[11] In view of the position as noted above, the writ petition is allowed in
the same terms as in CWP No.3392 of 2017 titled as Babu Lal vs State of Haryana
and Others and CWP No.3441 of 2017 titled as Parveen Malik vs State of Haryana
and others. The respondents shall work out the amount chargeable in accordance
with Rule 5.23 Part I, Vol. I of the Punjab Civil Services Rules (as applicable to
the State of Haryana) and make adjustment of the amount already recovered
against the total amount found due and payable by the petitioner.
No order as to costs.
In
this regard, he relied on the decision of Supreme Court in cases of Babu Lal
Vs. State of Haryana, 1991 (2) SCC 335 and Anoop Jaiswal Vs. Government
of India, 1984 AIR (SC) 636 . In these case, it is ruled that where the form of
the order is merely a camouflage for an order of dismissal for misconduct, it
is always open to the Court to go behind the form and ascertain the true
character of the order. If the Court holds that the order though in the form is
merely determination of employment is in reality a cloak for an order of
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Judgment 7 228wp5740.06.odt
punishment, the Court would not be debarred merely because of the form of
the order.
5.4 It has been submitted that before issuing the said impugned
reversion order, no prior notice on reversion to downgrade/reduce
the applicant by three grades from the present post of ITI was
issued to him so as to give him reasonable opportunity of being
heard to defend/represent against such inaction of reversion.
28
OA Nos.2103, 2104, 2112, 2113, 2114, 2115, 2116, 2117, 2145 of 2020; 2067,
2069, 2078, 2070, 2088, 729 of 2021; 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98,
99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 153, 163, 197, 198, 199 of 2022
5.5 It is submitted that the impugned orders ibid being
erroneous, illegal, not in accordance with the law, punitive in
nature, violative of Article 14, 16, 311(2) of the Constitution of
India, against the principles of service jurisprudence as also against
the guidelines given by the Hon'ble Supreme Court in its judgment
dated 11.02.1986 in the case of Narender Chadha Vs. Union of
India, 1986 AIR (SC) 638 which has been followed in the later
judgment dated 11.12.1987 in the case of Karan Singh Vs. Union
of India as reported in 1988 (1) JT 1 and in subsequent judgment
dated 16.01.1991 in the case of Babu Lal Vs. State of Haryana as
reported in 1991 (AIR) SC 1310 against issue of such penal
orders.
At this point, he also adverted to a decision, namely, Babu Lal v. State of Haryana and Ors. . It was a case where an employee continuing on ad hoc basis without break for more than two years stood removed. He had been served with an order of termination, alleging that there was a criminal case to which he was a party although it had ended in acquittal at a later stage. The order was set aside, citing the principle that if a simple termination is found to be a camouflage for punitive action, the order requires to be set aside.
In the case of Babu Lal v. State of Haryana and Ors. (1991) 1 UJ (SC) 528, a similar question falls for consideration before the Apex Court and their Lordships held:
The petitioner has also placed a judgment reported at (1991) 2
SCC 335 (Babu Lal v. State of Haryana). Paragraph 7 of the report
has been relied upon. However, it does not appear that anything in
such report is of any relevance in the present context. The
petitioner in that case was appointed by a public body on a
temporary basis. A criminal charge, unconnected with the
employee's usual line of duty, was brought against the employee
and, as a consequence, his temporary engagement was suspended.
The criminal court acquitted the accused on the ground that the
accused was not present at the place of occurrence. It was further
observed that the persecution "could not point out even a single
factor by which the participation of this accused can be said to have
been proved ..." Notwithstanding such order, the engagement of the
concerned temporary employee was discontinued which resulted in
the filing of a suit and appeals being carried from the orders passed
in the suit. Clearly, on facts, the present petition or the position of
the present petitioner cannot be equated with that of the petitioner
in the reported case.