IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 284 of 2004 (S/S) Narayan Singh Mehta S/o Sri Kushal Singh Mehta R/o Village and Post Office Chandani Banbassa District – Champawat … Petitioner Versus 1. Union of India through Defence Secretary New Delhi 2. Chief of Army Staff, New Delhi 3. Lt. General, G.O.C. Inc. Head Quarter Central Condt. Lucknow Cant (U.P.) 4. Adm. Condt. Station Head Quarter Banbassa, District Champawat 5. Lt. Col. P.P. Sharma Adm. Condt. Station Head Quarter Banbassa District Champawat … Respondents Sri B.S. Khanka, learned counsel for the petitioner Sri Vikash Pandey, learned standing (central) counsel for the respondents Hon’ble B.C. Kandpal, J. By way of this writ petition a relief has been sought in the nature of certiorari quashing the impugned order dated 06.06.2003 passed by respondent No. 5 (annexure No. SA-1 to the amendment application) terminating the services of the petitioner. As per the averments made in the writ petition, the petitioner was appointed as Mess Waiter on 09.08.1999 and his salary was Rs. 1,200/- per month. The appointment letter was issued by respondent No. 4. Keeping in view the efficient and satisfactory work performed by the petitioner, he was promoted was Mess-in-charge, Station Officers Mess w.e.f. 01.02.2000 on a pay scale of Rs. 1,500/- per month with an increment of Rs. 50 per annum. The petitioner has averred in the writ petition that he requested to the respondent No. 4 that as to his work found satisfactory hence his 2 service should be regularized, but the respondent No. 4 in stead of regularizing the service of the petitioner issued a show cause notice to him vide order dated 02.05.2003 levelling certain charges against the petitioner. The petitioner has further averred that vide order dated 06.06.2003, the respondents has terminated his service. Hence, this writ petition. Heard learned counsel for the parties and perused the record. The show cause notice dated 02.05.2003 runs as follows:- SHOW CAUSE NOTICE 1. Reference our letter No. SHQ/SWF/Gen dated 27 Jan 2000 2. It has been observed by the undersigned that your services are no more required due to the following reasons:- (a) You have not taken property as per ledger charge and properly accounted for as per letter under ref. (b) You have not taken liquor/soft drinks messing items and cig/matches and properly accounted for. (c) You are failed to put up handing/taking over its requited vide para 4 of letter under reference. (d) You are almost absenting your self from duty of Adhoc Mess premises. 3. Besides the above there are numerous complaints against you regarding extortion of money by fraud from following individuals both in the mil camp as well as persons outside the camp:- (a) Wet Canteen (b) Stn Veg Shop (c) Mr. Chauthmal Agarwal (d) Sh. C.M. Brithwal (e) Bhatia Cycle Shop (f) Poultry Farm (g) Thakur Sweet House (h) Gurmeet Singh 3 (i) Sh. Nandan Singh of Adhoc Stn Offrs Mess 4. You are hereby directed to forward reply by 01 Jan 2003 as to why your services shall not liable to be terminated. Sd/ (P.P. Sharma) Lt. Col. Adm Condt.” It appears from the perusal of the show cause notice that the petitioner had to submit the reply by 1 st of June 2003 and in the show cause notice, the petitioner was also required to show cause as to why his services shall not be liable to be terminated. It would further be necessary to take a look at the termination order passed by respondent No. 5 which reads as follows:- “ TERMINATION OF SERVICE 1. Reference our letter Nos:- (a) SHQ/SWF/Gen dt. 27 Jan 2000 (b) SHQ/SWF/Gen dt. 02 May 2003 2. With immediate effect your service are terminated for committed theft of Stn HQ stores. 3. On specific info on 05 Jan 2003. One VCR and one Tennis Raquet and ad-hoc Stn Mess was recovered by No. 7774660A Hv/MP Badan Singh of CMP det, Banbassa from your house at Village Chandani, Banbasa to which you confessed immediately. 4. Besides the above there re numerous complaints against you regarding getting credit of cash for Stn. Mess by fraudulent means from following individuals both in the mil camp as well as persons outside the camp:- (a) Shri C.M. Agarwal (b) Shri Mali Ram Agarwal (c) Sh. MS Brithwal (d) Stn Veg Shop (e) Bhatia Cycle Shop 4 (f) Poultry Farm (g) Thakur Sweet House (h) Shri Gurumit Singh (i) Shri Nandan Singh of Stn. Offrs Mess. 5. Besides terminating your services for your above misdemeanant, I also advise you not to venture in the mil camp premises, in future. If caught, you are likely to be confined by the CMP and handed over to the Police Stn Banbasa. Sd/ (P.P. Sharma) Lt. Col. Adm Condt.” Perusal of the termination order dated 06.06.2003 clearly shows that this order contains a stigma and is certainly bad for individual concern (petitioner) who would suffer a substantial loss of reputation which may affect his future prospectus. The reasons given in the termination order come within the ambit of ‘stigma’. Para 12 of the counter affidavit filed by the respondent No. 5 reveals that:- “That in reply to the contents of para No. 10 of the Writ Petition it is submitted that the show cause notice was given to the Petitioner on written complaints from the various shopkeepers and civilians. Photocopies of the letters by the individuals whom he has defrauded on the name of Station Officer’s Mess are attached as ANNEXURE CA-6 TO CA-12 to Counter Affidavit. An inquiry was undertaken by his Administrative Commandant and the allegations were found to be true. Besides this, he had even committed theft of mess/government stores on his charge. These were recovered from his house by Havildar/CMP Badan Singh to which he had no answer. Thereafter Petitioner was given show cause notice on 2nd May 2003. The Petitioner instead of giving answer to show cause 5 notice approached to the Higher Headquarters and tried his level best to mislead to Higher Headquarters i.e Headquarters Uttaranchal Sub Area. Headquarters Uttaranchal Sub Area directed this Headquarters that this matter be disposed off by Station Headquarters, Banbasa themselves. Thereafter, the Petitioner forwarded a complaint to Station Commander Banbasa, copy whereof is annexed herewith as ANNEXURE CA-13 to this Counter Affidavit. Finally the Petitioner approached to labour inspector (Saram Parvartan Adhikari) at Tanakpur and Labour inspector issued notice to Administrative Commandant to find out the truth, copy whereof is annexed as ANNEXURE CA-14 to this Counter Affidavit. From the above three complaints, it may please be noticed, that the cause of termination as also willfully trying to defame the respondent No. 5 are different in each complaint. Thus it is clear from the pleading averred in counter affidavit that an enquiry was under taken by the Administrative Commandant and the allegations were found to be true but there is no material available on the record that in fact any proper enquiry according to the law was contemplated before passing the termination order which according to the allegations leveled therein are the foundation and not mere motive. The Hon’ble Supreme Court has explained the meaning of “stigma” in a case reported in (1987) 1 SCC page 146 Kamal Kishor Laxman Vs. Pan American World Airways Inc. as follows:- “8. Accordingly to Webster’s New World Dictionary, it (stigma) is something that detracts from the character or reputation of a person, a mark, sign etc. indicating that something is not considered normal or standard. The Legal Thesaurus by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Webster’s Third New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary ‘stigma’ is a matter for moral reproach. 6 Similar observations were made in Allahabad Bank Officers’ Assn. Vs. Allahabad Bank (1996) 3 SCC page 504. In view of the above meaning as has been explained by the Hon’ble Apex Court, the impugned order certainly amounts to stigma against the petitioner. The Hon’ble Apex Court in a Case Bishan Lal Gupta Vs State of Haryana (1978) 1 SCC page 202 has held that:- “If the order contained a stigma, the termination would be bad for “the individual concerned must suffer a substantial loss of reputation, which may affect as future prospects.” In the instant case, I come to the conclusion that the findings regarding misconduct are arrived at without conducting a regular departmental enquiry, hence the termination order should certainly vitiated. The language of the impugned order clearly points out that the instances referred to therein were not mere allegations against the petitioner. Had there been mere allegations, it would have been a case of motive but the order terminating the services of the petitioner points out definite conclusion of misconduct which give rise to an inescapable conclusion that there findings are part of foundation of impugned termination order. It is, therefore, not a case of mere motive and the contents of the allegations referred to in the impugned termination order are clearly in the nature of stigma as the reasons given therein would be an impediment for any future employment elsewhere. Under the aforesaid circumstances, the principles of natural justice do require that the petitioner should be given an opportunity to explain the grounds on which the respondents No. 5 proposes to pass an order of termination and then to consider the explanation submitted by the petitioner. The respondent No. 5 is competent to pass an appropriate order according to the rules but since this part of the procedure had not been opted, the order of termination is vitiated by manifest error of law. 7 In view of the aforesaid discussion, the order passed by the respondent No. 5 terminating the services of the petitioner is liable to be set aside. Accordingly the writ petition is allowed. The impugned order dated 06.06.2003 terminating the services of the petitioner is hereby set aside. However, it would be open to the respondent, if so advised, to give an opportunity to show cause to the petitioner, consider his objections and pass an appropriate order in accordance with law within a period of three months from the date of receipt of the order. (B.C. Kandpal, J.) 28.06.2005 ASWAL 8