u&é \%94/0§ w, . ,9. ””93 a BEFE DHYA PRADESH STATE ADMINI$TRATIVE TmBUNAL PRINCIPAL BENCH AT JABALPUR . Original Applicatioh No@ of 199s. BETWEEN Pram Singh Sahu S/O Shivcharan Sahu; aged ahaut 35 years, at present resident of Jail Line, Kanker, District Bastar ($43.). . . . . . . PETITIONER. Min state of Madhya Pradesh through the Secretary, Department of Home (Police), Vallabh Bhavan, Bhopa M.P. Director General of the Jail, M.P. Bhopal M.P.). The Jail Superintendent Central Jail, Raipur (M.P.). 4. The Jail Superintendent, Central Jail, Burg (M.P.). RESPONDENTS . APPLICATIGN imam eacrxow 19 0F»M.?. AmvISTRATIVE Teletmx ACT , 1985, 1. oc As stated i the cauSe tile abave. n t Particulars o$ the ReeponQente : As stated in the cause title ahove. COntdeooeo 2/ OR MA l ( , EN W.P. (S! No.1854 of 2005 PETITIONER Prem Singh Sahu Versus RESPONDENTS State of Madhya Pradsh C.G.) 8c Ors. (now ORDER M/ N POST ON I? AUGUST 2011 h Manindra Mohan S/— Shrivastav%, ‘ Judge S d , , PETITIONER Prem Singh Sahu Versus \ RESPONDENTS State of Mad CG.) 85 Ors. hya Pradsh (now AQQ‘ earanc : Shri Vishnu Koshta, counsel far the petitioner. Shri A.V. Shridhar, Panel Lawyer for the State. ORDER \ (Passed on I‘? .08.2011) June, 1999 (Annexure A- ll) passed by respondent No.2, by which the appeal filed by been dismissed. 5 the petitioner has W adjudication of controversy involved, are that Vide order dated 18. 1 1.1982 (Annexure A—l) period of 3 months in temporary capacity as Watchman ( the conditions that the post on which the petitioner has , the petitioner was appointed for a W) on been appointed is temporary and petitioner’s services can be terminated at any time Without any notice. The petitioner thereafter worked as Watchman. . In relation to an incident which happened on 30.3.1988, wherein it was alleged that the petitioner was found playing cards with the prisoners, a show-cause notice dated 20th April, 1988 (Annexure P—2) was issued, seeking explanation of the petitioner. The notice stated that on an inspection made by the Jailer, the petitioner was found playing cards with the prisoners. The notice required the petitioner to give his explanation in 24 hours as to why his services be not terminated. The petitioner gave his explanation, wherein, it was stated that he asked the prisoners not to play cards and then sat down. In the reply, he stated that he realizes his mistake and seeks apologr and further assures not to repeat the mistake. Thereafter, impugned order was passed on 23rd April, 1988, by which, the services of the petitioners were terminated as no longer required. Aggrieved by the said order, the petitioner preferred an appeal. The Appeal was also dismissed as time barred vide order dated 26.6. 1999 (Annexure A—l 1). s . Learned counsel for .the petitioner contended that the background and the circumstances in which the impugned order of termlnation was passed though apparently 1t appears to be mnocuous, it was founded on allegation of misconduct as stated . in the show-cause notice. Therefore, in his submission, the-action ' was punitive in nature which ought to precede a departmental inquiry by giving charge sheet to the peitioner. Learned counsel t for the petitioner further contende that whether or not the d petitioner h omitted allege mista of playing cards With ad cm d ke the prisoners was required to be proved in a full-fledged deprtmental inquiry afording the petitioner an appropriate a f opportunity of hearing as provided in M.P./C.G. Civil Services (Classificatio, Control 85 Appeal), Rules 1966 . earned counsel n L further submits that the respodent — Jail Superintendent n wrongy assumed that the petitioner had admitted the guilt. He l submitted h the petitioner in his explanatio has explained the tat n cicumstances, in which he had clearly stated that e had asked r h the prisoners not to play cards. Therefore, it could not said be that the petitioner had admitted his guilt. [u 5. On the other hand, learned counsel for the State submitted that the petitioner was appointed only for a fixed period of 3 months on a fixed saiaiy and his order of appointment clearly stated that x his services could be terminated any time as per the order of his appointment. Learned counsel further submitted that the delinquency of the petitioner was merely a motive and not foundation. He submitted ,that no departmental inquiry was held by giving any charge sheet to the petitioner nor any inquiry report was prepared, wherein the petitioner has’beeri held guilty of any misconduct. He further submits that impugned order is simpliciter in nature and it does not say that the petitioner is being dismissed from services on any misconduct found proved against the petitioner. Therefore, the order is not punitive in nature. Learned counsel for the State placed reliance upon the judgment of Supreme Court in the case of Kendriya Vidyalaya Sangathan Vs. Arunkumar Madhavrao Sinddhaye and anotherl. . I have considered the rival submissions made by learned counsel for the parties and perused the records. [U . True it is that a show-cause notice was given to the petitioner on 20th April, 1988. From the records it is also revealed that the petitioner had submitted his explanation which has been flled as Annexure R—l. However, thereafter, no charge sheet was given to the petitioner, nor any departmental inquiry was held nor any inquiry report prepared. A perusal of the impugned order of termination shows that the order is innocuous and it does not cast any stigma on the petitioner. It is an order, simpliciter in nature, terminating the services of the petitioner with immediate effect as no longer required. The order does not show that the petitioner is being dismissed on proof of any misconduct against him: The order of appointment of the petitioner stated that the services of the petitioner could be terminated at any time without any notice. There is no other material placed on record to show that after receipt of the reply of the petitioner, any finding of misconduct was recorded against the petitioner and the authority decided to dismiss the services by holding that the petitioner is guilty of misconduct. fo 1 (2007) l SCC 283 ywr .. 8. In the case of Kendriya Vidyalaya Sangathan (supra), the petitioner therein, who was a temporary employee, was terminated in accordance with the conditions of appointment. In that case, the order of termination was assailed on the ground that it was founded on the allegation of misconduct, which ought to precede an inquiry, because an inquiry was conducted, in which, finding was recorded and it was on the basis of the said . inquiry that the services were terminated and that it was not a ce of simple order of termination, but was passed by way of punishment. he facts of that case, as revealed in para—6 of the T judgment of the Supreme Court, shows that a complaint of beating students was inquired and inquiry was conducted, in which, statements of students were recorded and explanation was sought from the employee and finally, the inquiry officer gave an opinion that e employee indulged in practice of meting out th corporl punishment to students and recommended disciplinary action. However, instead of initiating any departmental inquiry, an order of termination simpliciter was passed, informing that his services were no longer required. a. 9. In the backdrop of aforesaid facts and circumstances of that case, which are quite similar to the facts and circumstances of the present case, the Supreme Court examined whether the " termination order was founded upon misconduct or the delinquency was only a motive behind such termination. The Supreme Court referred to its earlier decision in various cases. as a The Supreme Court referred to its decision in the case of State ofMaharashtra vs. Veerappa R. Sabpji [(1979) 4 SC 466], wherein, it was observed as under (SCC p.474, para 10) y “Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find Whether it casts any stigma on the government servant. In such a case there is no presumption that the order is arbitrary or mala tide unless a very strong‘case is made out and proved by the government servant who challenges such an order. ” The Supreme Court also referred to its earlier decision in the case of State of U.P. Vs. Kaushal Kishore Shukla [(1991) 1 SCC 691}, wherein, it was observed (SCC pp. 699 85 705, paras 8 8L 13) "[T]he respondent being a temporary government servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without 7 \x casting any stigma on him. The termination order does not indict the respondent for any misconduct The inquiry which was held against the respondent was preliminary in nature to ascertain the 5 respondents suitability and continuance in serVice There was no element of punitive proceedings as no charges had been framed no inquiry officer was appomted no findings were recorded, instead a preliminary inquiry was held and on the report of thei O \v preliminary inquiry the competent authority terminated the respondent's services by an innocuous order in accordance with the terms r‘u ‘ i5 and conditions of his service. Mere fact that prior to the issue of order of termination, an inquiry against the respondent in regard to the allegations of unauthorised audit of Boys' Fund was held, does not change the nature of the order of termination into that of punishment as after the preliminary inquiry he compeent authorit took no steps ’to‘ puish ’the resndent, instead it exercised its power to terminate the respondent's services in accordance with the contract of service and the Rules. The allegations made against the repondent contained in the ounter—affidavit by wy of a defence filed n behalf of the appellants also do not change the nature and character of the order of rmination.” It also referred to its decision in the case of Ravindra Kumar Mishra Vs. U.P. Stat Handloom Corpn. Ltd., [1987 Supp. SCC 739], herein it as observed (SCC p.746) w w “In several authoritative pronouncements of this Court, the concept of ‘motive’ and ‘foundation’ has been brought in for finding out the effect of t 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 w..- t t y n po * * i: s c a o te e he 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 utilised to make the order of termination following such assessment punitive in character.” The law laid down in the case of Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences, [(2002) 1 SCC 520], was also taken note of, wherein, it was held (SCC pp. 8 & 529-30, 52 paras 21 86 29) “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 terminatidn has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the threeifactors} is missing, the termination has been upheld. it i: ’ir Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by Q reason of misconduct or ineptitude, Whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order Which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.” It was fmally held as under: “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.” Praveen m3. 10. Applying the principles reiterated by the Supreme Court as above and applied in the case of Kendriya Vidyalaya Sangathan (supra) to the facts and circumstances of the present case, it leads to inevitable conclusion in the present case that the allegations Which were contained in the show—cause notice dated 20th April, 1988 (Annexure A—2), only operated as motive behind termination of the petitioner and his termination was not founded on misconduct, but, his services were terminated by innocuous order of termination, stating that it is not required. Such termination cannot be said to be punitive. The order of termination clearly reads that the petitioner’s services were terminated as no longer required. The termination is in accordance with the terms of the appointment of the petitioner. The petitioner had no right to hold the post as there is no material to show that the petitioner had acquired permanency or quas1—permanency 1n serv1ce. 11. In the result, I do no find any merit in the petition. The same deserves to be and is accordingly dismissed. 12. No order as to costs. ' S.d/- “F Judge 2 K Manindra Mohan Shrivastavac. ’ID