk;Z u djus dh /kedh nh xbZ] blds i'pkr~ ¼vLi"V½ dk dk;Z djuk can dj fn;k gSA bl izdkj vkids }kjk xaHkhj vuq'kklughurk dk ifjp; fn;k gS] tks e-iz- flfoy lsok;sa vkpj.k fu;e 1965 ds fu;e 3 dk ?kksj mYya?ku gSA vki vHkh ifjoh{kk vof/k ij py jgs gSa] vkids }kjk cjrh x;h vuq'kklughurk ds fy, D;ska u vkidks daiuh dh lsok ls in~P;qr djus dh dk;Zokgh dh tk;sA bl laca/k esa viuk izR;qRrj 7 fnol esa vius egkizca/kd fHk.M ds ek/;e ls izLrqr djsa] vU;Fkk vkids fo:) izLrkfor dh xbZ dk;Zokgh ij vey fd;k tkosxk] lwfpr gksA ¼foosd iksjoky½ izca/k lapkyd ¼e-{ks-½ e-iz-e-{ks-fo-fo-dai-fy- Hkksiky dk;kZy; % izca/k lapkyd e/; izns'k e/; {ks= fo/kqr forj.k daiuh fyfeVsM ¼e/;izns'k 'kklu dk midze½ iathd`r dk;kZy;&fctyh uxj dkWyksuh] fu"Bk ifjlj] xksfoaniqjk] Hkksiky 462023 Qksu vkfQl 0755&2602033&34 QSDl&2589821 osclkbV % www.mpcz.co.in lhvkbZ,u --U40109MP2002SGC015119
-------------------------------------------------- ekuo lalk/ku foHkkx ¼ ISO 9001:2008 izekf.kra½ dz-izla@e-{ks-@eklaiz@LFkk-@HR-III/765 Hkksiky] fn-22&07&2015 @@vkns'k@@ Jh c`ts'k frokjh lgk;d ;a=h&izca/kd ds in ij lh/kh HkrhZ ls p;fur gksdj daiuh ds vkns'k dz-10156&57 fnukad 26&11&2012 ls izca/kd 16 WP 4834/2015 ¼izf'k{kq½ ds in ij fu;qDr fd, x, FksA N% ekg ds eSnkuh izf'k{k.k ds i'pkr~ mudh dk;Ziz.kkyh larks"kizn u gksus ds dkj.k mudh izf'k{k.k vof/k daiuh ds vkns'k dz-7425 fnukad 26&08&2013 ls vkxkeh N% ekg ds fy, c<+kbZ xbZ FkhA rRi'pkr~ Jh frokjh dh c<+kbZ xbZ izf'k{k.k vof/k iw.kZ gksus ds mijkar nks o"kZ dh ifjoh{kk vof/k ij mUgsa daiuh ds vkns'k dz- MD/MK/01/Estt./M- HR-iii/14441 fnukad 05&02&2014 ds }kjk lapk@la/kk laHkkx] ygkj es inLFk fd;k x;k FkkA rnqijkar daiuh }kjk iz'kklfud vk/kkj ij Jh frokjh dk LFkkukarj.k vkns'k fnukad 26&06&2015 ls fHk.M ¼'kgj tksu½ fd;k x;kA 2- vkSj ;g gS fd Jh frokjh ifjoh{kk vof/k ds nkSjku mUgsa lkSais x;s nkf;Roksa ds izfr ftEesnkj ugha gSaA egkizca/kd ¼lapk@la/kk½ o`r] fHk.M us bl dk;kZy; dks voxr djk;k gS fd fnukad 07&07&2015 dks Jh frokjh o`r dk;kZy; ds izkax.k esa leLr izca/kd ,oa lgk;d izca/kdksa dks ,d= djds i=dkj ,oa ehfM;k ds lkFk vk;s vkSj vlalnh; Hkk"kk dk iz;ksx dj egkizca/kd ¼lapk@la/kk½ o`r] fHk.M dks Kkiu nsdj] Kkiu esa vafdr fcUnqvksa ij rRdky dk;Zokgh djus gsrq dgk x;k ,oa rRdky dk;Z u djus dh fLFkfr esa gM+rky ij tkus dh /kedh nsdj muds lkFk vHknzrkiwoZd O;ogkj fd;k x;kA mDr ?kVuk dk iapukek cuk;k x;kA 3- vkSj ;g fd bl dk;kZy; ds i= dza-676 fnukad 09&07&2015 ds ek/;e ls Jh frokjh }kjk dh xbZ mi;qZDr vuq'kklughurk ds fy, mUgsa daiuh dh lsok ls in~P;qr djus gsrq uksfVl tkjh fd;k x;k FkkA 4- vkSj ;g fd Jh frokjh us muds i= dz-14&07&2015 ds ek/;e ls mijksDr uksfVl ds fo:) viuk izR;qRrj izLrqr fd;k x;k] ftlesa mUgksaus ys[k fd;k gS fd muds }kjk fOgfly Cyksvj ds :i esa dbZ voljksa ij dk;Z fd;k x;k gS] ftlds dkj.k daiuh ds ofj"B vf/kdkjh muls ukjkt gSa ,oa blh dkj.k ;g dk;Zokgh dh tk jgh gSA Jh frokjh ds izR;qRrj esa fn, x, dkj.k ,oa mudh Hkk"kk ls ;g Li"V gS fd muds }kjk dh xbZ vuq'kklughurk vHknzrk ,oa v'kksHkuh; O;ogkj dk mUgsa dksbZ [ksn ugha gSA vr% mudk izR;qRrj larks"kizn ugha ik;k x;kA 5- vkSj ;g fd daiuh }kjk daiuh dsMj ds uofu;qDr vf/kdkfj;ksa@izca/kdksa dks tkjh vkWQj ysVj esa ifjf'k"V&1 dh df.Mdk 19 esa Li"V mYys[k fd;k x;k gS fd& "Code of Conduct:-
The Assistant Engineer - Trainee (Distribution) will be required to maintain the highest standard of personal conduct and integrity and comply with all organizational policies and procedures as laid down in Madhya Pradesh Civil Services (Conduct) Rules 1965 as adopted by the Company, Any violation of these or any other organizational procedures can result in disciplinary action being initiated against him/her including termination of services from the organization". vkSj ^^mudh lsok,a e-iz-flfoy lsok vkpj.k fu;e 1965 ds varxZr fofu;fer gSa vkSj muds }kjk lQyrkiwoZd dk;Z ugha djus] dk;Z esa :fp ugha ysus ;k vU; ykijokgh ds fy;s muds fo:) fu;ekuqlkj 17 WP 4834/2015 vuq'kklukRed dk;Zokgh dh tk,xhA^^ 6- vkSj ;g fd daiuh ds vkns'k dzekad 14441 fnukad 05&02&2014 ds ifjoh{kk vof/k esa fuUefyf[kr lsok 'krksZ ds rgr bUgsa fu;qfDr iznku dh xbZ Fkh & "The appointment will be on probation for a period of 2 years and the probation period may be extended, at the discretion of company, for a further period of one year if the performance of AE (D) is not found satisfactory. The services of AE (D) whose performance is found unsatisfactory during the period of probation may be terminated by giving one month's notice of one month's pay in lieu of notice"
7- vkSj ;g fd e/; izns'k flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e 1961 ds fu;e 8 ¼4½ ds vuqlkj ^^ifjoh{kk/khu O;fDr dh lsok,a ifjoh{kk dh vof/k ds nkSjku ml fLFkfr esa lekIr dh tk ldsaxh] ;fn fu;qfDr izkf/kdkjh dk ;g er gks fd og ,d mi;qDr 'kkldh; deZpkjh fl) ugha gks ldsxkA 8- vkSj ;g fd Jh c`ts'k frokjh] izca/kd dh ifjoh{kk vof/k esa gh mudk dk;Z vkSj vkpj.k ?kksj vuq'kklughurk ,oa ykijokghiwoZd gksdj e-iz- flfoy lsok ¼vkpj.k½ fu;e 1965 ds fu;e 3] 6 ,oa 7 ds iw.kZr% foijhr jgk gSA 9- vkSj ;g fd Jh frokjh }kjk izLrqr izR;qRrj ,oa izdj.k ds lHkh igyqvksa dk xaHkhjrkiwoZd v/;;u djus ds mijkar ;g ik;k x;k fd Jh c`ts'k frokjh] izca/kd dks daiuh }kjk tkjh vkns'kksa esa mYysf[kr ftu lsok'krksZ ds rgr fu;qDr fd;k x;k Fkk mudk ikyu djus esa Jh frokjh iw.kZr% vlQy jgs gSaA bl izdkj muds }kjk e-iz- flfoy lsok ¼vkpj.k½ fu;e 1965 ,oa e/; izns'k flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e 1961 ds fu;e 8 ¼4½ esa fufgr izko/kkuksa dk mYya?ku fd;k x;k] ftlds QyLo:i Jh frokjh ,d mi;qDr daiuh deZpkjh fl) ugha gks ldsaxsA 10- vr% e-iz- flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e] 1961 ds fu;e 8 ¼4½] e-iz- flfoy lsok ¼vkpj.k½ fu;e 1965 ds fu;e 3] 6 ,oa 7 ds ,oa daiuh ds vkns'k dz-14441 fnukad 05&02&2014 ds izko/kkukuqlkj fu;ekuqlkj ,d ekg dk osru Hkqxrku djrs gq, daiuh dh lsok ls i`Fkd fd;s tkus dk fu.kZ; fy;k x;k gSA 11- vr% ,rn~ }kjk Jh c`ts'k frokjh] izca/kd dks daiuh }kjk ,d ekg dk osru Hkqxrku djrs gq, daiuh dh lsok ls i`Fkd (Remove from Service) fd;k tkrk gSA ¼foosd iksjokj½ izca/k lapkyd
23. In para 2 of the termination order, the employer has relied on a "Panchnama". A finding is given that the 18 WP 4834/2015 petitioner along with certain Managers and Asstt. Managers went to the Circle Office and used unparliamentary language against the superior officer. He reached there with media persons/journalists and threatened to go on strike. In para 3 of order dated 22.7.2015, it is mentioned that for aforesaid conduct of indiscipline, the petitioner was served with a show cause notice. In para 4 of the order, it is mentioned that since the language of petitioner's reply shows that he has no remorse about his conduct, his reply is not found satisfactory. The department relied on certain conditions of appointment order and rule 8(4) of Rules of 1961. In para 8, a specific finding is given that the petitioner's conduct during probation was negligent and full of indiscipline, which violates rules 3,6 and 7 of Conduct Rules. Similarly, in para 9 again the department opined that the petitioner has violated the Conduct Rules and General Conditions of Service Rules.
24. A combined reading of show cause notice and the termination order shows that the incident of 7.7.2015 became foundation for issuance of show cause notice. The submission of representation and alleged behaviour of petitioner triggered the show cause notice which culminated with issuance of termination order. There is a clear nexus between the incident of submission of representation dated 7.7.2015, alleged incident of misconduct which resulted into issuance of show cause notice and termination order. The termination order, in my view, casts stigma against the petitioner. It has a punitive element in it because on more than one occasion, specific finding is given that the petitioner has violated the Conduct Rules, his conduct was indisciplined and his reply to show cause notice was not accepted because the language of reply was improper. Thus, in my view, the termination order is not a simplicitor order. On 19 WP 4834/2015 the contrary, it has a punitive element in it. Thus, this order cannot sustain judicial scrutiny.
25. Shri Vivek Jain relied on the judgment of Supreme Court in S.L.Agarwal (supra). In the said judgment, the Supreme Court was dealing with the question regarding protection of Article 311 of the Constitution to a probationer. Admittedly, in the present case protection of Article 311 of the Constitution is not available to the petitioner. The petitioner has also not claimed that he is a civil post holder and, therefore, the shield of said Article is available to him. Whether or not the petitioner is a civil post holder, fact remains that the respondents are "State" within the meaning of Article 12 of the Constitution. The department being the 'State' is bound to act in a just, reasonable, fair and transparent manner. In (2014) 10 SCC 589 (Vijay Shankar Pandey vs. Union of India and another), the Apex Court opined as under:-
"The Constitution declares that India is a sovereign democratic republic. The requirement of such democratic republic is that every action of the State is to be informed with reason. State is not a hierarchy of regressively genuflecting coterie of bureaucracy. The right of judicial remedies for the redressal of either personal or public grievances is a constitutional right of the subjects (both citizens and non-citizens) of this country. Employees of the State cannot become members of a different and inferior class to whom such right is not available. The respondents considered that a complaint to the Supreme Court of malfeasance causing debilitating economic and security concerns for the country amounts to inappropriate conduct for a civil servant is astounding."
26. If the petitioner has used filthy language or misbehaved with the authorities, it was open to the authorities to take penal action against him in accordance with law. This order for that purpose will not come in the way of the respondents. In fact, this Court is mainly concerned with the factor which impelled the employer to issue the termination order. Reason for termination was not mere general unsuitability of the 20 WP 4834/2015 petitioner for the post held by him. In that case, the order would have been affirmed. In the present case, there were allegations of serious misconduct against the petitioner and respondents have acted on the basis of some "Panchnama" prepared behind the back to ascertain the truth of those allegations. The termination order is passed thereafter and based on those circumstances. Hence, the termination order is passed based on the allegation of misconduct.
27. At the cost of repetition, in my view, whether or not the petitioner is protected by Article 311 of the Constitution, the action of the respondents can be examined on the anvil of fairness, justifiability, transparency, etc. This is said that "fairness is an integral part of good administration". If the impugned order is tested on the principle of fairness, it will be clear that the order is not innocuous or simplicitor in nature and in depth analysis shows that the order is based on the incident dated 7.7.2015 and show cause notice issued thereafter. In this factual backdrop, the judgment of S.L.Agarwal (supra) has no application in the present case.
28. On the basis of aforesaid analysis, in my view, the termination order cannot be permitted to stand. Accordingly, the order dated 22.7.2015 is set aside. Petition is allowed. Respondents are directed to reinstate the petitioner in service forthwith. It will be open to the respondents to take appropriate action against the petitioner in accordance with law.
(Sujoy Paul) Judge (yog)