Central Administrative Tribunal - Delhi
Dr.Abhay Kumar Srivastava vs Union Of India on 10 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 4039/2013 New Delhi this the 10th day of August, 2015 Honble Mr. A.K.Bhardwaj, Member (J) Honble Mr. V.N.Gaur, Member (A) Dr.Abhay Kumar Srivastava, Aged about 59 years, S/o late Sh. S.P.Srivastava, R/o A-137A, Sector-27, Gautam Budh Nagar, NOIDA (UP) . Applicant (By Advocate Shri Nilansh Gaur) VERSUS 1. Union of India, Through its Secretary, Ministry of Mines, Shastri Bhawan, New Delhi. 2. Department of Personnel & Training, Through its Secretary, Ministry of Personnel & Training, North Block, New Delhi. ... Respondents (By Advocate Mr. Rajinder Nischal) O R D E R Honble Mr. A.K.Bhadwaj, Member (J):
In terms of letter No. 2(5)/2009-Met.1 dated 28.01.2010 (Annexure A-4), Government of India, Ministry of Mines conveyed the sanction of the President to the appointment of the applicant, herein as Chairman-cum-Managing Director, NALCO to the Company Secretary, National Aluminium Company Limited (NALCO). The applicant joined the post on 1.10.2009. In terms of the order no. 11(11)/2011-Met.1 dated 11.12.2012, he was removed from the post with immediate effect with payment of three months salary, in lieu of three months notice. Thus, he filed the present OA, praying therein:-
(i) allow the original application.
(ii) quash and set aside the order dated 11.12.2012 (AnnexureA-1) whereby services of the applicant had been terminated curtailing the tenure of appointment, and then reinstate the applicant in service with immediate effect along with complete back-wages and consequential benefits and the same be paid with 12% per annum interest from the date it has become due; and/or
(iii) alternatively the applicant be given complete back-wages/salary till completion of actual date of tenure/retirement and all terminal and legal dues including pension, gratuity, PF, Leave in enhancement, incentive, performance relative PRP, Post retirement medical benefits etc. and all other dues and the same be paid with 12% per annum interest from the date it becomes due and/or;
(iv) call for the original files/record from Ministry of Mines, GOI and also Department of personnel and training (DoPT) in order to ascertain divisions for premature termination of services of the applicant.
(v) may also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice. Subsequently, the OA was amended to question the Clause 1.1 of terms and conditions contained in letter dated 28..01.2010 as well as Clause 63(f) of the Articles of Association of the Company, i.e. NALCO. The prayer made in the amended OA read thus:-
(i) Allow the original application.
(ii) Quash and set aside the order dated 11.12.2012 (Annexure A-1) by which, the services of the applicant have been terminated curtailing the tenure appointment of the applicant and on legal fiction, reinstate the applicant with all consequences including full wages w.e.f. 26.2.2011 to 31.1.2014; and/or (iiA) declare impugned part of Clause 1.1 of terms and conditions dated 28.1.2010 as well as Clause 63 (f) of Articles of Association as ultra-vires, unconstitutional and the same may be set aside (Annexure A-1A and Annexure A-4);
(iii) Applicant be declared entitled to his retrial benefits including other consequential benefits and the same be paid with 12% per annum interest from the date it has become due.
(iv) Call for the original files/record from Ministry of Mines, GOI and also Department of personnel and training (DoPT) in order to ascertain divisions for premature termination of services of the applicant. (v) May also pass any further order(s),direction (s) as be deemed just and proper to meet the ends of justice. Mr. Nilash Gaur, learned counsel for applicant espoused:-
It is the criminal case registered against the applicant, which led to issuance of the impugned order of termination, thus it is required to be seen, whether the conduct of the applicant involved in the criminal case was a mere motive for the order of termination or was the very foundation of the same. If the conduct involved is foundation of the order, the same would be vitiated.
The applicant is victim of deep rooted conspiracy and no criminal charge for committing an offence under Section 13 (2) (d) of Prevention of Corruption Act (PCA) has been framed against him and the case of bribery under Section 7 & 13(2) of PC Act was made out through a middle man. The contract was awarded on LI basis and there is no allegation of extending favour to the contractor by him against the applicant. There is no loss to the exchequer.
Mr. Bajaj had written a letter to Minister of Mines, Govt. of India clearly admitting that the petitioner never asked to collect the bribe money.
The tenure of the applicant could not have been brought to an end before the due date.
The services of the applicant were terminated in disregard to the extant provision as he was not paid full amount of three months salary before removal/termination.
From the note for the appointment Committee of the Cabinet dated 27.04.2012, it is apparent that the termination of the applicant is not simplicitor, but is founded on the alleged conduct of the applicant for which a criminal case has been registered against him.
The removal of the applicant from service is violative of the principles of natural justice.
As has been ruled by Honble Supreme Court in Dr.L.P.Aggarwal Vs. Union of India (AIR 1992 SC 1872), when a employee is appointed on tenure post, the tenure cannot be curtailed and the employee cannot be made to go pre-maturely.
The order of termination has been issued by the incompetent authority.
Irrespective of the order of termination, the petitioner is entitled to his terminal dues.
The concept of security of tenure is inbuilt in Constitution of India (DTC Vs. Mazdoor Congress (1991 Supp (1) SCC 600).
The termination/removal of the applicant from service is violation of rule 26 and 28 of the CDA Rules of NALCO.
When after completion of first year of tenure, the performance of the applicant had been reviewed and he was continued in service, there was no scope for termination of his service.
Had the applicant been continued in service, he could have earned pensionary benefits and since the order of termination has resulted in depriving the applicant from his pensionary benefits, the provisions of Article 311 of the Constitution are violated.
Criminal case registered against the applicant has already been proved as false.
The respondents have withheld the terminal benefits of the applicant illegally.
Finally, he relied upon the judgments in the following cases:-
(1) R.S.Sial Vs. State of U.P ( AIR 1974 SC 1313) (2) State of U.P. Vs. Sughar Singh ( AIR 1974 SC 423) (3) Madhav Laxman Vaikunthe Vs. State of Mysore ( AIR 1962 SC 8) (4) State of Bombay Vs. F.A.Abraham ( AIR 1962 SC 794) (5) Samsher Singh Vs. State of Punjab (1974 (2) SCC 831) (6) State of Punjab Vs. P.S. Cheema (AIR 1975 SC 1096) (7) State of U.P. Vs. Ram Chandra Trivedi (AIR 1976 SC 2547) (8) Gujarat Steel Tubles Ltd. Vs. Gujarat Steel Tubles Mazdoor Sabha (1980 (2) SCC 593) (9) Nepal Singh Vs. State of U.P Ors (1985 AIR 84) (9) Dipti Prakash Banerjee Vs. Satvendra Nath Bose, National Centre of Basic Sciences, Calcutta and Ors. ( 1999) (3) SCC 60) (10) Dr.L.P.Aggarwal Vs. Union of India (AIR 1992 SC 1872) (11) UOI Vs. Shardandu (2007 (6) SCC 276) (12) P. Venugopal Vs. UOI (2008 (5) SCC 1) (13) Pradeep Kumar Vs. UOI (2012(13) SCC 182) (14) Chandra Prakash Sahi Vs. State of U.P. (2000 (5) SCC 152) (15) State of Jharkhand Vs. Jitender Kumar Srivastava (CA 677/2013) (16) Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha (1980 (2) SCC 593)
2. In the counter reply filed on behalf of Union of India, it has been espoused:
(i) The appointment of the applicant was made in terms of the provisions of Articles of Association of NALCO which provides a framework for its operation and fundamental in nature, thus like any other part of the Articles, the provisions of Clause 63 (f) of the same is also equally effective and fundamental in nature and cannot be segregated.
(ii) Having accepted the terms and conditions of the appointment letter and joined the service in terms thereof, the applicant cannot question the same.
(iii) The termination of services of the applicant is in terms of the provisions contained in para 1.1 of the terms of conditions of his appointment read with Clause 63 (1) (f) of Articles of Association of NALCO.
(iv) There is no provision for issuance of show notice before termination of services of CMD NALCO in terms of the provisions of para 1.1 of the appointment letter.
(v) The appointment of the applicant is terminated
not as a measure of penalty but as an administrative action.
(vi) There is no co-relation between the order dated
11.12.2012 passed by the Tribunal in OA No. 1799/2011 and the order of suspension dated 11.12.2012.
(vii) The allegation of non payment of dues are incorrect, as NALCO credited a sum of Rs.4,21,763 in Bank account of the applicant, i.e. account No.07072191007994 with Oriental Bank of Commerce, SSI Branch, NOIDA through RTGS which included subsistence allowance upto 10.12.2012 and three months salary. Further he has been paid sum of Rs.1,65,891/- through RTGS towards perks and HRA.
(viii) The termination of the services of the applicant is in consonance with the provisions of para 1.1. of the terms and conditions of appointment, NALCO which clearly provide that the appointment might be terminated by either side on 3 months notice or on payment of three months salary in lieu thereof.
(ix) The Corrigendum No.11 (1)/2011-Met.I dated 17.12.2012 has been issued to correct the typographical error mentioned in the sixth line of the order dated 11.12.2012 with the stipulation that the same may be read as 2(2)/2007-Met 1 dated 11.8.2009 instead of 2(2)/2007-Met dated 11.08.2012.
(x) The Post Retirement Medical Benefit Scheme provide that a Board level appointee is eligible for post retirement medical benefit after completion of full tenure of service. While in the instant case, the applicant could not complete his full tenure of service in the company and is not eligible for the said benefit.
(xi) The applicant had not made any application in the prescribed form for getting payment of provident fund and his entitlement for terminal benefits depend upon the outcome of charge sheet filed against him under Section 120IPC read with 7 and 12 of PC Act, 1988, wherein the Court had already taken cognizance.
3. We heard counsels for parties and perused the record. The National Aluminium Company Limited (NALCO), was incorporated on 7th January, 1981 in the Public Sector, with its registered office at Bhubaneshwar, to exploit a part of the large deposits of bauxite discovered on the East Coast. The Company was conferred Navratna status on 28.4.2008. Its Articles of Association provides for a minimum of four and maximum of eighteen Directors. The Chairman-cum-Managing Director is the Chief Executive of the Company and is assisted by five functional Directors namely Director (Project & Technical), Director (Production), Director (Human Resources), Director (Finance) and Director (Commercial). The company has on its Board also eight Independent (non-official) Directors and two Government nominee Directors. The applicant was appointed as Chairman-cum-Managing Director, NALCO with the approval of ACC, vide Ministry of Mines order dated 11.08.2009 w.e.f. 1.10.2009 for a period of five years or till the date of his superannuation, or till further orders, whichever could be earliest. The date of superannuation of the applicant was 31.1.2014. Though vide communication dated 14.1.2011, PESB had recommended for his confirmation subject to vigilance clearance, but for want of vigilance clearance, the order could not be issued. In view of his arrest by CBI in a trap case and registration of a regular CBI case No. RC AC 1 2011 A0001 against him, he was placed under suspension vide order dated 26.2.2011. After his release on bail, the headquarters of the applicant was changed from Bhubaneshwar to New Delhi vide order dated 22.9.2011. In the wake of suspension of the applicant, the NALCO had been functioning without there being a regular CMD since 26.2.2011. The Company in Navratna CPSE with 7000 employees and turnover of Rs.7000 crores faced tremendous administrative problem for a long period. Confronted with the crises, the concerned Ministry sent a note to Cabinet for termination of services of the applicant. Finally, in terms of the order no. 11(11)2011-Met.1 dated 11.12.2012, his services were terminated with immediate effect on payment of three months salary in lieu of notice. The first and foremost plea put forth on behalf of the applicant is that the order of termination of the applicant is consequence of registration of the criminal case (ibid) against him and is stigmatic, thus is liable to be set asided. In respect of the said plea, the learned counsel himself explained that in order to attract the provisions of Article 311 (2) once should see whether the misconduct or negligence was mere motive for the order of removal or termination or was the very foundation of that order and if the basis of the order is not misconduct, the order should be saved. Para 5 (B) of the OA wherein such legal proposition has been espoused read thus:-
B. Because the termination order is bad in law. Proposal for pre mature termination of the services of the applicant was moved by Ministry of Mines on 27.04.2012 due to vigilance case by CBI. No show cause has been issued, nor has any enquiry been initiated. No proper reason has been given for termination. It is submitted that the termination order has been made in the garb of punitive action. The alleged criminal charges, which are denied by the applicant, have been reason for the authority to terminate the applicant. Serious prejudice has been caused to the applicant due to non issuance of show cause and non conducting of enquiry. Thereby denying the applicant to defend himself based on the principal of natural justice. It is well settled that in such cases the courts have the power to lift the veil and to see the intention of the termination order. In this regard reference be made to the following judgments Chandra Prakesh Shahi Vs. State of UP & Ors on 25 Aril, 2000:
R.S.Sial Vs. State of U.P (1974) 3 SLR 754=AIR 1974 SC 1317=(1975) 3 SCC 111 and it was laid down that in order to attract the provisions of Article 311 (2) it has to be seen whether the misconduct or negligence was a mere motive for the order of reversion or termination or whether it was the very foundation of that order. It was again reiterated that the form of the order was not conclusive of its true nature and the Court has to examine the entirety of circumstances proceeding or attendant on the order of termination. To the same effect is the decision of this Court in State of U.P Vs. Sughar Singh (1974) 1 SCC 218= 1974(2) SCR 535=AIR 1974 SC 423, which related to reversion and in which reliance was placed on two earlier decisions in Madhav Laxman Vaikunthe Vs. State of Mysore AIR SC 8=1962 (1) SLR 886 and State of Bombay vs.F.A.Abraham AIR1962 SC 794= 1962 Supp. (2) SCR 92. It was, however, laid down that if the order visits the employee with penal consequences, the order would be punitive. It was for this reason that the order of reversion in that case was held to be bad. In the same year, came the Seven-Judge Bench decision of this Court in Samsher Singh Vs. State of Punjab ( 1974) 2 SCC 831=AIR 1974 SC 2192= 1975 (1) SCR 814, in which Motive and foundation theory was reiterated and it was laid down that the question whether an order terminating the services of a temporary employee or a probationer was by way of punishment or not would depend on the facts and circumstances of each case. The form of the order, it was observed, was not conclusive and an innocuously worded order, terminating the services of a temporary employee or a probationer may, in the facts of the case, be found to have been passed on account of serious and grave misconduct in utter violation of Article 311 (2) of the Constitution. This decision was followed in State of Punjab Vs.P.S.Cheema AIR 1975 SC 1096= (1975) 4 SCC 84 and the termination order, regarding which a concurrent finding of fact was recorded by the trial court, the lower appellate court and also by the High Court in second appeal that it was punitive in nature, was held to be bad. While the judicial pronouncements stood at that stage, the entire case law was reviewed by this Court instate of U.P Vs. Ram Chandra Trivedi AIR 1976 SC 2547=(1976) 4 SCC 52= 1977 (1) CR 462, in which it was contended that the legal and Constitutional position with regard to an order of termination was not settled as there were conflicting decisions of this Court on that question. This contention was not accepted and on a review of the entire case, including the Seven-Judge Bench decision in Samsher Singhs case (supra), it was laid down that the Court has consistently held that the motive, in passing an order of termination or reversion, operating in the minds of the Govt. was not a relevant factor for determining whether the order was passed by way of punishment. What was determinative of the true nature of the order was not its exterior form but the foundation on which it was based. If misconduct or negligence was the foundation of the order of termination, or for that matter, reversion, the order would be punitive in nature.
In Gujarat Steel Tubes Ltd.vs. Gujrat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593= (1980) 1 LLJ 137= 1980(2) SCR 146=AIR 1980 SC 1896, it was laid down that a Court or Tribunal is entitled to find out the true nature of the termination order, namely, whether it is punitive or not. In this regard, the form of the order will not be decisive and the Court can lift the veil to see the true nature of the order. The Court observed that the substance not semblance, governs the decision. The Court further observed that what was decisive was the plain reason for the discharge and not the strategy of a non-enquiry. If the basis was not the misconduct, the order could be saved. The Court further observed that the mere fact that after being satisfied of the guilt the Govt. abandons the enquiry and proceeds to terminate the services by a simple order, would not be the relevant factor in considering the true nature of the order. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion would be dismissal even if full benefit, as on simple termination, are given and non-injurious terminology is used.
. As we have already seen above, there has been total non-compliance with the provisions of Para 541 of the U.P.Police Regulations and services of the appellant were terminated without ever issuing him any notice terminating the grounds on which his services were proposed to be terminated nor was his explanation ever obtained. The services were terminated because he was found involved in a quarrel between two other Police Constables. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the High Court is set aside and that of the U.P. Police Services Tribunal is restored, but without any order as to costs. Nepal Singh Vs. State of U.P. Ors 1985 AIR 84 (Supreme Court 3 judges bench Supreme Court):
Proceeding from there, we may advert to a further aspect of the case. It would seem that the dominating factor which influenced the mind of the Deputy Inspector General of Police was the allegation that the appellant had married a second wife against the Government Servants Conduct Rules it is clear that a full-fledged enquiry was institute into the matter, evidence was recoded but before any findings could be rendered the enquiry was dropped for want of jurisdiction. No attempt was made thereafter to institute proper enquiry by the appropriate authority in the circumstances, it was not open to the Superintendent of Police to mention in his report, as a statement of fact, that the appellant had married a second time against the Government Servants Conduct Rules. With the dropping of the enquiry the allegation remained unverified. We may observe that where allegations of misconduct are leveled against a Government servant, and it is a case where the provisions of Art.311(2) of the Constitution should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. The Court will view with great disfavor any attempt to circumvent the constitutional provision of Art.311 (2) in a case where that provision comes into play. For all the aforesaid reasons, we are unable to uphold the judgment and order of the High Court, and in the result the appeal must be allowed.
The appeal is allowed and the order dated April 27, 1970 of the Deputy Inspector General of Police, U.P Bareilly Circle is quashed. The Divisional Railway Manager Vs. Presiding Officer (Madras High Court):
68. As rightly pointed out by the learned counsel for the dismissal employee- writ petitioner, the Tribunal had not touched on this aspect of Article 311 (2) where the order is punitive in character, particularly when a specific issue was made before the Tribunal by the petitioner. The view of the Tribunal that contract labour or temporary employees are governed only by the terms of the contract would be acceptable if and only when the termination, as given in terms of what is listed in the order of appointment, is a ground for termination. Thus, if the order made by the second respondent had merely rested on the services of the petitioner found unsatisfactory without attributing any of those allegations as found in the show cause notice and even on lifting the veil one finds no such allegation that tinkers with the character of an employee, then, the order of termination would pass the test that even without a regular departmental enquiry, an order of termination could be held as legally valid. However, when on the face of the order, one finds that misconduct has been the basis of the show-cause notice, the Tribunal committed a serious legal flow in overlooking the law declared by the Apex Court. In the circumstances, the case pleaded by the petitioner is fully supported by the law laid down by the Apex Court as to what stigma means- (199) 3 SCC 60 ( Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and Others). The fact that the appointment is for a fixed period, or under a contract, is of no relevance herein, in the context of the misconduct alleged. Thus, in view of the aforesaid, the termination order is liable to be set aside. It is quite apparent that the authority has been influenced by the criminal charges against the petitioner. The same is clear by the Cabinet note sent by the Ministry of Mines on 27.04.2012. The same is also apparent from the fact that as soon as the suspension case was dismissed by the Honble Tribunal, the petitioner was terminated. Further the suspension order also refers to the criminal charges. In para 28 and 29 of the judgment relied upon by the applicant himself, Honble Supreme could explain the concept of motive and foundation. Para 28 and 29 of the judgment read thus:-
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 enquiry is held and it is on the basis of that enquiry 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 enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".
29. "Motive" is the moving power which implies action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which implied 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 enquiry 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 enquiry. In the present case, it is not so that the appointing authority could terminate the services of the applicant with the view that the charges leveled against the applicant in the criminal case are established or his such alleged conduct warrant its termination. The termination of services of the applicant is not the result of the nature of charges against the applicant in the criminal case or the correctness of the charges. As has been ruled by Honble Supreme Court in the case of Chandra Prakash Shahi Vs. State of UP and Others (2000(5) SCC 152), relied upon by the applicant himself if there are allegation of misconduct and enquiry is held to find out the truth of that misconduct and order terminating the services is passed on the basis of that enquiry the order would be punitive in nature and in such situation, the order would be founded on misconduct and it will not be mere matter of motive. In such situation, the order would be held vitiated. In the cases where there are allegation of serious misconduct against an employee and a preliminary enquiry is held behind his back to ascertain the truth of the allegation 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 tune in the preliminary enquiry. In such situation again the order can be said to be vitiated. In the present case, admittedly, no enquiry was held to find out the correctness of the allegation against the applicant in the criminal case and the trial in respect of the charges is pending before the Court of competent jurisdiction. Nevertheless, since in the wake of the criminal case, the applicant was under suspension and NALCO Navratna, CPSE with over 7000 employees and turn over of Rs.7000 crores was facing tremendous problem due to the absence of a regular CMD for a long period of fourteen months, the respondents could be stimulated to do away with the applicant as according to them he was not effectively available to discharge the function of the post, being under suspension. There is difference between the termination based on the misconduct proved after the inquiry and the termination on account of the pending disciplinary proceedings and continuing suspension of an employee, irrespective of the correctness of the allegation in the enquiry. In second situation, these are the pending proceedings and the continuance suspension which is motive behind termination and the misconduct involved in the criminal case/disciplinary proceedings is not the foundation of the termination. Once in terms of the extant rules and instructions, an authority has power to terminate the services of an employee, the pendency of disciplinary proceedings against him or his continued suspension cannot operate as stay against such power of the authority.
4. In Radhey Shyam Gupta Vs U.P.State Agro Industries Corporation and Another (JT 1998 (8) SC 585), it could be ruled that even when an criminal enquiry is held against an employee because the purpose of preliminary enquiry to find out if there is prima facie evidence or material to initiate a regular departmental enquiry against him the termination ordered without giving an opportunity to concerned employee will not be bad. In the said case, it was further held that even in a case where a regular department enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed, if at that point of time, the enquiry is dropped and simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. In the said case, their Lordships of Honble Supreme Court conclusively ruled that in such cases the allegation of truth has not been found and are merely motive, the order of the termination cannot be held to be stigmatic. Para 33 of the judgment read thus:-
33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as he then was) in Ram Narayan Das's case (AIR 1961 SC 177). It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champaklal's case (AIR 1964 SC 1854). The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge-memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur's case (AIR 1968 SC 1089) and in Benjamin's case (1967 Lab LJ 718) (SC). In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case (AIR 1980 SC 1896), the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive. In the present case though initially the applicant was suspended, but no departmental enquiry proceeding set in motion against him and a decision was taken to terminate his services in terms of the provisions of para 1.1 of the terms and conditions of the appointment as well as Clause 63 (1) (f) of the Article of Association, NALCO. Such decision taken by the respondents is in consonance with the law declared by Honble Supreme Court in Radhey Shyam Gupta Vs U.P.State Agro Industries Corporation and Another (ibid) and cannot be held to be vitiated in any manner. At best the conduct of the applicant in criminal case can be treated as motive for termination which would not render the impugned order stigmatic or punitive. In the wake, we do not find any substance in the plea put forth by the learned counsel for applicant that the impugned order is liable to be set asided as punitive or stigmatic.
5. The next salient plea raised on behalf of applicant is that the services of incumbent of a tenure post cannot be terminated or brought to an end before completion of tenure. To buttress the plea, learned counsel for applicant relied upon the judgments of Honble Supreme Court in Union of India and Another vs. Shardindu ( 2007) 6 SCC 276) and P.Venugopal Vs. Union of India (2008) 5 SCC-1 ). As far as reliance placed by the applicant in the judgment of UOI Vs. Shardindu is concerned, in the said case the Honble Single Judge of the High Court after considering the matter took the view that there was no question of invoking the pleasure of doctrine under Article 310 of the Constitution in the facts of the case and the services of the petitioner could not be terminated. The view taken in the said case was that once the method of termination of service of an incumbent was provided under the Act, his services could only be terminated in such manner and not otherwise. Such view taken by the Honble Single Judge of High Court was upheld by the Division Bench and finally by Honble Supreme Court. Para 5 of the judgment read thus:
5. Learned Single Judge after considering the matter took the view that there was no question of invoking the pleasure doctrine in the present case under Article 310 of the Constitution of India and the respondent was not on deputation, therefore, his services could not be terminated and he could not be repatriated back to the State of Uttar Pradesh. It was also held that since the incumbent was appointed under the Act of 1993 and he had not incurred any of the disqualifications mentioned in the Act, therefore, his services could not be terminated. It was also held that as per the method of termination of an incumbent as provided under the Act, his services could only be terminated in the manner as provided under the Act and none else. Learned Single Judge allowed the writ petition and set aside the order passed by the Union of India. Against the order passed by learned Single Judge of the High Court, a writ appeal was filed by the appellants before the Division Bench of the High Court which confirmed the order passed by the learned Single Judge, by order dated 27.7.2006. Hence aggrieved against the impugned order dated 27.7.2006 passed by the Division Bench of the High Court of Delhi, the present Special Leave Petition was filed by the appellants.
Ex-facie, the facts involved in the case relied upon by the learned counsel for the applicant are completely distinct from the facts and controversy involved in the present case. In the said case, the termination was ordered under Article 310 of the Constitution and a view was taken that Mr. Shardindu was entitled to the protection of the procedure enunciated in the Act of 1993. As far as the present case is concerned, the order of termination was passed in terms of the provisions of Article 63 (1) (f) of the Association of NALCO. If any support can be drawn from the aforementioned judgment of the Supreme Court, the same would be in favour of the respondents. As far as the judgment of P. Venugopal Vs. Union of India & Ors (ibid) is concerned, in the said case, Dr.P.Venugopal i.e. petitioner called in question the Constitutional validity of the proviso 1-A of Section 11 of the All India Institute of Medical Sciences (Amendment) Act, 2007 and contended that his services could not be terminated before completion of his five years term in the office of Director (AIIIMS). In the said case, Honble Supreme Court found that the impugned proviso was manifestly designed to apply and was in fact applied only against the writ petitioner and was not intended and could not apply even, in principle or otherwise, to anybody else because there was only one AIIMS in the country, there was only one Director of AIIMS on the date of commencement of the amending Act and there could be none else who could conceivably be affected by its operation. Para 21 of the judgment read thus:-
21. Let us now look into the facts of the case in hand. In the instant case it was submitted that the impugned proviso was manifestly designed to apply and was in fact applied only against the writ petitioner and was not intended to and could not apply even, in principle or otherwise, to anybody else because there was only one AIIMS in the country, there was only one Director of the AIIMS on the date of commencement of the Amending Act, and there could be none else who could conceivably be effected by its operation. It is claimed that reference to a similar proviso introduced in the PGI Chandigarh Act, 1956, is somewhat misleading as the term of appointment of the present Director of PGI Chandigarh was only upto the age of 68 years and accordingly there was no question under the PGI Chandigarh Act as the proviso is affecting the present incumbent or his successor. Finally having taken a view that proviso 1-A of Section 11 was inserted for termination of services of applicant, the Honble Supreme Court could strike down the same. Para 37 to 40 of the judgment read thus:-
37. Such being our discussion and conclusion, on the constitutionality of the proviso to Section 11(1-A), we must, therefore, come to this conclusion without any hesitation in mind, that the instant case is squarely covered by the principles of law laid down by this Court in the various pronouncements as noted hereinabove including in D.S. Reddi, Vice-Chancellor, Osmania University v. Chancellor D.S. Reddi, Vice-Chancellor, Osmania University v. Chancellor, AIR 1967 SC 1305 : (1967) 2 SCR 214.
38. In D.S. Reddi20, the facts of that case are somewhat similar to that of the writ petitioner. In that decision, D.S. Reddi was already a Vice-Chancellor for the past seven years and had not challenged the fixation of term from five years to three years. He was aggrieved by the second amendment in the University Act whereby Section 13-A was introduced to make the provision of Section 12(2) providing for inquiry by an Hon'ble Judge of the High Court/Supreme Court and hearing before premature termination of the term of the Vice-Chancellor inapplicable to the incumbent to the office of the Vice-Chancellor on the commencement of the second Amendment. The core contention of D.S. Reddi was that this amendment was only for his removal and therefore was a case of "naked discrimination" as it also deprived the protection of Section 12(2) to him when Section 12(2) was applicable to all other Vice-Chancellors and there being no distinction in this regard between the Vice-Chancellor in office and the Vice-Chancellors to be appointed. In that situation, the plea of the respondent Government was that the provision similar to Section 13-A was also incorporated in two other enactments relating to Andhra University and Shri Venkateswara University and was, therefore, not a one-man legislation. It was further contended by the State that it was always open and permissible to the State Legislature to treat the Vice-Chancellor in office as a class in itself and make provisions in that regard. All the contentions on behalf of the State Government were rejected by the Constitution Bench judgment of this Court in D.S. Reddi and it was held that it was a clear case of "naked discrimination" for removal of one man and by depriving him of the protection under Section 12(2) of the Act without there being any rationality of creating a classification between the Vice-Chancellor in office and the Vice-Chancellor to be appointed in future.
39. It was further held in D.S. Reddi20 that such a classification was not founded on an intelligible differentia and was held to be violative of Article 14 of the Constitution of India. Accordingly, the provision of Section 13-A was held to be ultra vires and unconstitutional and hit by Article 14 of the Constitution. Similarly in the present case, the impugned proviso to Section 11(1-A) itself states that it is carrying out premature termination of the tenure of the writ petitioner. It is also admitted that such a premature termination is without following the safeguards of justifiable reasons and notice. It is thus a case similar to D.S. Reddi D.S. Reddi, Vice-Chancellor, Osmania University v. Chancellor, AIR 1967 SC 1305 : (1967) 2 SCR 214 and other decisions cited above that the impugned legislation is hit by Article 14 as it creates an unreasonable classification between the writ petitioner and the future Directors and deprives the writ petitioner of the principles of natural justice without there being any intelligible differentia.
40. In view of our discussion made hereinabove and for the reasons aforesaid, we are of the view that this writ petition is covered by the decisions of this Court in D.S. Reddi and L.P. Agarwal L.P. Agarwal (Dr.) v. Union of India, (1992) 3 SCC 526 : 1992 SCC (L&S) 731 : (1992) 21 ATC 249 and the impugned proviso to Section 11(1-A) of the AIIMS Act is, therefore, hit by Article 14 of the Constitution. Accordingly, we hold that the proviso is ultra vires and unconstitutional and accordingly it is struck down. The writ petition under Article 32 of the Constitution is allowed. In view of our order passed in the writ petition, the writ petitioner shall serve the nation for some more period i.e. up to 2-7-2008. We direct the AIMS Authorities to restore the writ petitioner in his office as Director of AIIMS till his period comes to an end on 2-7-2008. The writ petitioner is also entitled to his pay and other emoluments as he was getting before premature termination of his office from the date of the order of termination. Considering the facts and circumstances of the present case, there will be no order as to costs. The ratio decendi of the judgment was that the naked discrimination for removal of one man and depriving him of statutory protection without there being any rationality of creating a classification between the one in office and the one to be appointed in future could not be sustained. In the present case, it is not so that the respondents incorporated any provision of law subsequent to appointment of the applicant to bring an end to his services. The Articles of Association of NALCO in terms of which the impugned order has been passed was very much in existence before the applicant was appointed as its CMD. It is stare decisis that a judicial precedents cannot be followed as statute and has to be relied upon with reference to the facts of the case wherein the precedent is laid down. In Collector of Central Excise, Calcutta v. M/s Alnoori Tobacco Products & another ( 2004 (6) SCALE 232), Honble Supreme Court ruled thus:
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
13. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition It will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
14. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
In the wake, we are unable to take a view that the services of incumbent of a tenurial post cannot be terminated. It is the case of the applicant himself that he could be removed from service after following the procedure laid down in Rule 28 of NALCO Conduct and Discipline Rules. As far as the plea of deep rooted conspiracy hatched against him raised by the applicant is concerned, what he mean to say is that he could be falsely implicated in the criminal case registered under Section 7, 12, 13 (2) (b) of the PC Act. The issue is subject matter of Trial by the concerned Court and in the present proceedings we cannot comment upon the correctness of the charges involved therein. The applicant has also raised the plea of non payment of his legal dues. In the counter reply filed on behalf of respondents, it has been specifically stated that the dues for the period of notice were already paid to him. The plea was not pressed by the learned counsel for the applicant during the course of hearing. It is also the case of applicant that the Ministry of Mines has been intended to bring to an end to his services (premises) under Rule 33 of NALCO Conduct and Discipline Rules, thus the termination under Article 63(1)(f) is without any due application of mind. We find that when in para 8 of the note for appointment Committee of the Cabinet, a reference is made to Rule 33 (ii) & (iii) of NALCO CDA Rules, in para 6 thereof, a reference is also made to para 1.1 of the terms and conditions of the appointment of applicant as CMD, NALCO. Merely because in the said note, a reference was made to Rule 33 (ii) & (iii) it cannot be held that the service of the applicant could not have been terminated in terms of para 1.1 of the terms and conditions of appointment read with Article 63 (1)(f) of Articles of Association of NALCO. It is stare decisis that the ramification of the content of note is not more than discussion and deliberation on the subject matter in issue. For easy reference para 6 and 8 of the note are reproduced hereinbelow:-
6. As per para 1.1. of the terms & conditions of the appointment of Shri Srivastava as CMD, NALCO (Ann-VII) issued with the approval of Department of Public Enterprises (DPE), his appointment will be for a period of 5 years w.e.f. 1.10.2009(FN) in the first instance or till the date of superannuation or until further orders, whichever event occurs earlier and in accordance with provisions of the Companies Act, 1956 as amended. The appointment may however be terminated even during this period by either side on three months notice or on payment of three months salary in lieu thereof. Further, it follows from para 1.15.1 of the terms & conditions of appointment that the Conduct, Discipline and Appeal Rules of NALCO are applicable mutatis mutandis to Shri Srivastava with the modification that the Disciplinary Authority in his case is the President.
xxx xxx
8. In view of the circumstances mentioned in para 5 above, the position of Shri A.K.Srivastava to continue as CMD of NALCO in future has become completely untenable and therefore it is in public interest to consider terminating his services in order to have a clear vacancy and appoint a fresh CMD on full time basis to run the administration of NALCO in an efficient manner. Accordingly, in line with the provisions of the terms & conditions of the appointment of Shri Srivastava and Rule 33(ii) & (iii) of NALCO CDA Rules, it has been decided by the concerned Disciplinary Authority, i.e. Minister of State (Independent Charge) for Mines to terminate the services of Shri A.K.Srivastava as CMD, NALCO. As far as the plea of violation of principles of natural justice and Rule 26(i) and 28 of CDA Rules is concerned, the rules provide for imposition of penalty after enquiry. In the present case, the respondents have not brought the tenure of the applicant as CMD, NALCO to an end by inflicting upon him any penalty and have terminated his services in terms of the provisions of para 1.1 of the terms and conditions of his appointment read with Article 63 (1)(f) of the Articles of Association, NALCO. In Article 63 (1) (f), it has been categorically provided that the Chairman-cum-Managing Director, Director/Managing Director of the NALCO may be removed from office in accordance with the terms of appointment, or if no such terms are specified, on the expiry of 3 months of the notice required to be issued in writing or with immediate effect on payment of the pay in lieu of the notice period. Also in para 1.1 of the terms and conditions of the appointment of the applicant, it was specified that his appointment might be terminated even during the period of tenure by either side on 3 months notice or on payment of three months salary in lieu thereof. The contents of Article 63 1)(f) and para 1.1 of the terms and conditions of appointment are reproduced hereinbelow:-
63 (1)(f).The President may from time to time or at any time remove the Chairman /Chairman-cum-Managing Director, Director /Managing Director or any whole time Director from office at his absolute discretion Chairman and whole time Directors may be removed from office in accordance with the terms of appointment, or if no such terms are specified, on the expiry of 3 months notice issued in writing by the President or with immediate effect on payment of the pay in lieu of the notice period.
xxx xxxx xx 1.1 Period: His appointment will be for a period of 5 years w.e.f. 1.10.20009(FN) in the first instance or till the date of superannuation or until further orders, whichever event occurs earlier and in accordance with the provisions of the Companies Act, 1956 as amended. The appointment may. However, be terminated even during this period by either side on 3 months notice or on payment of three months salary in lieu thereof. During the course of hearing, learned counsel also raised the plea that once after the expiry of the first year of tenure, the performance of the applicant was reviewed and he was further continued in service, the order of termination could not have been passed. We find that the provisions of para 1.1 are independent of those of para 1.2 and Clause. Para 1.1 provide for termination of services at any time during the tenure. Though neither there is any ground raised in the OA or amended OA to this effect nor during the course of argument, learned counsel for applicant could make out any case, but since in the Original Application there is prayer to quash the provision of para 1.1 of the appointment letter and Articles 63 (1) (f) of the Articles of Associations, NALCO, we need to deal with the same. It is stare decisis that the Court while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies and the judicial review lie only on certain well defined grounds. It is also well settled that the Courts should not ordinarily interfere with a policy decision of the State. The judicial review is a fundamental mechanism for keeping public authorities within due bounds and for upholding the rule of law and is not a tool of substituting its own decision for that of some other body. Once it is the policy decision taken by the respondents to have a provision for termination of services of CMD of NALCO before expiry of the tenure, it is not open for this Tribunal to interfere with the same. Moreover, as has been noted hereinabove, the learned counsel for applicant could not make out any case far less sufficient one to persuade us to interfere with in para 1.1 of the appointment letter or Article 63 (1)(f) of Articles of Association of NALCO. In State of U.P. and Another Vs. Johri Mal ( 2004 (4) SCC 714), Honble Supreme Court ruled thus:-
28. The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi judicial or administrative. The power of judicial review is not intended to assume a supervisory role or done the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the Courts step into the areas exclusively reserved by the supreme lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review Court. The limited scope of judicial review succinctly put are:
(i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies.
(ii) A petition for a judicial review would lie only on certain well-defined grounds.
(iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal.
(iv) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not occasions miscarriage of justice.
(v) The Courts cannot be called upon to undertake the Government duties and functions. The Court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a Judge should not be invoked as a substitute for the judgment of the legislative bodies. (See Ira Munn v. State of Ellinois, 1876 (94) US (Supreme Reports) 113).
Also in Mullikarjuna Rao and Others etc etc. Vs. State of A.P. and Others (AIR SC 1251), it has been ruled thus:-
11. This Court relying on Narender Chand Hem Raj v. Lt. Governor, Union Territory, Himachal Pradesh (1972) 1 SCR 940 : (AIR 1971 SC 2399) and State of Himachal Pradesh v. A Parent of a Student of Medical College, Simia (1985) 3 SCC 169 : (AIR 1985 SC 910) held in Asif Hameed v. State of Jammu & Kashmir, 1989 Supp. (2) SW364:(AIR 1989SC 1899) as under (Para 19):
"When a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of Policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive."
12. The Special Rules have been framed under Art. 309 of the Constitution. The power under Art. 309 of the Constitution to frame rules is the legislative power, This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution. The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution.
Once the services of the applicant could be terminated before completion of tenure, he cannot be held entitled to the terminal benefit as CMD, NALCO. Nevertheless, he would be at liberty to work out his claim for all terminal benefits admissible to him with reference to the post held by him before joining as CMD, NALCO and nothing noted hereinabove would stand in his way to work out such right.
6. In view of the aforesaid discussion and analysis, we are not inclined to interfere with the impugned orders. The OA is found devoid of merit and is accordingly dismissed. No costs.
(V.N.Gaur) (A.K.Bhardwaj) Member (A) Member (J) sk