Punjab-Haryana High Court
Sat Narain vs Haryana State Co-Operative Apex Bank ... on 5 August, 1994
Equivalent citations: (1995)IILLJ569P&H, (1994)108PLR405
JUDGMENT G.S. Singhvi, J.
1. Order of termination of service passed by the Managing Director of the Haryana State Co-operative Apex Bank Ltd. (for short the respondent) is under challenge in this writ petition. Petitioner's prayer is that the impugned order be quashed and he be ordered to be reinstated in service.
2. Facts which emerge from the pleadings of the parties are that the petitioner was appointed as a Record Keeper in the service of the respondent-Bank by an order dated April 30, 1990 (Annexure P- 1). He was placed on probation for a period of two years, which could be extended by a further period of one year. After the petitioner had served for about a year and four months, the impugned order Annexure P-4 came to be issued by the Managing Director of the respondent-Bank terminating his service on the ground that he has not been found suitable. Immediately before the passing of the order of termination of service, petitioner was called upon to submit his explanation about his work and conduct. The petitioner submitted his explanation on July 13, 1991 and according to him without taking into consideration his explanation, the Managing Director of the respondent-Bank terminated his service.
3. Petitioner has questioned the impugned order on the ground that though innocuously worded the order of termination of his service is stigmatic in character. His plea is that the foundation of termination of his service lies in the allegations of bad conduct and behaviour and not unsatisfactory performance. According to the petitioner the act of the Dy. General Manager (Administration) in calling his explanation for bad conduct and behaviour together with the averments made in para 3 of the reply clearly show that termination of service is based on the allegations of misconduct. Petitioner's assertion is that before issuing the impugned order of termination of service, the respondent-Bank did not hold any enquiry in accordance with the statutory rules and the principles of natural justice.
4. Respondents have defended the impugned order by asserting that termination of service of the petitioner was due to his unsatisfactory performance and such termination of service cannot be equated with termination of service by way of punishment.
5. Although the petitioner has raised a plea that termination of his service is contrary to Article 311(2) of the Constitution of India, in my opinion, this part of the challenge to the impugned order merits summary rejection. Petitioner was appointed in the service of the respondent-Bank which can at best be treated as an instrumentality of the State for the purposes of Article 12 of the Constitution of'India. The term 'State' used in Article 12 of the Constitution does not have the same connotation as it has in Article 311 of the Constitution of India, which applies only to the persons appointed to the services under the Union of India or a State or who holds a civil post under the State. An employee of an agency or instrumentality of the State cannot claim the status of a civil servant and is not entitled to the protection of provisions of Article 311 of the Constitution of India. This question has been examined in detail by a Full Bench of Rajasthan High Court in Bhanwar Lal v. R.T.C. (1985-I-LLJ-111). After making reference to several decisions of the Supreme Court of India, including Parshotam Lal Dhingra v. Union of India, (1958-I-LLJ- 544), Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. (1975-I-LLJ-399), the Full Bench of the Rajasthan High Court had held that holders of posts under the control of the agencies and the instrumentalities of the State cannot be treated as persons holding civil posts under the State for the purpose of Article 311.
6. Having rejected the plea of the petitioner about the applicability of the provisions of Article 311 of the Constitution of India, I shall now consider the contention of the learned counsel for the petitioner that the impugned order casts a stigma on the petitioner and, therefore, despite the absence of a specific reference to the allegation of misconduct in the impugned order of termination of service, the Court must construe it as an order of punishment and quash it on the grounds that no enquiry was held by the respondent-Bank in accordance with the canons of natural justice and no opportunity of hearing was afforded to the petitioner before punishing him by the impugned order.
7. A look at Annexure P-4 shows that termination of service of the petitioner who has been described as a person appointed on probation for two years has been brought about on account of his having not been found suitable. If Annexure P-4 was to be read in isolation, it may not be possible for the Court to accept the contention of the learned counsel for the petitioner that the impugned order is penal in nature. However, the circumstances which preceded the passing of the order of termination and averments made in the reply clearly show that termination of service of the petitioner is in reality and in substance not a termination in simpliciter but is a termination of service as a measure of punishment. Annexure P-5 is a letter written by the Deputy General Manager (Administration) of the respondent-Bank. By this letter, petitioner's explanation was sought regarding his work and conduct. The observations made by the Branch Manager and which were reproduced by the Deputy General Manager in his letter (Annexure P-5) are:
"Work and conduct of Sh. Sat Narain, Record Keeper, B.O. Panchukula is not satisfactory as well as behaviour towards superiors is not also good".
The Deputy General Manager then asked the petitioner to submit his explanation regarding work, conduct and behaviour with a specific Stipulation that in case he fails to bring about improvement, disciplinary action will be initiated against him. Deputy General Manager's communication was in the following words:
u 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".
8. In their reply, the respondents have stated (para 3) that the 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., May 7, 1990 onwards. This included various matters particularly unauthorised absence from duty, tampering with the official record and generally poor and unsatisfactory performance and behaviour. A cumulative reading of Annexure P-5 and para 3 of the reply filed by the respondents leads to a conclusion that the foundation of the termination of the service lay in the allegations of misconduct namely (1) unauthorised absence from duty (ii) tampering with official record and (iii) bad behaviour towards superiors. These allegations which find place in Annexure P-5 and para 3 of the writ petition clearly show that in reality the employer had taken action against the petitioner on specific allegations of misconduct. However, having based its action on these allegations, the employer cannot escape from the charge of having punished the petitioner in the guise of termination simpliciter.
9. Even though the petitioner was on probation, termination of his service on the basis of specific allegations of misconduct could not have been brought about without compliance of the minimum requirement of the principles of natural justice namely that no man should be condemned un-heard and even though provisions of Article 311 of the Constitution of India and particularly Article 311(2) are not applicable to the employees of statutory bodies and agencies/instrumentalities of the State, principles which form the core of Article 311 are nevertheless applicable to the employees of such bodies and institutions. In Managing Director U.P. Warehousing Corporation v. Vijay Narain Vajpayee, (1980-I-LLJ-222), the Supreme Court has declared that although Article 311 may not apply to persons who are not holders of the civil posts, once the principles of natural justice are treated as applicable, the employer will have to make an enquiry in accordance with the same principles which are applicable to a civil servant who is governed by provisions of Article 311. It can thus be said that even in respect of the employees who are directly not governed by the provisions of Article 311, it is incumbent for the employer to make an enquiry though strictly not in accordance with the provisions of Article 311 of the Constitution of India, so as to afford an opportunity to the employee to meet with the allegations of misconduct and take a decision after considering the reply submitted by the employee.
10. Whether such type of an enquiry should be made in the case of a probationer or not is an issue which stands concluded by the decision of the Supreme Court in Parshotam Lal Dhingra v. Union of India (supra) as also in Anoop Jaiswal v. Government of India and Anr. (1984-I-LLJ-337). The last one was a case of a probationer under the Indian Police Service. Termination of service of the appellant Anoop Jaiswal was brought about during the period of probation. Immediately before the termination of his service, the Director, National Police Academy, Hyderabad, had called upon Anoop Jaiswal to submit his explanation regarding his alleged absence from the training session and his act of instigating others to do the same. After he had submitted his explanation, the Government of India passed the order of termination of his service. In its order the Government of India recorded that Anoop Jaiswal appointed to the Indian Police Service on probation on the result of the Civil Services Examination held in the year 1979 is unsuitable for being a member of the said service. After making reference to its earlier decisions including the ones in Parshotam Lal Dhingra v. Union of India (supra), Sam-sher Singh v. State of Punjab and Anr. (1974-II-LLJ-465), Union of India and Ors. v. R.S. Dhaba, 1969 (3) SCC 603, The State of Bihar and Ors. v. Shiva Bhikshuk Mishra, (1970-II-LLJ-440), the Supreme Court held that in all cases of termination of service simpliciter, the Court must lift the veil and examine as to whether the termination of service is founded on allegations of misconduct, as and when the employee makes a challenge against the order of termination on the ground that in reality termination of service is as a measure of punishment. In Anoope Jaiswal's case, (supra) the Supreme Court extracted some of the observations made by the Seven Judges' Bench in Samsher Singh 's case (supra). The observations are: (p. 342):
"the form of the order is not decisive as to whether the order is by way of punishment and that 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(2).
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".
The distinction between motive and foundation has been explained by the Supreme Court in State of Bihar v. Shiv Bhikshuk Mishra (supra) and once again in Appar Singh v. State of Punjab and Ors. (1970-II-LLJ-686). In both these cases the Supreme Court held that mere form of order is not conclusive and the Court must look into the preceding circumstances in order to find out as to whether the termination of service is termination simpliciter or by way of punishment.
11. If the above principles of law are applied in the case of the petitioner, it becomes abundantly clear that the termination of the service of the petitioner, though innocuously worded, it is in reality and substance a termination of service based upon a specific allegation of misconduct and when it is in reality and substance a termination for misconduct and when it is clear that no enquiry whatsoever was made by the employer and did not associate the petitioner in such an enquiry and did not give him an opportunity to submit his defence in regard to the allegations of misconduct, it has to be held that the impugned order is contrary to the principles of natural justice.
12. In the result, the writ petition is allowed. Order Annexure P-5 is declared illegal and is hereby quashed. The intervening period shall be counted as spent in service for all purposes except actual payment of salary. No Costs.