Allahabad High Court
Mangali Prasad (State) vs State Of U.P. And Ors. on 22 March, 2012
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- SERVICE SINGLE No. - 6818 of 1992 Petitioner :- Mangali Prasad (State) Respondent :- State Of U.P. And Ors. Petitioner Counsel :- A.P. Singh Respondent Counsel :- C.S.C. Hon'ble Anil Kumar,J.
Heard Sri A.P. Singh ,learned counsel for the petitioner and learned Standing Counsel.
Facts, in brief, as stated by the learned counsel for the petitioner arethat in order to appoint the candidates on the post of Collection Amins, a selection was held as per the provisions of Collection Amins Services Rules, 1974 . In the said selection , petitioner submitted his candidature and thereafter by order dated 7.1.1991 ( Annexure no.3) , he was appointed on temporary basis on the post of Collection Amin.
Sri A. P. Singh learned counsel for the petitioner further submits that the petitioner while working and discharging his duties on the post of Collection Amin at Pilibhit , was served with a show cause notice on 26.7.1992 ( Annexure no.4) inter alia stating therein that as the recovery made by the petitioner for Fasli year 1399 is not upto the mark so why action be not taken against him for less recovery . After receiving the said notice, petitioner submitted his reply to the competent authority, thereafter nothing has been done however to the utmost shock and surprise to the petitioner , the impugned order dated 28.8.1992 has been issued by the competent authority/ Sub Divisional Officer, Philbhit, thereby terminating the services of the petitioner by invoking the provisions of U.P. Government Temporary Servants Termination of Services Rules, 1975 ( hereinafter referred to as 'Rules').
Aggrieved by the said facts, present writ petition has been filed before this Court by the petitioner under Article 226 of the Constitution of India for redressal of his grievances.
Learned counsel for the petitioner while challenging the impugned order dated 28.8.1992 ( Annexure no.2) passed by opposite party no.3 submits that the same has been passed in view of the order dated 13.1.1988 ( Annexure no.1) issued by the Board inter alia provided therein that if the collection made by the Collection Amins is less than the prescribed standard then in that circumstance they should be given a warning in respect of the period / month for which their collection is below the prescribed standards and if after giving the said warning they do not improve their collection then again one or two warnings may be given in this regard and in spite of the said fact if there is no satisfactory improvement in their collection then their services may be terminated after giving one month notice as per rule thus in view of the said Board Order in the present case the collection of the petitioner for fasli year 1399 was less then the prescribed standard ,as such a show cause notice dated 26.7.1992 was given to him in which he submitted his reply thereafter impugned order dated 28.8.1992 has been passed , so the same is by way of punishment as the less recovery / Board Order dated 13.1.1988 ( Annexure no.1) are the foundation of passing of the impugned order thus,liable to be set aside in the view of the law as laid down by Hon'ble the Apex Court in the cases of Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Limited and another J.T. 1998(8) SC 585, Depti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences Calcutta and others, 1999 (1) Judgment Today, SC 399 and Chandra Prakash Shahi Vs. State of U.P. and others, JT 2000(5) SC 181.
He further submits that the even otherwise the low collection of revenue cannot be a ground for passing the impugned order in view of the Government Orders as contained in annexure nos.6 to 8 to the writ petition as such the action on the part of the respondents thereby terminating the services of the petitioner in the garb of the less collection of revenue by invoking the provisions as provided under Rules 1975 is arbitrary in nature, thus violative of Article 14 of the Constitution of India and in support of his submission , he has placed reliance on the judgement of Hon'ble the supreme court in the case of Union of India Vs. J. Ahmed 1979 (1) SLR 842. Accordingly, he submits that the impugned order dated 28.8.1992 passed by opposite party no.3 is liable to be set aside .
Learned Standing Counsel , on the other hand , submits that as the petitioner was a temporary employee working on the post of Collection Amin at Pilibhit , his services were terminated by invoking the provisions as provided under Rules 1975 by the opposite party no.3 . It is further submitted by learned Standing Counsel that in the present case only show cause notice was issued to the petitioner to which he submitted his reply and the action on the part of the respondents cannot constitute to be a foundation for terminating the services of the petitioner but the same is a motive of passing the impugned order dated 28.8.1992 by invoking the provisions as provided under Rules 1975, so there is neither any illegality or infirmity in the impugned order which is challenged in the present writ petition.
I have heard the learned counsel for the parties and gone through the record.
The core and main point which is to be decided in the matter in question is whether the action on the part of the respondents thereby terminating the service of the petitioner as per the provisions of Rule 3 of the Rules 1975 is valid or not ?
Needless to mention that the provisions for terminating the service of temporary Government Servant by invoking the provisions as provided under Rules 1975 came into consideration by Hon'ble the Apex Court in the case of State of U.P. and another Vs. Prem Lata Misra (Km) and others (1994) 4 SCC 189 wherein it has been held that it is settled law that the court can lift the veil of the innocuous order to find whether it is the foundation or motive to pass the offending order. If misconduct is the foundation to pas the order then an enquiry into misconduct should be conducted and an action according to law should follow. But if it is motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated, in terms of the order of appointment or rules giving one month's notice or pay/ salary in lieu thereof .Even if an enquiry was initiated could be dropped midway and action could be taken in terms of the rules of order of appointment.
In the case of Radhey Shyam Shukla Vs. State of U.P. and others (2008) 1 UPLBEC 177 Hon'ble the Supreme Court after considering the various case laws viz. Triveni Shanker Saxena V. State of U.P. 1992 SCC(L&S) 440 and State of U.P. V. Prem Lata Misra (1994) 4 SCC 189 has held that in the former case, the termination order was simple order which did not cast any stigma and there were several adverse entries in the confidential reports. The termination was as per rules. In the latter case, the employees superiors complained that the employee was not regular in her work and was in the habit of leaving office during office hours. A simple order of termination was passed in terms of the order of her temporary appointment. There was no prior enquiry. In both these cases, the termination orders were upheld.
In Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Center for Basic Sciences, Calcutta and others, reported in (1999) 3 SCC,60, the Hon'ble Supreme Court in paragraph 21 of the report observed as under:-
"If findings were arrived at in an enquiry to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as " founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, as the same time, he did not want to continue the employee against whom there were complaints, if would only be a case of motive and the order would not be bad. Similarly is the position if the employer did not want to enquiry into the truth of the allegation because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid."
A perusal of the above, clearly shows that if an enquiry was conducted as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple termination is to be treated as 'founded' on the allegations and will be bad.
Similarly in Chandra Prakash Shahi Vs. State of U.P. and others, (2000)5 SCC 152, the Hon'ble Supreme Court articulated that if for determination of suitability for the post or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate the services, the order will not be punitive in nature. But , if there are some allegations of misconduct and an inquiry is held to find out the trust of that misconduct and thereafter the order of termination is passed, the order would be punitive in nature . In V.P. Ahuja v. State of Punjab,(2000) 3SCC 239, the Apex Court reiterated that services of temporary servant and even of probationer cannot be terminated arbitrarily, or can those services be terminated in a punitive manner without complying with the principles of natural justice as they are also entitled to certain protection.
In the case of State of U.P. and others Vs. Vijay Shanker Tripathi (2005) 6 SCC 135 Hon'ble Supreme Court has held that from a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either thin or overlapping. It may be difficult either to categories or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or to motive on the ground of unsuitability to continue in service.
Further, in the case of State of Haryana V. Satyender Singh Rathore (2005) 7 SCC 518 the Supreme Court has held as under:
"9. We find that the High Court did not consider the question of stigma or the effect of any enquiry held before the order of termination was passed. The question whether the enquiry purportedly held provided the motive or the foundation was required to be considered by the High Court in detail. That has not been done. The question whether the termination of service is simpliciter or punitive has been examined in several cases e.g. Dhananjay V. Chief Executive Officer, Zilla Parishad Jalna (2003) 2 SCC 386 and Mathew P. Thomas V. Kerala State Civil Supply Corp. Ltd. (2003) 3 SCC 263. An order of termination simpliciter passed during the period of probation has been generating undying debate. The recent two decisions of the Court in Dipti Prakash Banerjee V. Satyendra Nath Bose National Centre for Basic Sciences (1999) 3 SCC 60 and Pavanendra Narayan Verma V. Sanjay Gandhi PGI of Medical Sciences (2002) 1 SCC 520 after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period or probation. The learned counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Dipti Prakash Banerjee after referring to various decisions it was indicated as to when a simple order of termination is to be treated as 'founded' on the allegations of misconduct and when complaints could be only as a motive for passing such a simple order of termination.
However, in paragraph 21 of the case of Satyender Singh Rathore (supra) it was held that:
"21. If finding were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad . But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
In the case of State of U.P. and others Vs. Ashok Kumar (2005) 13 SCC 652 the Supreme Court has held that:-
"whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstance of each case. Many a time the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categories or classify strictly orders of termination simplicitor falling in one or the other category, bases on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of unsuitability to continue in service."
In view of the above said fact, the position which emerges out is that when the services of a temporary Government servant is terminated by simplicitor order of termination in view of the provisions as laid down under Rules 1975, it is to be found out whether the complaint is motive, leading to termination simplicitor or it is a foundation, as per the law as stated herein above. It can be safely said that when there is no enquiry resulting into termination order, the complaint is the motive of the order of termination, on the other hand if the complaint leads to the enquiry resulting the termination order, it is the foundation of termination order.
Now reverting to the facts of the present case, only a show cause notice has been issued to the petitioner dated 26.7.1992 ( Annexure no.4) in respect to the less revenue collection to which the petitioner on the basis of the Board of Revenue Order dated 13.1.1988( Annexure no.1) has submitted his reply but thereafter no inquiry has been initiated so the said action on the part of official respondents is a 'motive', accordingly terminating the services of the petitioner by invoking the provisions as provided under Rules 1975 is perfectly valid action on the part of the official respondent thus, the arguments advanced by the learned counsel for the petitioner that the action on the part of the respondents passing the impugned order dated 26.7.1992 in view of Order dated 13.1.1988 issued by Board of Revenue , is the 'foundation', is wholly incorrect got no force , hence rejected.
So far as the arguments advanced by learned counsel for the petitioner that the impugned action on the part of respondent no.3 thereby terminating the services of the petitioner by order dated 26.8.1992 on the ground of less recovery, is illegal rather contrary to law as laid down by Hon'ble the Apex Court in the case of Union of India Vs. J. Ahmed, 1979 (1) SLR 842 read with orders as contained in Annexure nos. 6 to 8 in the writ petition, has also got no force because in the present case, the services of the petitioner has not been terminated on the said ground but the same has been terminated by order dated 26.8.1992 passed by respondent no.3 by invoking the provisions as provided under U.P. Government Temporary Servants Termination of Services Rules, 1975, applicable on the petitioner, who is a temporary employee. Thus, the impugned order dated 26.8.1992 passed by opposite party no.2 is perfectly valid and there is neither any illegality or infirmity in the impugned order.
No other argument has been raised or pressed on behalf of the petitioner.
For the foregoing reasons, the writ petition lacks merit and is dismissed as such.
No order as to costs.
Order Date :- 22.3.2012 dk/