Allahabad High Court
Shivendra Pati Tripathi vs State Information Commission Up Indira ... on 23 March, 2023
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 21 A.F.R. Case :- WRIT - A No. - 7338 of 2012 Petitioner :- Shivendra Pati Tripathi Respondent :- State Information Commission Up Indira Bhawan Lucknow And Ors. Counsel for Petitioner :- Nandita Bharti,Abhishek Mishra,Abhishek Misra Counsel for Respondent :- Shikhar Anand Hon'ble Karunesh Singh Pawar,J.
1. Heard Dr. L.P. Mishra, learned counsel for the petitioner, assisted by Mr. A.K. Mishra and Mr. Shikhar Anand, learned counsel for respondents 2 and 3.
2. Under challenge in this writ petition is the termination order dated 21.9.2012, passed by Chief Information Commissioner, U.P. State Information Commission, Indira Bhawan, Lucknow (respondent No.2). Further, a writ of mandamus has been sought commanding the respondents not to give effect to the impugned termination order, Annexure No.1.
3. Brief facts of the case are that the petitioner was appointed on the post of Peshkar vide office order dated 1.2.2007 by respondent No.2 along with eighteen other employees on various posts in the department of the respondent. The appointment of the petitioner was temporary in nature. On 27.6.2012, the Deputy Secretary, respondent No.3 sent an official letter No./303 Nazarat Camp Upsachiv wherein he apprised the petitioner that on a complaint made by an anonymous person, the respondent No.2 had directed the respondent No.3 to conduct an enquiry against the petitioner.
Mainly two allegations were levelled against the petitioner in the letter dated 27.6.2012 (Annexure No.2). The first allegation is that the amendment in the cause list has been made after accepting money from the litigants in violation of the rules and secondly, he purchased a house worth Rs.15 lacs. The petitioner was required to submit his reply within two days. The petitioner submitted a detailed reply on 12.6.2012. The petitioner was again required to provide copy of the cause list w.e.f. 1.3.2012 to 31.3.2012 vide letter dated 4.7.2012 by the respondent No.3 for the purpose of enquiry. In compliance of the said letter, the petitioner vide letter dated 5.7.2012 submitted copy of the entire cause list and also tendered apology for his omission in listing of few cases in the cause list due to inadvertence. Consequently, an enquiry was conducted by the respondent No.3, allegedly at the back of the petitioner without affording proper opportunity of hearing to him. The enquiry report was submitted by the respondent No.3, however, a copy thereof was not supplied to the petitioner.
4. The petitioner's counsel submits that the impugned order dated 21.9.2012 whereby services of the petitioner have been terminated apparently seems to be innocuously worded. A perusal of the letter dated 27.6.2012 sent by respondent No.3 to the petitioner and its language clearly demonstrates that the letter/order is, in fact, by way of punishment which is punitive in nature and stigmatic. It is submitted that Article 311 of the Constitution of India makes no distinction between the permanent and temporary posts. In case a show cause notice has been issued on the allegation regarding the mis- conduct or the charges such as charges of corruption or taking bribe in listing cases, then consequential order of termination howsoever innocuously worded may be, is not a termination simplicitor but it is a termination by way of punishment and in view of the settled proposition of law, it is always open for the court to lift veil in such cases to find out the real basis of the order so passed. In support of this contention, learned counsel has relied on High Court of Punjab & Haryana through R.G. versus Ishwar Chand Jain and another (relevant para 24). He has further relied on judgment of Supreme Court in Chandra Prakash Shahi versus State of U.P. and others (2000)5 SCC 152 (relevant para 12).
It is further submitted that not only Annexure No.2 but the counter affidavit filed by respondents, particularly para 9 thereof leaves no doubt that the impugned order has been passed by way of punishment, therefore, in view of the settled law as held in the aforesaid cases, the order is not sustainable and is liable to be quashed.
Learned counsel for the petitioner has further submitted that the petitioner who has been terminated from service for no fault on his part and the order being illegal is entitled to back wages from the date of his termination. In this context, learned counsel has relied on Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others (2013)10 SCC 324 (relevant para 20) and the judgment of Supreme Court dated 23.2.2022 passed in Civil appeal Nos. 1575-1576 of 2022 Gowramma C (Dead) by LRS vs. Manager (Personnel) Hindustan Aeronautical Ltd and another (paras 11 and 12).
5. Per contra, learned counsel for the respondents has vehemently opposed the petition and it is submitted that it is always open for the employer to assess/ascertain the suitability of an employee who is temporarily appointed as to whether to continue him in service or not, and for that purpose, an enquiry was conducted. It is submitted that the order impugned is simplicitor and not punitive. It support of his contention, learned counsel has relied on State of U.P. and another versus Kaushal Kishore Shukla (1991)1 SCC 691 (relevant para 7) and State of U.P. and others versus Rekha Rani (2011)11 SCC 441.
6. I have considered the submission advanced by learned counsel for the parties and perused the record.
7. Before scrutinising the issue involved in the petition, it would be appropriate to reproduce the allegations as levelled in the letter dated 27.6.2012 issued by Deputy Secretary, U.P. State Information Commission. The letter is quoted below :
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?????? (????? ?????? ??-11) ??? ????? ????? ?????? ???? ??0 43/ ???????/?????/2012. ?????? 26 ??? 2012 ?????? ???? ??? ?? ??????? ???? ??? ????? ????? ?????? ?? ?????? ????? ??? ??, ?? ???? ???? ???? ???? ?????? ???? ??? ??
??????? ???? ??? ?? ?????? ?? ?? ?? ?? ?? ?? ?????? ???????? ??? ???? ???? ?????? ???? ??? ??? ?????? 16,04,12 ?? 30.04.12 ?? ?? ???????? ?? ?? ????????? ?? ?????? ???? ????? ?? ???? ????? ?? ? ???? ???? ?????? ???? ?? ????? ????? ?? ???? ????? ??? ? ????? ?????? ?? 11 ??? ?????? 16,17,18,19,20,23,25,26,27,30 ?????? 2012 ?? ????????? ?? ?????? ???? 101.8397.165, 167119,46,101,161,351, ??? ????? ??? ?? ?? ?? ?? ?? ?????? ???? ??????? ??? ???, 88,57,63.135.95.87,38,169,144,149 ??? ???? ??
??? ????? ?? ????? ???? ?? ???? ??? ?? ???? ???? ????? ?? ??? ?????? ?? ?????? ???? ?? ???? ?? ????? ?? ????? ????????????? ?? ?????? ?? ??? ?????? ????? ?
??? ????? ????? ?????? ?? ?????? ????? ?? ?? ?? ???? ????? ?? ?? ???? ?? ???? 15 ??? ????? ?? ?? ???? ?? ??????? ?? ??????? ??? ?? ????????????? ?? ????? ?????? ?? ????? ??? ??? ???? ?????????? ?? ??? ???? ????? ?
??????? ???????? ?? ???????? ?????????? ????? ?? ????? ?? ????? ????????????? ?? ?????? ??????"
8. A perusal of the letter, above extracted reveals that the allegation/charge was made against the petitioner that he has taken bribe and has manipulated cause list and listed the cases according to his own whims. A further allegation was made that he has purchased a house worth Rs.15 lacs. The letter/notice dated 27.6.2012 reveals that it is undoubtedly a stigmatic charge relating to the mis-conduct of the petitioner and therefore, the termination order has been passed as a measure of punishment. Law in this regard is well settled as held in the aforesaid judgments of Supreme Court. It has been clearly held that veil can be lifted by the court to find out whether the order is based on any misconduct of the employee concerned or the order has been made bona fide and not with any oblique or extraneous purposes.
A perusal of the impugned order vis-a-vis the letter, Annexure No.2 shows that the charge of taking bribe by the applicant has been levelled, which is a mis- conduct. The impugned order, though is very cleverly worded but nevertheless, it is stigmatic and punitive in nature. Since the very language of the notice, Annexure No.2 is such which entitles the petitioner to protection of Article 311(2) of the Constitution of India as a permanent employee in spite of the fact that temporary government servants have no right to hold the post and their services are liable to be terminated any time by giving them a month's notice without assigning any reason. The termination order, though has been passed innocuously, however, if it is read along with the show cause notice, contained in Annexure-2 to the petition, coupled with the pleadings made in the counter affidavit leaves no doubt that it has been passed as a punishment and is stigmatic. In view of the settled law, thus, the petitioner was entitled for the protection of Article 311(2) of the Constitution of India and since the order of termination is punitive in nature, as such regular enquiry should have been conducted by respondents in accordance with relevant rules after affording opportunity of hearing to the petitioner, as provided under Art. 311(2) of the Constitution of India, either in terms of the contract of service or under the relevant statutory rules.
9. As regards the judgment in Kaushal Kishore Shukla's case (supra) relied on by learned counsel for the respondents, para 7 of the judgment itself shows that if the authority decides to take a punitive action, it may hold a formal enquiry by framing charges and giving opportunity to the government servant in accordance with the provisions of Art. 311 of the Constitution. It further says that a temporary government servant is also entitled to the protection of Art. 311(2) of the Constitution in the same manner as a permanent government servant. It further provides that the form of the order of termination is not conclusive and it is open for the court to determine the true nature of the order as held by Supreme Court in Parshotam Lal Dhingra versus Union of India AIR 1958 SC 36. Thus, the judgment in the aforesaid case is of no help to the respondents.
The other judgment of the Supreme Court in State of U.P. and others versus Rekha Rani (2011)11 SCC 441 relied on by respondents' counsel is also of no help as the Supreme Court in that case has held that the respondent's service was not terminated as a measure of punishment. The facts of the said case were quite distinct to the present case. Hence, the judgment in Rekha Rani's case (supra) is distinguishable on the peculiar facts of the present case.
11. As regards back wages, the Supreme Court in the case of Deepali Gundu Surwase (supra) held in para 22 as follows :
"The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter?s source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
Likewise, the Supreme Court in the case of Gowramma C (supra) has enhanced the back wages while modifying the judgment of the High Court and provided enhanced back wages to the employee. Relevant paragraphs 11 and 12 are extracted below :
"11.In regard to interference in such matters, i.e., cases relating to back wages, we find similar approach adopted in other decisions which no doubt the respondent lays store by [see in this regard 2007 (5) SCC 742]. Though the decision reported in Canara Bank v. Damodar Govind Idoorkar 2009 (4) SCC 323 again relied upon by the respondent did involve the service of the employee being terminated as he had secured employment in the reserved category using a false caste certificate and the court modified direction of the High Court which ordered full back wages by substituting the order by reducing it to 50%, we do not find that any principle has been laid down which could be treated as constituting it as a precedent. The decision in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) 2013 (10) SCC 324 involved the High Court setting aside the award of back wages on the ground that the appellant had not proved the factum of non-employment. The court inter alia laid down as follows:
?(vi) In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties re not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalized. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis--vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd., (1979) 2 SCC 80
12. The most important question is whether the employee is at fault in any manner. If the employee is not at all at fault and she was kept out of work by reasons of the decision taken by the employer, then to deny the fruits of her being vindicated at the end of the day would be unfair to the employee. In such circumstances, no doubt, the question relating to alternative employment that the employee may have resorted to, becomes relevant. There is also the aspect of discretion which is exercised by the Court keeping in view the facts of each case. As we have already noticed, this is a case where apart from the charge of the employee having produced false caste certificate, there is no other charge. Therefore, we would think that interests of justice, in the facts of this, would be subserved, if we enhance the back wages from 50% to 75% of the full back wages, which she was otherwise entitled. The appeals are partly allowed. The impugned judgments will stand modified and the respondents shall calculate the amount which would be equivalent to 75% of the back wages and disburse the amount remaining to be paid under this judgment within a period of six weeks from today to the additional appellants."
12. As observed above, the impugned order of termination of services of the petitioner is punitive in nature, it is liable to be interfered with and the petitioner would be entitled to the back wages in view of the law laid down by the Supreme Court in the aforesaid cases
13. Keeping all what has been discussed hereinabove, I am of the view that the impugned order of termination, Annexure No.1, is punitive in nature and is not an order simplicitor and thus, the petitioner is entitled to the protection of Art. 311 (2) of the Constitution of India. The order is liable to be and is hereby set aside. The petitioner shall be entitled to all consequential benefits, including 50% back wages subject to his giving an undertaking that he was not employed in any other department and not getting salary equal to the salary he was drawing prior to termination of his services or more than it.
14. The writ petition is accordingly allowed.
Order Date :- 23.3.2023/kkb/