Civil Appeal No 1309 of 1986
From the Judgment and Order dated 881985 of the Punjab and Haryana High Court in Regular Second Appeal No 307 of 1985
AB Rohtagi Ranbir Singh Yadav and HM Singh for the Appellant
75 AG Prasad and Mahabir Singh for the Respondents
The Judgment of the Court was delivered by RAY J
This appeal on special leave is against the judgment and order passed by the High Court of Punjab  Haryana in Regular Second Appeal No 307 of 1985 whereby the High Court upheld the order of termination of services of services of the appellant made on November 17 1980 passed by the respondent No 2 the Directer of Food and Supplies and Deputy Secretary to Government of Haryana Chandigarh
The salient facts that gave rise to the instant appeal are as follows The appellant we appointed as Sub Inspector Food and Supplies in the Department of Food and Supplies by the Respondent No2 by order dated April 13 1975 on and hoc basis against the ex servicemen quota
As per the service rules the terms and conditions of the said appointment are as hereunder i The post is purely temporary
Your appointment is purely on ad hoc basis and shall not exceed six months
Your services are liable to be terminated at any time during this period without any notice and without assigning any reason
Your services are also liable to be terminated at any time without notice on arrival of regular candidates from the Haryana Subordinate Services Selection Board
 The appellant had been continuing in the said post of Sub Inspector without any break till November 17 1980 ie the date of termination of his services
The appellant however was served with an order of suspension made by the Respondent No 2 on April 15 1980 in view of the criminal proceedings pending against the appellant us 420 of the Indian Penal Code during the pendency of which the order of termination was made on November 17 1980
The said criminal proceeding being Criminal Case No 1413 of 1981 was decided on October 21 1981 wherein he has been acquitted of the said charge
The Additional Chief Judicial Magistrate Narnual had found that  
Babu Ram accused was not present at the spot and he had no role to play in the distribution of the cement
The Appellant could not point out even a single factor from the file by which the participation of this accused can be said to 76 have been proved by the prosecution
As such accused Babu Ram cannot be held guilty of the offence charged and he is acquitted of the same
 The plaintiff appellant immediately on receiving the order of termination after giving the requisite notice brought an action being Civil Suit No453 of 1981 in the court of Senior Sub Judge Narnual praying for a declaration to the effect that the order of suspension dated 1541980 and the order of termination dated 17111980 passed by the respondent No2 were illegal wrong arbitrary and without jurisdiction and the appellant is entitled to reinstatement with effect from the date of his suspension and so further entitled to be regularised and to all the benefits of the service
It had been stated in the pleadings of the appellant that a notification dated 1st January 1980 issued by the Chief Secretary to the Government of Haryana addressed to all the Head of the Departments vide memo No GSRConst article 30980 stating that such ad hoc employees who hold the class III posts for a minimum period of two years on 31121979 are to be regularised if they fulfill the following conditions a Only such ad hoc employees as have completed a minimum of two years service on 31121979 should be made regular
However break in service rendered on ad hoc basis upto a period of one month may be condoned but break accruing because the concerned employee had left service of his own volition or where the ad hoc appointment was against a postvacancy for which no regular recruitment was requiredintended to be made ie leave arrangements or filling up of other short time vacancies may not be condoned
b Only such ad hoc employees as have been recruited through the Employment Exchange should be made regular
c The work and conduct of the ad hoc employees proposed to be regularised should be of an overall good category
The plaintiff appellant pleaded that he having put in the minimum period of two years of service on 31121979 became entitled to have his service regularised in view of the said Notification
He further pleaded that the alleged order of termination was in fact an order of dismissal and so it amounts to punishment and the same being penal in nature is null and void because it contravened the provisions of Constitution of India
The Senior Sub Judge Narnaul after hearing the 77 parties held that as the petitioner appellant was acquitted of the said offence the authorities should have revoked the suspension order and have paid the pay for the period for which the appellant remained under suspension
The Court further held that the appellant will be entitled to all the benefits of his service
Against this judgement and decree an appeal was filed being CA No 129 of 1983 in the Court of Addl
District Judge Narnaul by the State
The Addl
District Judge by his judgement dated 18101984 affirmed the judgement and decree of the learned Sub Judge holding that no enquiry was conducted before termination of the service of the appellant
The Addl
District Judge also held that  the plaintiff had completed two years of service and according to executive instructions his services were bound to be regularised
Reasonable opportunity to defend was not given to the plaintiff before termination of his services
Order of termination of services was merely a camouflage for an order of dismissal for misconduct
He was still under suspension when he was terminated
All these facts lead only to one conclusion that the impugned order of termination of the services of the plaintiff is bad in law   Against this judgement and order RSA No 307 of 1985 was filed by the said respondents in the High Court of Punjab and Haryana at Chandigarh
The High Curt allowed the appeal on setting aside the judgement and decree of the courts below holding that the appellant was not entitled to be regularised automatically unless he fulfilled all the conditions given in the Notification
It was further held that when the case of the appellant came up for regularisation the Department found that the appellant s work and conduct was not of the required standard so as to justify his regularisation and consequently his services were not regularised
It was further held that since the appellant was ad hoc employee therefore the Department instead of waiting for the result of the criminal proceedings thought it fit under the circumstances to dispense with the services of the appellant in accordance with the terms of his appointment
This judgement is under challenge in this appeal
The pivotal question that poses itself for consideration before this Court is firstly whether during the period of suspension in view of the criminal proceeding which ultimately ended with the acquittal an order of termi 78 nation can be made against the appellant by the respondent No2 terminating his ad hoc services without reinstating him as he was acquitted from the charge us 420 IPC and secondly whether the impugned order of termination from his service can be made straight away without reinstating him in the service after he earned acquittal in the criminal case and thereafter without initiating any proceeding for termination of his service as the impugned order of termination was of penal nature having civil consequences
It has also to be considered in this connection that the respondent No2 has also not considered the case of the appellant for regularisation of his services even though he had completed two years of service as on 31121979 fulfilling all the requisite terms and conditions mentioned in the said Notification
The order of suspension made by the respondent No2 is admittedly on the sole ground that criminal proceeding was pending against the appellant
The order of termination had been made illegally during the pendency of the order of suspension and also during the pendency of the criminal proceeding which ultimately ended with the acquittal of the appellant
It is the settled position in law that the appellant who was suspended on the ground of pendency of criminal proceeding against him on being acquitted of the criminal charge is entitled to be reinstated in service
His acquittal from the criminal charge does not debar the disciplinary authorities to initiate disciplinary proceedings and after giving an opportunity of hearing to the appellant pass an order of termination on the basis of the terms and conditions of the order of his appointment
Furthermore as the appellant whose name was sent through Employment Exchange and who was appointed and has completed two years service on 31121979 is entitled to be considered for regularisation in the post Sub Inspector Food and Supplies
The High Court had observed that  
In these circumstances when his case came up for regularisation the Department found that the plaintiff s work and conduct was not of the required standard so as to justify his regularisation and consequently his services were not regularised
 This finding of the High Court is totally baseless in as much as the counsel for the said respondent could not produce any order or documentary evidence to show that the respondents considered the case of the appellant for the purpose of regularisation in accordance with the Notification dated 1st January 1980
As such the finding of the High Court is wholly bad and illegal
The other finding of the High Court that the acquittal of the appellant by the criminal court was of no consequence as his services were terminated before the order of acquittal was made because the appellant was no more in service is also 79 against the well settled legal position
It has also to be borne in mind that under the Notification dated 1st January 1980 issued by the Government the appellant having fulfilled the condition of two years of service is entitled to be considered by the Government for regularisation of his service in accordance with the said executive instructions issued by the Government
As we have said herein before that there is nothing on record to show that the Government has ever considered the case of the appellant for regularisation of his service in the light of the instructions contained in the said Notification dated 1st January 1980 the impugned order of termination of service made by the Government is illegal and arbitrary and so it is liable to be quashed and set aside
Moreover from the sequences of facts of his case the inference is irresistible that the impugned order of termination of the service of the appellant is of penal nature having civil consequence
It is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the Court that though the order is innocuous on the face of it still then the Court if necessary for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment the order will be set aside
Reference may be made in this connection to the decision of this Court in Smt
Rajinder Kaur vs State of Punjab and Another in which one of us is a party
It has been held that The impugned order of discharge though stated to be made in accordance with the provisions of Rule 1221 of the Punjab Police Rules 1934 was really made on the basis of the misconduct as found on enquiry into the allegation behind her back
Though couched in innocuous terms the order was merely a camouflage for an order of dismissal from service on the ground of misconduct
This order had been made without serving the appellant any charge sheet without asking for any explanation from her and without giving any opportunity to show cause against the purported order f dismissal from service and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross examine the witness examined
The order was thus made in total contravention of the provisions of Article 3112 and was therefore liable to be quashed and set aside
 This case relied on the observations made by this Court in the case of Anoop Jaiswal vs Government of India  80 wherein it has been observed that 
Where the form of order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged 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 a determination of employment is in reality a cloak for an order of punishment the court would not be debarred merely because of the form of the order in giving effect to the rights conferred by law upon the employee
Similar observation has been made by this Court in the case of Hardeep Singh vs State of Haryana and Ors
 It has been held in this case as under In the instant case it is clear and evident from the averments made in paragraph 3 sub para i to iii and paragraph v of the counter affidavit that the impugned order of removaldismissal from service was in substance and in effect an order made by way of punishment after considering the service conduct of petitioner
There is no doubt the impugned order casts a stigma on the service career of the petitioner and the order being made by way of punishment the petitioner is entitled to the protection afforded by the provisions of Article 3112 of the Constitution as well as by the provisions of Rule 1624 Ixb of the Punjab Police Rules 1984  In the premises aforesaid we are constrained to hold that the judgement rendered by the High Court is wholly illegal and unwarranted and as such we quash and set aside the same and affirm the judgement of the courts below
We direct that the appellant be reinstated in the service immediately and be paid all his emoluments ie pay and allowances from the date of the order of his suspension ie 1541980 till the date of reinstatement into service minus the suspension allowance that had been received by the appellant during the period of his suspension if any
The respondents are at liberty to consider the case of the appellant for regularisation in the light of the norms laid down in the executive instructions issued on 1st January1980 by Notification No GSRConstArt
30980
The appeal is allowed
There will be no order as to costs in the facts the circumstances of the case
YLal Appeal allowed


Summary:
The suit land was taken under Government management as it was lying fallow for two consecutive years
The Mamlatdar appointed as a Manager thereof under Section 45 of the Bombay Tenancy and Agricultural Lands Act 1948 after assuming management leased out the said land to the appellant for a period of 10 years by an agreement of lease dated 7121951
The period of lease expired on 6121961
However the management of the land was terminated by Government by the Assistant Collector s order dated 27763 and possession thereof was ordered to be restored to the respondent landlord
The appellant filed a Civil Suit against the respondent contending that he was paying rent to the Mamlatdar during the period 7121961 to 2771963 and thus continued to be a tenant in respect of the land
The Civil Judge made a reference to the Mamlatdar who held that the appellant continued to be tenant
The respondent s appeal to the Assistant Collector having failed a revision application was moved before the Revenue Tribunal wherein the question arose whether the appellant s tenancy was subsisting on 2771963 the date of termination of the management
The Tribunal held that the appellant could not continue as tenant on the termination of the management since the land was taken under the Government management under Section 881 of the Act
82 The High Court in the Application under Article 227 of the Constitution of India having upheld this finding of the Tribunal the appellant filed Special Leave petition to this Court
The appellant contended that having continued payment of rent to the Mamlatdar even after expiry of the lease till the termination of management he continued to be a tenant which the landlord could not avoid on resumption of the land while the respondent submitted that the appellant could by no means continue to be a tenant after the expiry of lease and that no fresh lease was granted to him after the management was terminated
Dismissing the appeal this Court HELD 1
On the finding of the courts below that after the expiry of the lease no fresh lease was granted by the Manager the appellant s claim to have continued as the tenant even after expiry of the lease on 6121961 and till 2771963 the date of termination by paying rent for the period to the Mamlatdar would be of no avail in the absence of fresh lease after expiry of the 10 years lease on 6121961
This would be so because the Act does not envisage the Government as a landholder but only as Manager
While delivering back the land into the possession of the landholder it could not be burdened with any tenancy created or resulting while under management
Besides there could be no privacy between the landlord and the erstwhile tenant under Government in the matter of tenancy
Between the appellant and the respondent landlord therefore no question of the former continuing as tenant of the latter could arise after the land was reverted to the landholder
86B D 2
The appellant could not have been a deemed tenant either under Section 4 or 4B of the Act inasmuch as Section 88 of the Act grants exemption inter alia to lands held on lease from the Government86E