Punjab-Haryana High Court
The Ambala Central Co-Operative Bank ... vs The Presiding Officer, Labour Court And ... on 12 June, 1990
Equivalent citations: (1990)98PLR282
JUDGMENT K.P. Bhandari, J.
1. The admitted facts of the case are that the respondent was appointed as Secretary, Ambala Central Co-operative Bank Ltd., Ambala on 9.9.1976 on probation. It is the stand of the writ petitioner that the services of respondent No. 2 were governed by the Haryana State Central Co-operative Bank Staff Services (Common Cadre) Rules, 1975. The services of respondent No 2 were terminated vide order dated 18.5.1977, passed by the Manager, Ambala Central Co-operative Bank Limited, Annexure P.3. The order of termination reads as follows :
"On perusal of your reply dated 22.3.1977 of the charge-sheet given to you vide this office letter No. 22188/EA dated 2.3.1977, we found the above reply unsatisfactory, so your services are hereby terminated with immediate effect."
2. Aggrieved against the order of termination of his services, respondent No. 2 approached the State Government for reference to the Labour Court under Section 10 of the Industrial Disputes Act (hereinafter referred to as the Act). The Labour Court vide award dated 2.4.1987, Annexure P. 4, let aside the order of termination of Services of Respondent No. 2 and directed his reinstatement from the date of the termination of his services with continuity of service with full back wages. Aggrieved against the award, the petitioner has filed the present writ petition.
3. I have heard the counsel for the parties at considerable length and have also gone through the record. Mr. S. S. Dalal, counsel for the petitioner bank has vehemently argued that the petitioner was a probationer and his services have been terminated during the period of probation without casting any stigma and, therefore, the Labour Court has gone wrong in setting aside the order of termination. It is obvious from the order Annexure P. 2 that the respondent was served charge-sheet and his reply was taken and thereafter the Manager of the Bank recorded that the reply to the charge-sheet was unsatisfactory and therefore, his services were terminated. A plain reading of the order leaves no manner of doubt that the order of termination has been passed by way of punishment. It casts a stigma on respondent No 2. Mr. Dalai placed before the Court the Administrative file of the case. A perusal of the file clearly shows that the respondent was placed under suspension on 21.1.1977. The order of suspension reads as follows:--
No. 2219/22134 21st January, 1977 Sh. Sarab Singh, Manager, The Bilkhanwala Manglore Co-operative Credit & Service Society Ltd. V. Bilkhan Wala Manglore, P.O. Mugal Wali. Teh. Jagadhri, Distt. Ambala. Memo.
Worthy President of the Bank vide his order dated 19.1.1977 has placed you under suspension with immediate effect, so you are hereby directed to report at Head Office of the Bank at Ambala City after handing over your charge to the Field Sub Inspector concerned immediately. Show-cause notice will follow."
Thereafter he was given a charge-sheet dated 2.3.1977. The charge-sheet reads as follows :--
"Ref. No. 2765 Dated 2nd March, 1977 Sh. Sarab Singh, Manager, Mini Bank (Under suspension)
In continuation of this office letter No. 22129, dated 21.1.77 I Matu Singh, Manager of the Ambala Central Co-operative Bank Ltd., Ambala City serve you with the following charge-sheet. You are further asked to send your explanation in connection with the charges within 15 (fifteen) days from the date of receipt of this charge-sheet If you fail to explain your position within fixed time, it will be presumed that you have nothing to say in your defence and the charges are correct for which the matter will be placed before the Administrative Committee for further action against you. The Charges are as under :
1. You generally remainded absent from your duties without any leave
2. You took Its. 10/- from each member as bribe for the advancement of loan.
3. You have committed so many irregularities in cash book.
4. You have shown excess expenditure of Rs. 909.50 which you have also confessed in writing
5. You did not hand over your charge to the Field Sub In spector Incharge when you were transferred from Bhaterli to Bilkhan Wala Manglore.
6. You have not handed over the cash in hand to the Manager of Mini Bank Bhaterli to whom you handed over the charge.
Sd/- Manager. H.O. 2.3.77.
Respondent No. 2 gave reply to the charges and denied the same vide his reply dated 22.3.1977. No evidence was recorded by the bank nor any opportunity to produce the defence evidence was given to the respondent Thereupon on 25.4.1977, the case was examined by the Establishment Accountant. A note of the Establishment Accountant reads as follows :--
"The Chief Executive Officer, Through :--Manager, H. O. Sir, In terms of the decision of the Administrative Committee dated 19.4.77, I am submitting herewith the whole case of Sh. Sarab Singh. Manager, Mini Bank under suspension for your study and order. The brief history of the case is as under :
The some members of the Bhaterli Co-operative Credit and Service Society has made a complaint with the Bank against the Manager of the Mini Bank Sh. Sarab Singh which was forwarded to the Development Officer, Yamuna Nagar for enquiry and report The Development Officer has reported that the above Manager usually remains absent from his duties, leaves the office frequently, committed so many irregularities in the Cash Book showing excess expenditures etc. embezzled and misappropriated the amounts etc. This report was placed before the worthy President, who has suspended him. The order of the suspension was conveyed vide letter No. 22129 -- 221 34/FA, dated 21.1.77 and under No. 2(sic)65/EA, dated 2.3.77 given the charge sheet In the reply Sh. Sarab Singh has denied almost from all the charges levelled against him The reply was placed before the Administrative Committee which has authorised your good self to study the whole case and take action accordingly.
Submitted for kind perusal and order.
Sd/-
Establishment Accountant, 25.4.1977."
Thereafter the order of termination of the services was passed, No show-cause notice was given to respondent No 2 before passing the order of termination of services. The facts and circumstances of the case clearly show that disciplinary proceedings were drawn against respondent No. 2 and thereupon without holding any enquiry against him as required by the provisions of Rule 28 of the Haryana State Central Co operative Banks' Staff Service (Common Cadre) Rules, 1975, the services of respondent No. 2 were terminated. Rule 28 reads as under: -
"28 (a) No penalty shall be imposed on any employee unless the charge or charges on which it is proposed to take disciplinary action against him, have been communicated to him in writing and he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him, or.
(b) In case of all punishments excepting minor misconduct the authority competent to impose the penalty shall hold an enquiry into the charge or charges or cause such an enquiry to be held by an Officer superior to the person against whom the action is proposed to be taken for the purpose of ascertaining the truth or otherwise of the charge or charges the employee concerned shall be permitted to produce or cite witness on his behalf and examine the relevant documents, but shall not be allowed to engage counsel at the enquiry.
In the present case respondent No. 2 was not even given show-cause notice
4. The test for determining whether the termination of the service of a Government servant amounts to punishment or the order simplicitor is exhaustively laid down by the Supreme Court in P. L. Dhingra v. Union of India, A. I. R. 1958 S. C. 36. S. R. Dass, Chief Justice, speaking for the Court observed as follows :--
"In short, if the termination of services is bounded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no civil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, 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."
5. In Jagdish Mitter v. Union of India, A. I. I. R. 1964 S. C. 449 the impugned order stated that the services of the employees concerned were terminated because he was undesirable. Gajendragadkar, J. speaking for the Constitutional' Bench observed as under:--
"Held that when the order referred to the fact that the servant was found undesirable to be retained in government service, it expressly cast a stigma on the servant and in that sense, must be held to be an order of dismissal and not a mere order of discharge. To say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case, a stigma attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attaches to him. Anyone who reads the order in a reasonable way, would naturally conclude that the servant was found to be undesirable and that must necessarily import an element of punishment which was the basis of the order and was its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching stigma to the character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. As the impugned order was construed as one of dismissal, the servant had been denied the protection guaranteed to temporary servants" under Section 240(3) of the Government of India Act, 1983 or Article 311(2) of the Constitution, and so, the order could not be sustained."
6. In Madan Gopal v. State of Punjab, A.I.R. 1963 S. C. 551 the services of a temporary employee were terminated by giving one month's salary by simple order but the order of termination was proceeded by an enquiry. Shah, J. speaking for the Bench observed : --
"Where the employment of a temporary Government servant, even though liable to be terminated by notice of one month without assigning my reason, is not so terminated, but instead the superior officer chooses to hold an enquiry into his alleged misconduct, the termination of service is by way of punishment be cause it outs a stigma on his competence and thus affects his future career. In such case, he is entitled to the protection of Article 311(2) of the Constitution And as the protection of Article 311(2) of the Constitution applies as much to a temporay public servant as to permanent public servants, by virtue of Article 311, the Government servant is not liable to be dismissed or removed from service until he has been given reasonable opportunity against the action proposed to be taken in regard to him."
7. In Shamsher Singh v. State of Punjab, A.L.R. 1974 S. C. 2192 the Constitutional Bench of seven Judges of the Supreme Court examined the question as to the character of the order of examination passed against the probationer. Ray, Chief Justice speaking for the Bench observed that the form of the order is not decisive. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then probationer is entitled to the protection of Article 311. The substance of the order and not the form would be decisive The Supreme Court in this case came to the conclusion that the order terminating the services of the probationer was by way of punishment and therefore, it violates the provisions of Article 311 of the Constitution. Recently in Anoop Jaiswal v. Government of India, A. I. R. 1984 S. C. 636. Venkatramiah, J. considered the case of probationer I P S. and came to the conclusion that the order of termination although innocuous in form was preceded by allegations into which the enquiry was made and therefore, the order is by way of punishment. So, in may opinion, the legal position is well settled by the Supreme Court that if the order of termination of services of probationer on the face of it casts stigma then the impugned order is by way of punishment and the same cannot be passed without holding proper enquiry and without issuing show-cause notice to the delinquent officer. Secondly, even if the order is innocuous but is preceded by an enquiry into the allegations against the delinquent officer which shows that the intention of the authority concerned was to punish the delinquent officer, even then action would be considered by way of punishment. In the present case, it is quite clear that in the first place the concerned authority placed respondent No. 2 under suspension, gave him a charge-sheet and took reply from him and without holding proper enquiry ordered the termination of the services of respondent No. 2. This could not be done in view of the mandatory provisions of Rule 28 of the Rules.
8. Moreover, in this case the respondent No. 2 was not given reasonable opportunity of showing cause against the proposed action. No show-cause notice was issued to respondent No. 2 before passing the order of termination It has been laid down by the Privy Council in High Commissioner for India v. P. M. Lall, A. I. R. 1943 S. C. 121. that after the enquiry is over in order to comply with the requirements of law, reasonable opportunity to show-cause against the proposed action in terms of Section 240, Government of India Act, 1995, it is necessary that the show-cause notice should be given to the employee indicating the punishment which is proposed to be imposed The decision of the Privy Council was approved by the Supreme Court in Khem Chand v. Union of India, A. I. R. 1985 S.C. 300. It is admitted case of the petitioner that no show-cause notice was given to respondent No. 2 before terminating his services For this reason, the impugned order Annexure P. 3, on the face of it, is violative of Rule 28 a) of the Rules as no show-cause notice was given to respondent No. 2 before passing the impugned order.
9. In addition, the order Annexure P 3 is cryptic and non-speaking The authority concerned has not applied its mind to the facts of the case and has not cared to record the findings as to what charges are proved. It has been laid down by the Supreme Court in State of Punjab v. Bokhtawar Singh, A. I. R. 1972 S. C. 2083 that the order of removal from service should be a speaking order. It should take note of all the points raised in the representation by the affected persons. Again, this Court in Ram Das Chaudhry v. State of Punjab, 1968 S. L. R. 792 Vijay Singh v. State of Punjab, 1971 (1) S. L. R. 720. and Rajinder Pal v. State of Punjab, 1971 (2) S. L. R. 130 has laid down that the order awarding punishment should be a speaking order. In the present case the order does not give any ground or reason. For this reason also the impugned order Annexure P. 3 suffers from inherent illegality. The Labour Court has rightly came to the conclusion that the order of termination is illegal and respondent No. 2 deserves to be reinstated with full back wages.
10. It may be noticed that before the Labour Court no request was made by the Bank to produce evidence regarding the charges. No evidence was produced before the Labour Court So, Labour Court rightly set aside the order of termination of the services of respondent No. 2.
11. It was noticed that in the writ petition the writ petitioner has changed his stand stating in the petition that the order of termination is in accordance with the terms and conditions of service during probation. The stand of the petitioner is set out in para 10 of the writ petition. Even if it is accepted that it is a simple order of termination, then the order of termination cannot be sustained because termination of service of Probationer during the period of probation amounts to retrenchment within the meaning of Section 25F of the Industrial Disputes Act In the present case, respondent No. 2 was not given retrenchment benefits as laid down in Section 25 of the Act. He was rather given one month's pay notice and not retrechment compensation as laid down in Section 25F of the Act. In Karnataka S. R. T. C. v. V. M. Boraiah, (1984) (1) S. C. C. 244, it has been laid down that the provisions of Section 25F of the Act are applicable to the probationer, Consequently, the order of termination is clearly violative of Section 25F of the Industrial Disputes Act.
12. Mr. Dalai, counsel for the petitioner argued that the findings of the Labour Court regarding the charges are erroneous. The award of the Labour Court is detailed one. All aspects of the charge-sheet have been discussed Mr. Dalal has not been able to point out any error of jurisdiction in the award of the Labour Court. Under Article 226, for issue of a writ of certiorari there should be error of jurisdiction or finding based on no evidence. Simply because the finding of the Labour Court is erroneous on facts is no ground for interference by this Court under Article 226A of the Constitution. In this view of the matter. I do not find any merit in this argument of Mr. Dalal and reject the same.
13. Thus, considering from any angle, the order of termination of services of respondent No. 2 Annexure P 3, cannot be sustained and has been rightly set aside by the Labour Court Consequently, this petition fails and is dismissed with costs. Counsel's fee Rs. 500/-. Ambala Central Co-operative Bank Ltd., Ambala is directed to reinstate respondent No 2 within 15 days and pay foil back wages to him with 12% interest from the date of termination till the date of reinstatement.