Chattisgarh High Court
Rr Naidu vs The State Of Madhya Pradesh Now ... on 25 March, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 792 of 1995
RR Naidu
...Petitioners
Versus
The State of Madhya Pradesh now Chhattisgarh and others
...Respondents
! Shri Somnath Verma counsel for the appellant
^ Shri Sushil Dubey Government Advocate for the State respondent No 1 Shri Ashish Shrivastava counsel for respondents No 2 an
CORAM: Honble Shri Justice Prashant Kumar Mishra
Dated: 25/03/2010
: Judgement
JUDGMENT
Second Appeal under Section 100 of the Code of Civil Procedure The instant second appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 23-8-1995 passed by the 7th Additional District Judge, Bilaspur in Civil Appeal No.13- A/1993 affirming the judgment and decree dated 23-12-1992 in Civil Suit No.161-A/1991 by 6th Civil Judge Class-II, Bilaspur dismissing the plaintiff/appellant's suit for a declaration that the order dated 10-6-1968 passed by respondent No.2, the District Judge, Bilaspur terminating his services was illegal and void and that the plaintiff be continued in the service as a Lower Division Clerk.
2. The present second appeal was initially admitted on 5-7-1996 by formulating the following substantial questions of law:
"1) Whether the Courts below were justified in holding that the suit of the plaintiff is barred by limitation when admittedly the appellate order was passed on 16-12-68 and the suit was filed within three years from the date of said order?
2) Whether under the facts and in the circumstances of the case the Courts below were justified in holding that the order of the termination passed is legal, valid and justified?"
3. The second appeal was eventually dismissed by this Court by judgment dated 12-11-1998 inter alia finding that the suit as against respondents No.2 and 3 was barred by limitation as also for want of notice to them under Section 80 of the Code of Civil Procedure, 1908. Though the second substantial question of law was answered in favour of the appellant by holding that the order of termination of service of the appellant is apparently camouflaged for an order dispensing with his service on account of misconduct and, thus, the order of termination, in the circumstances, could not have been passed. The appellant, thereafter, took-up the matter before the Hon'ble Supreme Court in S.L.P. (Civil) No.4293/99. The Hon'ble Supreme Court, by its order dated 18-11-1999, condoned the delay in filing the suit against respondents No.2 and 3, however, while considering the High Court's order reversing the finding of the first appellate Court and in holding that the order of removal is bad in law, the Hon'ble Supreme Court has ordered thus:
"xxxxx xxxxx
xxxxx
So far as the finding of the appellate court on the question of validity of the removal order was concerned it was necessary for the High Court to call for the original record relating to the removal of the plaintiff and find out the circumstances immediately preceding the order of the removal to find out whether the removal was based upon any categorical findings arrived at in order to find out his guilt. This should have been done under Order 41, Rule 27(1)(c) of the C.P.C. as a requirement of the Court for enabling it to pronounce a satisfactory judgment (See K.Venkata Ramaiah vs. Seetarama Reddy (AIR 1965 SC 1526).
We are of the view that the High Court could not have given any finding as to the punitive nature of the order without looking into the record. In this connection the judgments of this Court in Radhey Shyam Gupta vs. U.P.State Agro Industries Corporation Ltd. 1992 (2) SCC 221 and Dipti Prakash Banerjee vs. Satyandra Nath Bose National Centre for Basic Sciences, Calcutta & Ors. 1999(3) SCC 60 contain a review of the case law on the subject as to when allegations can be said to be `motive' or `foundation' in a termination simpliciter. The judgments show that it is necessary to look into the file to know the background and whether any finding as to guilt is recorded.
The finding of the High Court is therefore, set aside and the matter is remanded to the High Court. It will now be for the High Court to call for the record form the Administrative side of the Court of the District Judge or from the Office of the Registrar of the High Court and examine whether the allegations against the appellant were the foundation for the removal or whether they were only the motive. For the aforesaid reasons while reversing the order of the High Court on the question of limitation, we remit the matter to the High Court for decision on the question as to whether the order of removal was punitive or not. It should not be understood that we have expressed any opinion on the merits relating to the validity of the order of removal.
The appeal is allowed to the extent above. There shall be no order as to costs."
4. After receipt of the matter on remand, the High Court directed for summoning of the record and the Additional Registrar (Judicial) was directed to take steps in the matter. As reflected in the order-sheet dated 6-9-2000, the Additional Registrar (Judicial), in his report dated 8-8-2000, indicated that the District Judge, Bilaspur has informed that the record of the original enquiry against the appellant is untraceable in the office of District Judge, Bilaspur and that efforts are being made to contact the Accountants, who were posted at Bilaspur since 1968 in order to trace out the record. The High Court directed that reminders be sent to the District Judge, Bilaspur for sending the record of the enquiry at the earliest.
5. This Court, thereafter, on the prayer made by learned counsel for the appellant, formulated three additional questions of law on 18-7-2001.
6. When the record from the administrative side of the Court of District Judge was not made available, this Court, by its order dated 11-9-2001, directed the Registrar of the High Court or any competent officer of the District Court, Bilaspur to file affidavit mentioning about the record. The order-sheet of this appeal recorded on 29-4-2002 reads thus:
"xxxxx xxxxx
xxxxx
In terms of the order passed by the Apex Court this appeal has to be re-heard on merits and a decision has to be given on the question as to whether the order of the removal of the appellant was punitive or not. This finding is to be arrived at on the basis of the service record of the appellant. On remand, as the record indicates requisition was sent to the Registrar General of High Court of Madhya Pradesh at Jabalpur for sending the record but as the affidavit filed by the Deputy Registrar (Judicial) of this Court indicates that the service record of the appellant has not been received. A requisition was also sent to the District Judge, Bilaspur but it is clear from the affidavit filed by the then District Judge Shri J.K.S.Rajput that the record was not traceable at the time of filing of the affidavit. There is nothing on the record to indicate that the record has been lost. It is, therefore, directed that prompt and immediate steps should be taken to trace out the record and in case they are not able to trace it out and it is felt that the record has been lost or destroyed, then a positive affidavit to that effect should be filed so that the appeal can be proceeded with.
Call this matter immediately after ensuing summer vacation.
In the meanwhile, as directed, steps should be taken to comply with the directions.
Let a copy of this order be handed over to learned counsel appearing for opposite parties No.1, 2 & 3."
7. The order-sheet of this appeal on 20-6-2002 further records thus:
"xxxxx xxxxx
xxxxx
An affidavit has been filed by Smt.
Sakuntala Das, District and Sessions Judge, Bilaspur to the effect that the concerned service record relating to the appellant R.R. Naidu has been lost. Shri R.S.Thakur and Shri M.L.Dewangan of the Establishment Section of the District Court also filed an affidavit to the effect that the record is not available and has been lost.
In this view of the matter, in case the appellant has in his possession any relevant documents concerning his service, that may be filed in Court. However, as the learned counsel for the appellant is not available in spite of repeated calls, the matter is adjourned."
8. This Court, thereafter, by its order dated 29-8-2002 again directed the Registrar General of the High Court to take all possible steps to search the record. The order- sheet dated 29-8-2002 records thus:
"xxxxx xxxxx
xxxxx
In view of the order dated 18th November, 1999 passed by the Apex Court in S.L.P.(Civil) No.4293 of 1999 the record has to be called for from the Administrative side of the Court of the District Judge or from the office of the Registrar of the High Court, and the record has to be examined whether the allegations against the appellant were the foundation for the removal or whether they were only the motive.
Affidavit of District Judge, Bilaspur has been filed but affidavit of the Registrar of the High Court, as directed by Hon'ble the Supreme Court in its order dated 18-11-99 has not been filed. Let that be filed within 7 days from today and copy of the same be supplied to the other side. Registrar General (as now designated) of the High Court to take all possible steps to search the record.
xxxxx xxxxx
xxxxx"
9. The Registrar General of the High Court, thereafter, filed his affidavit dated 5-9-2002, which is recorded in the order-sheet dated 11-9-2002 to the effect that the record could not be traced and it is found missing.
10. This Court, by order dated 6-2-2008, directed for an enquiry into the non-availability of File No.II-11-3/68 pertaining to the office of District and Sessions Judge, Bilaspur and fix responsibility for the same, and based on the findings of the enquiry, file an affidavit before this Court within six weeks. The enquiry report was, thereafter, filed, as recorded in the order-sheet dated 16-4-2008.
11. Thus, the original record relating to the removal of the plaintiff to find out the circumstances immediately preceding the order of the removal is not available before me, as the same are not traced out being lost. The appeal is, therefore, required to be decided on the basis of documents available on the record.
12. Undisputedly, the plaintiff/appellant was temporarily appointed as Lower Division Clerk (IInd Grade) by the District and Sessions Judge, Raipur vide Order No.19/II-11-1/60 dated 18th February, 1961. Thereafter, the Bilaspur Civil District was formed and the services of the plaintiff/appellant were transferred to the establishment of District and Sessions Judge, Bilaspur. The plaintiff/appellant was posted as Deposition Writer. He then worked as Execution Clerk, Assistant Copyist and Assistant Record Keeper in the establishment of District and Sessions Judge, Bilaspur. The District and Sessions Judge, Bilaspur by Order No.167/II-11-3/68 dated 10-6-1968 terminated his service with effect from 13-7-1968. The plaintiff/appellant served notice dated 29-5-1971 on the respondent/defendant No.1 under Section 80 of the Code of Civil Procedure, 1908. The present suit was filed on 13-9-1971 against the respondent No.1, the State of Madhya Pradesh (now Chhattisgarh).
13. The plaintiff alleged that he was appointed against a permanent post in a clear vacancy by order dated 12-10- 1961 by the District Judge, Bilaspur. He continued to work against such vacancy and was even permitted to cross his Efficiency Bar. Therefore, he should be deemed to have been appointed on probation of two years. The period of probation was never extended. Therefore, he acquired quasi-permanent status. Therefore, without holding any enquiry and without giving an opportunity of hearing, his services could not have been terminated. It has also been averred that the record of the trial Court received in respect of Criminal Revision No.16/1966 was lost. In the preliminary enquiry held regarding the same, the plaintiff/appellant was found to be responsible along with his predecessor, Swami Prasad Pastore. It was also found in the preliminary enquiry that the plaintiff/appellant committed certain irregularities as Assistant Record Keeper, as he was found to be having in his custody records, which were in the charge of other Record Keepers. Some other irregularities were also found in the preliminary enquiry, but no departmental enquiry was held against him and the order of termination dated 10-6-1968 was passed against him. It has been further averred that the order dated 10-6-1968 terminating his services with effect from 13-7-1968 was punitive in nature and was illegal and void, as no opportunity of hearing was given to him. The said order was hit by Article 311 of the Constitution of India. It was also averred that the cause of action arose on 13-7- 1968 on the date of the impugned order becoming effective.
14. Initially, by judgment dated 24-4-1978 the trial Court decreed the suit of the plaintiff/appellant. However, the appeal against the said judgment and decree was allowed and the trial Court's judgment and decree were reversed and the suit was dismissed. Against that appellate judgment, the plaintiff/appellant came-up in second appeal (Second Appeal No.358/1981) before this Court. During the pendency of that second appeal, an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 was filed praying that respondents No.2 and 3, i.e., District Judge, Bilaspur and Registrar, High Court of M.P., Jabalpur, being necessary parties, may be permitted to be added as such. This Court in Second Appeal No.358/1981 allowed the said application holding that the District Judge, Bilaspur and the Registrar, High Court are necessary parties to the suit and they were ordered to be added as parties. The judgments and decrees passed by the Courts below were set aside and the case was remitted back to the trial Court - 1st Civil Judge, Class-II, Bilaspur, with the directions to decide the case afresh on merits, after giving opportunity to the newly added parties.
15. In the second round of trial, the learned trial Court dismissed the suit of the plaintiff/appellant holding that the suit is barred by limitation. The lower appellate Court, by the impugned judgment dated 23-8- 1995, affirmed the judgment and decree of the trial Court. Against the said judgment and decree, the instant second appeal has been filed.
16. This appeal was earlier admitted by framing two substantial questions of law and the appeal was finally dismissed by the judgment dated 12-11-1998. Against the said judgment dated 12-11-1998, the appellant preferred S.L.P. (Civil) No.4293/99, which was partly allowed. The Hon'ble Supreme Court, after condoning the delay in filing the suit, remitted the matter to this Court for decision on the question as to whether the order of removal was punitive or not.
17. When the matter was received after remand, this Court, by its order dated 18-7-2001, framed the following substantial questions of law for determination:
"(A) Whether the allegations against the appellant were the foundation for removal or only motive?
(B) Whether the order of removal was punitive?
(C) Whether under the facts and in the circumstances of the case the Courts below were justified in holding that the order of the termination passed is legal, valid and justified?"
18. All the above three questions of law framed by this Court are interconnected and the core issue/substantial question of law to be decided, as directed by the Hon'ble Supreme Court, is "Whether the order of removal of the appellant was punitive or not?".
19. Learned counsel for the appellant has argued that this Court should draw adverse presumption against respondents No.2 and 3 under Section 114 of the Indian Evidence Act, 1872 for their failure to submit the original record as directed by the Hon'ble Supreme Court.
20. On the other hand, learned counsel for respondents No.2 and 3 submits that in view of the fact that the matter pertains to the year 1967-68 and the records are not traced being lost, the adverse presumption cannot be drawn against respondents No.2 and 3.
21. Respondents No.2 and 3 have conducted enquiry on the direction issued by this Court and have filed affidavits that the relevant documents, i.e., service record of the appellant (File No.II-11-3/68) were missing and are not available in the concerned Court/Establishment.
22. In Surendranagar District Panchayat vs. Dahyabhai Amarsinh, (2005) 8 SCC 750, the Hon'ble Supreme Court, in the last part of paragraph 18 of the report, has held thus:
"18. ......... The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have been proved." (underlined by me)
23. In C.Jacob vs. Director of Geology and Mining and another, (2008) 10 SCC 115, the Hon'ble Supreme Court, in paragraph 13 of the report, has held thus:
"13. Where an employee unauthorisedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches the court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back wages for 20 years, (underlined by me) ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back wages."
24. In Mt. Atra Devi and others vs. Ramswaroop Prasad Singh and others, AIR 1972 Patna 186, the Patna High Court, in paragraph 11 of the report, has held thus:
"11. Learned Counsel for the appellants further contended that plaintiff No.1 was one of the trustees of the Math Committee and he was friendly with the president of the Trust (defendant No.11). Therefore, he could have easily filed the laggit which was prepared by the Math after the lands were allegedly settled with the plaintiffs and the two rent receipts which were granted per pen of P.W. 10 to plaintiffs 1 and 2 at the instance of Mahanth Bisheswara Nandji; the bahi of the Math showing that nazrana of Rupees 1000/- was paid by the plaintiff No.1 at the time of settlement; and the account book of the Math maintained by the cashier to show that rents paid by plaintiffs 1 and 2 were duly recorded therein. Instead of filing these documents as mentioned earlier, even the counterfoil of rent receipts from the year 1347 to 1360 Fasli regarding tauzi No.7936 of village Hussain Chak which were produced on behalf of the Math, were withdrawn from the Court in the said title suit through an application dated 26-11-57 (Ext. F). Therefore, he submitted the adverse inference ought to have been drawn by learned Additional Subordinate Judge for non-filing of laggits etc. and for withdrawing the counterfoil receipts referred to above, under Ext. F. In my opinion, simply because plaintiff No.1 was one of the trustees of the Math, it cannot be presumed that those documents were in the control of plaintiff No.1. It is admitted case that the president of the Trust was the Mahanth, defendant No.11. It may be recalled that the learned Subordinate Judge had already observed that the Math estate was in the habit of setting one tenant against the other and although the present Mahanth was added as defendant No.11, he took no interest in the suit; nor he filed written statement. In that view of the matter it cannot be held that defendant No.11 was helpful to plaintiff No.1, and the documents of the Math were in the control of plaintiff No.1.
In Devidas v. Shri Shailappa, (AIR 1961 SC 1277) their Lordships while dealing with Section 114, illustration (g) of the Evidence Act observed that where there is no evidence on the record to show that the document was with the plaintiffs or within their power and that it was withheld from the Court, the Court would refuse to raise an adverse inference against the plaintiffs." (underlined by me)
25. In Chiranjilal Agrawal vs. Rikhabdass, AIR 1959 Rajasthan 291, the Rajasthan High Court, in paragraph 13 of the report, has held thus:
"13. The dispatch register and the list of subscribers which were summoned by the plaintiff, were not produced by the defendant, but on summons being issued, he gave a statement on 12-5-1951, that those documents were not in his possession, because the control over Janta passed from the defendant to Mr. Kishan Lal Advocate some time near about March or April, 1949. He produced a statement of Mr. Kishanlal on oath, which he gave in the criminal case of defamation on the basis of the same article which is in dispute here. In that statement Mr. Kishanlal admitted having received all the record from the previous editorial staff, when he took charge of the Janta newspaper in May, June or July, 1949, but stated that it was destroyed by the staff of Kishanlal later on or sold away as waste paper. He said in that statement that Mr. Chiranjilal, when he came to know of it, was very cross with Kishanlal.
Now a presumption can only arise if a relevant document in the possession of the opposite party is not produced in spite of notice to produce it. In the present case, the documents though relevant, were stated to have been destroyed at least some time before 5-8- 1950, when Kishanlal gave the statement on oath in the other case. It has not been shown positively that the documents still exist. It was possible, at any rate, in the criminal case, to obtain a search warrant for the said documents which could prove that the statement on oath made by Kishanlal was false. Be that as it may, the statement of Mr. Chiranjilal that the documents which passed from his hands to Kishanlal got destroyed when in the charge of Kishanlal furnishes the explanation why the document could not be produced. (underlined by me) Where there is an explanation, which is plausible, there is no ground for raising any adverse inference. (underlined by me) It depended upon the arrangement between the previous editors and the subsequent editors of Janta newspaper as to how the documents were to be disposed of, and it is not unnatural for the subsequent editors to receive the correspondence papers or registers which were then current at the time of the change in the editorial staff. The responsibility of being the editor, printer or publisher is not denied by the defendant, and the defendant could only think that he may be called upon to answer for any act attributable to him in a competent court.
He had obviously no necessity to keep the correspondence or registers, for he could not then think that he would be answerable in a court whose jurisdiction could also be questioned. At any rate, the defendant was not under any obligation to assist the plaintiff to prove that the court had jurisdiction, and he could not at the time of handing over charge keep these documents for the purpose of assisting the plaintiff, if he chose to institute a suit in court other than at Jaipur where the editing, printing and publication of the paper was known to have been made."
26. The present suit was instituted on 13-9-1971. Respondents No.2 and 3 could not trace the record when they were directed to do so after the judgment passed by the Hon'ble Supreme Court on 18-11-1999, i.e., after 28 years of the institution of the suit (30 years from the date of removal). It is not a case where the documents or the evidence are available with respondents No.2 and 3 and yet they have refused to produce the documents, therefore, in view of the law laid down by the Hon'ble Supreme Court in Surendranagar District Panchayat vs. Dahyabhai Amarsinh (supra) and C.Jacob vs. Director of Geology and Mining and another (supra), an adverse inference cannot be drawn against respondents No.2 and 3.
27. Learned counsel for the appellant, thereafter, submitted that the order of removal was, in fact, passed on account of loss of record in Criminal Revision No.16/1966 and on account of various irregularities and lapses alleged against him and that a preliminary enquiry was held by the District Judge, Bilaspur but without giving him any notice or opportunity of hearing or holding any regular enquiry, his services have been brought to an end, which are violative of the principles enshrined under Article 311 of the Constitution of India. He has relied on the judgment rendered by the Hon'ble Supreme Court in Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and another, 1999 AIR SCW 207, The State of Punjab vs. Dharam Singh, AIR 1968 SC 1210, A. Raghavamma and another vs. A. Chenchamma and another, AIR 1964 SC 136, A.D.Tannirwar vs. State of M.P. and another, 1976 MPLJ 667 and Mahesh Chand Jain vs. State of M.P., 1980(I) MPWN Note 339. He has also relied on Anoop Jaiswal vs. Government of India and another, AIR 1984 SC 636 and Om Prakash Goel vs. The Himachal Pradesh Tourism Development Corporation Ltd., Shimla and another, AIR 1991 SC 1490.
28. Per contra, learned counsel for respondents No.2 and 3 has submitted that the appointment of the appellant vide order dated 18-2-1961 (Ex.D-5) was purely on temporary basis until further orders in place of one Swami Prasad Pastore and was specifically mentioned in the appointment order that the services of the appellant will be liable to be terminated at any time without any notice and without assigning any cause. Learned counsel has further submitted that the appointment was not made under any constitutional scheme nor was it made in pursuance to any selection-process, therefore, the appellant has no right to hold the post and the order of removal is in the nature of a removal simpliciter and not punitive as his services were no longer required and that no stigma was caused on the appellant in the said order of removal.
29. To appreciate the rival submissions made by learned counsel for the parties, this Court shall now examine the records available with the Court.
30. The appellant/plaintiff has filed only one document, i.e., Ex.P-1, which is a notice under Section 80 of the Code of Civil Procedure, 1908 issued to respondent No.1/the State. Respondents No.2 and 3/defendants No.2 and 3 submitted the following documents in course of their evidence:
(1) Ex.D-1 Service book of the appellant (2) Ex.D-2 Certificate dated 5-6-1967 allowing the appellant to cross efficiency bar (3) Ex.D-3 Order dated 12-8-1966 transferring the appellant from the post of Execution Clerk to the post of Copyist (4) Ex.D-4 Order dated 27-7-1967 transferring the appellant from the post of Officiating Copyist to the post of Execution Clerk (5) Ex.D-5 Copy of the appointment order of the appellant dated 18-2- 1961 (6) Ex.D-6 Order dated 5-6-1967 granting periodical increment to the appellant (7) Ex.D-7 Copy of memorandum dated 15-6-
1968 by the 1st Additional District and Sessions Judge, Bilaspur to the District and Sessions Judge, Bilaspur regarding missing of record of Nyay Panchayat Khamaria (8) Ex.D-8 Copy of order of removal of the appellant along with three other clerical staff on the ground that their services are no longer required (9) Ex.D-9 Copy of the office order issued by the District and Sessions Judge, Bilaspur on 12-10-1961 posting the appellant as Execution Clerk (10 Ex.D-10 Copy of the order dated 7-1-
) 1965 by the District and
Sessions Judge, Bilaspur
posting the appellant in the
Copying Section
(11 Ex.D-11 Order of the District and
) Sessions Judge, Bilaspur dated
13-11-1967 posting the
appellant as Officiating
Assistant Record Keeper
(12 Ex.D-12 Copy of the report dated 3-10-
) 1968 submitted by Deputy Clerk
of Court regarding the state of
papers and records found on the
rack near the seat of the
appellant, who was Assistant
Record Keeper at that time
(13 Ex.D-13 Copy of the report of Deputy
) Clerk of Court recommending no
action against the appellant as
he has already been removed
from service
(14 Ex.D-14 Copy of establishment pay-bill
) of the appellant for the month
of December, 1961
(15 Ex.D-15 Copy of establishment pay-bill
) of the appellant for the month
of September, 1966
(16 Ex.D-16 Acknowledgement signed by the
) appellant dated 9-3-1968 to
receive notice dated 1-3-1968
issued from the office of
District and Sessions Judge,
Bilaspur
(17 Ex.D-17 Copy of the order dated 27-6-
) 1966 issued by the District and
Sessions Judge, Bilaspur
postponing his next annual
increment for a period of six
months without affecting his
future increment on account of
lapses committed by him for not
keeping the records properly in
the Execution Section
(18 Ex.D-18 Copy of order dated 16-8-1966
) withholding the appellant's
next increment for a period of
six months for his failure to
attend to the record room
during the summer vacation from
16-5-1966 to 18-5-1966, 1-6-
1966, 2-6-1966 and 4-6-1966
(19 Ex.D-19 Notice to show cause dated 1-3-
) 1968 issued by the District and
Sessions Judge, Bilaspur to the
appellant for his absence from
duty during office hours
without permission for a long
time on 6-1-1968
(20 Ex.D-20 Order passed by the High Court
) of Madhya Pradesh at Jabalpur
dated 16-12-1968 rejecting the
appellant/plaintiff's appeal
against his order of removal
dated 10-6-1968.
31. On the basis of the documents submitted by the parties, as enlisted above, this Court shall now examine the nature of appointment of the appellant and as to the basis of his removal to examine whether his removal was punitive/stigmatic or it was removal/termination simpliciter.
32. The law as to whether in a given case the services of a probationer or a temporary employee can be branded as punitive or it was termination simpliciter, has been settled by the Hon'ble Supreme Court in a catena of decisions.
In Municipal Committee, Sirsa vs. Munshi Ram, (2005) 2 SCC 382, the Hon'ble Supreme Court, after relying on Krishnadevaraya Education Trust and another vs. L.A. Balakrishna, (2001) 9 SCC 319, H.F. Sangati vs. Registrar General, High Court of Karnataka and others, (2001) 3 SCC 117 and Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another, (2002) 1 SCC 520, has held in paragraphs 13 to 17 of the report thus:
"13. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 this Court again considering a similar case held: (SCC p. 528, para 21) "21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was
(a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld."
14. From the above, it is seen that in the absence of the three facts as mentioned therein, namely,
(a) a full-scale formal enquiry
(b) into allegations involving moral turpitude or misconduct which
(c) culminated in a finding of guilt the termination cannot be held to be bad.
15. This Court in the said case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 further held: (SCC p. 522) "It cannot be held that the enquiry held prior to the order of termination turned the otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists in the present case.
An affidavit cannot be relied on to improve or supplement an order. Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order."
16. From the above, it is clear assuming that there was some sort of misconduct, as noticed in the evidence of the witnesses of the management in the cross-examination, the same could not be used as evidence by the Labour Court or by the appellate court for coming to the conclusion that an order of termination which is otherwise simpliciter in nature is motivated by any consideration other than the decision of the management as to the satisfactory nature of the workman concerned.
17. As noticed above in the instant case, the respondent having been appointed as a probationer and his working having been found not to the satisfaction of the employer, it was open to the management to terminate his services. Assuming that there was an incident of misconduct or incompetency prior to his discharge from service, the same cannot ipso facto be termed as misconduct requiring an inquiry. It may be a ground for the employer's assessment of the workman's efficiency and efficacy to retain him in service, unless, of course, the workman is able to satisfy that the management for reasons other than efficiency wanted to remove him from services by exercising its power of discharge."
33. Yet again in Kendriya Vidyalaya Sangathan vs. Arunkumar Madhavrao Sinddhaye and another, (2007) 1 SCC 283, the Hon'ble Supreme Court, relying on several of its earlier decisions, has held in paragraphs 14, 16 and 17 of the report thus:
"14. In Ravindra Kumar Misra v. U.P. State Handloom Corpn. Ltd., 1987 Supp SCC 739 the appellant had been appointed on 30-10-1976 and had got two promotions while still working in temporary status and by 1982 he had been working as Deputy Production Manager. On 22-11- 1982 he was placed under suspension and the suspension order recited that as a result of preliminary inquiries made by the Central Manager it had come to notice that the appellant was responsible for misconduct, dereliction of duty, mismanagement and showing fictitious production of terrycot cloth. The suspension order was revoked on 1-2-1983 and thereafter on 10-2-1983 a simple order terminating his services was passed reciting that his services were no more required and his services would be deemed to be terminated from the date of receipt of the notice. It was further mentioned therein that he would be entitled to receive one month's salary in lieu of notice period. The termination order was challenged by the appellant on the ground that the same was punitive in nature, which was also demonstrated from the fact that shortly before the order of termination a suspension order had been passed wherein a specific charge of misconduct against him was mentioned. After referring to several earlier decisions this Court repelled the challenge made by the employee by observing as under in para 6 of the Report: (SCC p. 746) "In several authoritative pronouncements of this Court, the concept of `motive' and `foundation' has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operating motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. Since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilized to make the order of termination following such assessment punitive in character."
16. In State of Punjab v. Sukhwinder Singh, (2005) 5 SCC 569 a Bench of three learned Judges to which one of us was a party, after referring to several earlier decisions of this Court including those referred to above, laid down the principle as under in para 19 of the Report: (SCC pp. 579-80) "19. It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact-finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry `for the purpose of imposing punishment' and an order of discharge or termination of service as a result thereof `punitive in character', the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong."
17. As shown above, the nature of enquiry conducted against the respondent was merely a preliminary or fact-finding enquiry and no formal full-scale departmental enquiry had been conducted against the respondent. In fact, the enquiry officer had himself recommended that disciplinary action be taken against the respondent. However, the authorities chose not to hold a disciplinary enquiry against the respondent and did not serve him with any article of charges or take any further steps in that regard. Instead they chose to exercise power under the terms and conditions of the appointment order. The termination order is wholly innocuous and does not cast any stigma upon the respondent nor it visits him with any evil consequences. The High Court seems to have proceeded on a wholly wrong basis and has treated the enquiry which was only a preliminary or fact-finding enquiry into a regular disciplinary enquiry, which was not the case here. In these circumstances, the judgment of the High Court is wholly erroneous in law and has to be set aside."
34. In the light of the principles laid down by the Hon'ble Supreme Court in the above mentioned cases, when the evidence led by the parties, more particularly, the documentary evidence submitted by respondents No.2 and 3 in the shape of letter of appointment, letter of termination, other orders/letters withholding the appellant's increments and asking him to explain about the lapses committed by him on several occasions, are examined, it is found that the appellant was appointed temporarily vide order dated 18-2-1961 (Ex.D-5) until further orders on account of suspension of one Swami Prasad Pastore. It is also mentioned in the letter of appointment that the services of the appellant are liable to be terminated at any time without any notice and without any cause being assigned. Though the appellant was granted periodical increments, he was never confirmed in the service and on the date of his discharge from the service, his status continued to be that of a temporary employee.
The order of appellant's removal from service was issued on 10-6-1968 vide Ex.D-8. The said order is reproduced hereunder in its entirety:
"OFFICE OF THE DISTRICT & SESSIONS JUDGE, BILASPUR.
OFFICE ORDER.
Dated, Bilaspur, the 10th June 1968. No.1 67/II-11-3/68 The services of the following clerks on this office establishment are terminated as per terms of their appointment orders with effect from 13.7.68 A.N. as no longer required:-
1. Shri R.R.Naidu, Officiating A.R.K. Bilaspur,
2. Shri A.P.Mishra, Officiating Copyist, Bilaspur,
3. Shri Ganeshram, Officiating Copyist Umaria,
4. Shri Abdul Gafoor Khan, Officiating Process Writer Shahdol.
Sd/-
B.B.L.Shrivastava District & Sessions Judge, Bilaspur."
35. The order of removal/termination of the appellant is, thus, innocuous without mentioning any allegation or causing stigma on the appellant. Moreover, by this order, it is not the appellant alone, who was removed from service, but there were three other clerical staff whose services were terminated as no longer required. When the order of termination is placed in juxtaposition to the order of appointment, it may be found that the appellant was appointed on account of vacancy created after suspension of one Swami Prasad Pastore and was, therefore, a temporary or stop-gap arrangement, and the order of termination is a termination simpliciter without any stigma.
36. True it is that with respect to the missing of record of Nyay Panchayat Khamaria, some preliminary enquiry was held and the Reporting Officer, the 1st Additional District and Sessions Judge, Bilaspur, vide his memorandum dated 15-6-1968 (Ex.D-7) addressed to the District and Sessions Judge, Bilaspur has prima facie found that the appellant as well as Swami Prasad Pastore are responsible for the loss of record of Nyay Panchayat Khamaria yet the said memorandum or the report of the Reporting Officer does not appear to be a foundation or even a motive for the discharge/termination of the appellant. I have found so because the order of termination (Ex.D-8) was issued on 10-6-1968, whereas the report submitted by the Reporting Officer vide Ex.D-7 was submitted to the District and Sessions Judge, Bilaspur on 15-6-1968. Thus, the finding by the Reporting Officer is subsequent to the order of termination issued against the appellant. Even otherwise, the order of termination is absolutely simple in language and there is no whisper in the order that it is based on some findings recorded in an enquiry or that it is based on misconduct or that it is stigmatic.
37. Learned counsel for the appellant has argued that by virtue of the provisions contained in the Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960 (henceforth `the Rules, 1960'), the appellant has attained status of a quasi- permanent employee and his services could not have been terminated without holding a regular enquiry. It is submitted that after attaining the status of a quasi- permanent Government servant, the appellant is entitled to the same treatment in the matter of removal from service as is available to a permanent Government servant by virtue of Rule 6 of the Rules, 1960.
38. Rule 2(b) of the Rules, 1960 defines "Quasi- Permanent Service" to mean temporary service commenced from such date as may be specified in that behalf in the declaration issued under Rule 3 or from the date from which the Government servant concerned is deemed to be in quasi-permanent service under Rule 3-A and consisting of periods of duty and leave (other than extraordinary leave) after that date. Rules 3 and 3-A of the Rules, 1960 read thus:
"3. A Government servant shall be deemed to be in quasi-permanent service:-
(i) if he has been in temporary service in the same service or post continuously for more than three years;
and
(ii) if the appointing authority being satisfied as to his suitability in respect of age, qualifications, work and character for employment in a quasi-permanent capacity, has issued a declaration to that effect, in accordance with such instructions as the Governor may issue from time to time.
Explanation.- In computing continuous temporary service for the purposes of this rule and period of break in service during a vacation shall be counted as a period of actual service where, upon re-employment immediately after the vacation, the Government servant has been allowed to draw his pay and allowances in respect of such period.
3-A. Government servant in respect of whom a declaration under Clause (ii) of Rule 3 has not been issued but has been in temporary service continuously for five years in a service or post in respect of which such declaration could be made shall be deemed to be in quasi-
permanent service unless for reasons to be recorded in writing the appointing authority otherwise orders."
39. Rule 3-A of the Rules, 1960 has been inserted in the Statute with effect from 22-12-1975, the date on which it was published in the Official Gazette. Therefore, the appellant, having already been discharged from the services with effect from 10-6-1968 (Ex.D-8), will not be governed or that the said Rule 3-A will not be applicable in the case of the appellant. For conferral of status of a quasi-permanent service under Rule 3 of the Rules, 1960, the two pre-conditions are (i) that an employee should be in temporary service for a continuous period of three years and (ii) if the appointing authority being satisfied as to his suitability in respect of age, qualifications, work and character for employment in a quasi-permanent capacity, has issued a declaration to that effect, in accordance with such instructions as the Governor may issue from time to time.
There is nothing on record of the present suit to indicate that the appointing authority, at any point of time, has issued a declaration to the effect that the appellant is conferred the status of a quasi-permanent employee. Thus, it is found that on the date of his termination from service the appellant was not a quasi- permanent employee and the Rules, 1960 are not applicable in his case.
40. In view of what has been discussed and found in the preceding paragraphs of this judgment, this Court is of the opinion that the termination of the appellant vide Ex.D-8 was termination simpliciter and was not punitive. The preliminary enquiry with regard to loss of record of Nyay Panchayat Khamaria was not the foundation for his termination from his service and as such submission of a fact finding report by the 1st Additional District and Sessions Judge, Bilaspur on 15-6-1968, after five days of the issuance of the order of termination to the appellant, cannot be considered as a foundation for his termination. All the three substantial questions of law formulated by this Court for deciding the appeal are answered against the appellant.
41. The present second appeal, thus, fails and is hereby dismissed. There shall be no order as to costs.
42. A decree be drawn-up accordingly.
JUDGE