Punjab-Haryana High Court
The Haryana State Cooperative Apex Bank ... vs Sat Narain on 11 October, 1995
Equivalent citations: (1996)112PLR399
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT Amarjeet Chaudhary, J.
1. This is an appeal under Clause X of the Letter patent arising out of the judgment of learned Single Judge rendered in Civil Writ Petition No. 17591 of 1991 on 5.8.1994. Since reported as Sat Narain v. The Haryana State Co-operative Apex Bank Ltd., (1994-3) 108 P.L.R. 405 - Editor]. One Satnarain was appointed as a Record Keeper in the service of appellant-Bank vide order dated 30.4.1990. He was placed on probation for a period of two years, which could be extended by a further period of one year. The appellant-Bank issued an order dated 13.9.1991 terminating the service of Sat Narain on the ground that he had not been found suitable. Before the passing of the order of termination of service, he was called upon to submit his explanation about his work and conduct. The explanation was submitted by him on 13.7.1991. The Managing Director of the appeallant-Bank terminated his services. Sat Narain thereafter filed Civil Writ Petition No. 17591 of 1991 impugned the order of termination. The challenge to the order was that the impugned order was stigmatic in character. He pleaded that foundation of termination of his services lies in the allegations of bad conduct and behaviour and unsatisfactory performance. He also pleaded that the act of the Deputy General Manager (Administration) calling his explanation for bad conduct and behaviour reveals that termination of services was based on the allegation of misconduct. It was also pleaded by him that the impugned order of termination was passed without holding any inquiry in accordance with the statutory rules and the principle of natural justice. On the other hand, respondents defended the impugned order and pleaded that services were terminated due to his unsatisfactory performance and the same could not be equated with termination of services by way of punishment.
2. Learned counsel for the appellant-Bank contends that the findings of the learned Single Judge in holding that the termination order, after lifting the veil, casts stigma on the petitioner, respondent herein, is contrary to the facts established on the record. Learned counsel further contends that it was on the basis of overall assessment of performance of the work and conduct of Sat Narain that the competent authority formed an opinion to terminate the services of respondent-Sat Narain. Learned counsel has also contended that the learned Single Judge has erred in law in relying upon the ratio of Anoop Jaiswal v. Union of India, A.I.R. 1984 S.C. 636. Similarly the ratio of State of Bihar v. Shiv Bhikshuk Mishra, 1970 S.L.R. 863 and Appar Apar Singh v. State of Punjab, 1971 (2) S.L.R. 71 is not applicable to the facts of present case for the reason that the facts were totally different and the impugned orders in the these cases were passed without complying with the provisions of Article 311 of the Constitution of India. Learned counsel for the appellant-Bank contended that rather Parshotam Lal Dhingra v. Union of India, A.I.R. 1958 S.C. 36 and Union of India v. R.S. Dhaba, 1969 (3) S.C.C. 603, fully support the action taken by the appellant-Bank. Counsel also relied upon the decision of the Supreme Court rendered in State of UP. v. Kaushal Kishore Shukla, 1991(1) S.C.C. 691.
3. While replying to the submissions of learned counsel for the appellant-Bank the respondent's counsel has defended the judgment of learned Single Judge and pleaded that no interference in the well reasoned judgment of learned Single Judge is called for.
4. On our asking, learned counsel for the appellant-Bank has produced the official record in which the case of the respondent-Sat Narain was dealt with.
5. We have perused the official file and gone through the law cited at the Bar.
6. The perusal of the file shows that explanation of the petitioner was called for about his work and conduct vide letter dated 3.7.1991, Annexure P-5, the relevant portion where-of reads as under :-
" Work and conduct of Sh. Sat Narain, Record Keeper Branch Officer Panchkula is not satisfactory as well as behaviour towards superiors is also not good.
You are, hereby called upon to explain your position in this regard within a week from the receipt of this letter and directed to improve yourself as you are on probation period otherwise disciplinary action will be initiated against you and your reply should reach through Branch Manager."
7. In para 3 of their written statement the Respondents have specifically pleaded that services of the petitioner were terminated by the Appointing Authority after taking into consideration his entire record from the date of his joining i.e. 7.5.1990 onwards. This included various matters particularly unauthorised absence from duty, tampering with the official record and general poor and unsatisfactory performance and behaviour which clearly shows that the real motive for passing the impugned orders of termination of services of the petitioner was to punish him and the order was merely a camouflage in form but in reality punitive in nature.
8. There is a catena of judgments of the Hon'ble Apex Court that the Court can lift the veil of come to just conclusion and to know the back ground of the orders. It is also well settled that if the orders of discharge even of a probationer is passed on mis-conduct, it will not be an order of discharge simpliciter and would be punitive in nature which cannot be passed without affording an opportunity of being heard. The learned Single Judge has dealt with this aspect of the matter in detail and referred to the authorities brought to his notice and consequently allowed the writ petition. We need not to repeat the authorities discussed in the judgment of the learned Single Judge.
9. However, we would like to discuss the additional authorities which perhaps were not produced before the learned Single Judge i.e. State of U.P. v. Kaushal Kishore Shukla, Judgment Today 1991(1) S.C. page 691 in support of the arguments advanced by the learned counsel for the appellant that when ever the Competent Authority is satisfied that the work and conduct of a temporary servant is not satisfactory and that his continuance in service is not in public interest on account of un-suitability, mis conduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or Relevant Rules or it may decide to take punitive action against the temporary Govt. servant. If he decide to take punitive action it may hold formal inquiry by framing charges and giving an opportunity to the Govt. servant in accordance with the provision of Article 311 of the Constitution of India. Since a temporary Govt. servant is also entitled to the protection of Article 311(2) in the same manner as a permanent Govt. servant, very often a question arises whether the order of termination is in accordance with the condition of service and the relevant Rules regulating temporary employment or is by way of punishment. As discussed by the learned Single Judge, the employees of an agency or instrumentality of State do not get protection under Article 311 and they are governed by their own Regulations but the legal aspect of the matter will remain the same. The learned counsel laid stress that out of the alternatives the Bank has chosen the first one i.e. termination in accordance with terms of order by passing simple order of discharge.
10. After bestowing our careful consideration over the arguments of the learned counsel for the appellant we do not find any merit therein, keeping in view the facts and circumstances of the present case.
11. It is 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.
12. The perusal of the impugned order leaves no doubt that one of the grounds for termination of the service of the respondent is that 'his behaviour towards the superiors is also not good'. Had the appellant Corporation intended to discharge the Respondent in terms of his appointment, it would not have added the word 'behaviour towards superiors is also not good' and the order could have been taken out of the mischief of punitiveness thereof, and could have avoided the stigma against the Respondent. But by adding these words there is no doubt that the orders have become stigmatic, hence necessarily could have been passed only after affording an opportunity of being heard to the Respondent. In similar circumstances in a case relating to discharge of Police Constable by the Superintendent of Police within three years of his joining the service, the Superintendent of Police passed the following orders :-
"Const. Jagdish Chander No. 3/460 is hereby discharged under (PP) 12.21 with immediate effect i.e. 1.6.1992 A.M. as he is unlikely to prove an efficient police officer because he is habitual absentee negligent to his duty and indisciplined."
Which was challenged by the Constable in this Court and the writ petition was allowed which was taken to the Hon'ble Apex Court by way of filing SLP by the State of Haryana and the Hon'ble Apex Court held in the said case that order is not an order of discharge simplicitor where the Superintendent of Police recorded findings which would be a stigma on the career of the discharged officer. Hence, opportunity has to be given before recording the adverse findings. Hence, the order of discharge was held to be vitiated by manifest error of law. The said case is reported as 'State of Haryana and Anr. v. Jagdish Chander, J.T. 1995(2) S.C. 108.
13. We are of the considered view that the present case is squarely covered by the ratio of Jagdish Chander's case (Supra) and the findings recorded by the learned Single Judge and the conclusion arrived at does not call for interference in L.P.A. except to the extent that the authorities should not be left helpless to proceed against an employee whose behaviour is alleged to be not good. Hence, in view of the law laid down by the Hon'ble Single Judge only to the extent that it will be open to the appellant, if so advised, to give an opportunity to show cause to the respondent, consider his objection and pass appropriate orders within a period of two months from the date of receipt of this order.
14. For the foregoing reasons, the appeal is partly allowed to the extent that it will be open to the appellant, if so advised, to give an opportunity to show cause to the respondent, consider his objection and pass appropriate order within a period of two months from the date of receipt of this order. In the facts and circumstances of the case, parties are left to bear their own costs.