B EFORE THE M . P . STATE ADI‘HNI S'I'RATIVE TRJI BUNE£L BHOPAL B EN CH , BHOPAL é f‘ f ( x case No.0.A.B.%Qlof 19:22 BEI‘WEEN Mo‘hd. (Israil, aged about 35 'Years,‘ s/o Mahd. Ismail H Driver, In the office or; Child belopment Officer, Nawagarh, Dist. Durg and R/o Haji Safa‘t Takia Para, Shakir Manzil,‘ Burg. h .QOQAPPHVCM The State o Madhyaresh, hroug th Principal crtary, Women < Child DevelOpmerjz Departmenin llabh Bhawan Mantraaya, Bhopal. The mmissioner, Women & Child Developent Direora, Paryavae Bhawan, M.P. , Lhopal Dist. Women 84 Child Delopmet Offr, Dis. Durg, Drg, The Collector, Drict — Dnr‘g . ESPONDEE'E'S . . R O O 0 g ‘ PErITIN UNDER SECTIN 13E THE grmHSTRATIVE TMBUNAIE ACT, 1985 DETAILS OF THEA APPLICATIN O PARI ULARS OE THE APPLI CANT Ai h u T C : sn te case title above. PARTICULARS OF EE RSPONDENTS : T E c tit a l As in the ause le bove. ve AND f Pad th e See 8 i Va , l Co m ctte B ven ice t u ist $1.!NGLE BENCH : HON’BLE MR. S£Ti$H K A$N§HOTRL J. Mr. V.V.S‘Moorthy, Depu'iy Advocate Genera? with Mrs. Anju Ahuja, Depuiy Government Advocaie m the Statefrewandents. QRBER (Passed on ’22” Day of December, 2006) This petition §3 by way of tramfer from the State AdministraiWe T:‘§bunai, wherein the 0?éginal Appiication M1822 af 1999 wag filed in Oc€obeL $999 seeking a direc‘iion to quash the impugned iermirxaicm arder daied 22-Q-19§9 (Annexwe A4). The afigiaaé appiicaiian was tramferred i0 this Court am diasdutian of ‘the Siate Adminigtra‘twe Tribuna! and. re-numbered as Wri’: Femion \is.4693 0f 2GQ4. 2. The indisputabie é‘acis of ‘thiss ca$e are that ihe §etii§oner wag appoimed as Driver in accardance with law on the beeis a? the v ' {3f recommendaimn made by ihe Empowe’e Committee m iis eieventE": WEE? PETETSGN §\§D.4693 QF Eemi Pe‘titienea' : Mohd. §sra§i vefsus Respandents : ‘fha $tate 0f Madhya P¥a§esh (new Chhattisgarh) and others Pmwni : Mrs. Fcuzia Mirza, caunse¥ §o¥ the getitic-net meeting om probation far a period of two years an ihe pay-3caie of Rs.3G5Q—£_5§O by order dated 3-9-1998. The awoimment m’der dated 38-19% was €hez’eaftef confirmed by the Sia’ze Governmeni by orde? dated 424999 {Annexure A434). Awarding t0 ieamed caunsei awearmg far the peiitionei, the pet§€icmer was waking en prabatkm with mi! sa€§sfaction Hswever, by cfdar dated 22-94 9% (Annexwe A‘ A“ }, ihe petEtmaar was iermirmed fmm the service en the gmund %hai the appeintmem cf the pe‘iitéener was not in accordance with haw. Tee §mpugned efder, which apparemly etiaches s’aigma m ihe ef§ec: ihet the epeeintmeet omer was obiamed megaiiy, is canker; i0 the renews as ihe appeintmem was made emctw on $§1e besie cf ihe recommendeiion made by the Empewemd Cemmit‘tee in ifs eievenih meeting. Leemed ceunsei aepeering for the peiitiorzer submits ‘shat the'impugned order is bad and the same deserves to be dismiesedu The impugned ardef, which visits wiih civii coneequences, was not passed ef‘ier afferding an opportunity at hearing te the petitioner, thereby vioiating priesteies of nature! justice and fair piey m aetien, 3. Mr. ti.‘ii’.S.Moorthy, teamed Deeuty Advocate Generai with Mrs. Anju Ahuja, teamed Deputy Geyerriment Aevocate, appearing fer the Statekeepondents, per canee, submits that the impugned termtnation order is simplieiter as he tonger required and the services ot‘ the petitioner eeuid tee terminatee’ during the probatien pefied. LL t have heard teamed counsei appearing for the parties arid perused the petition arid return and the recerds appended thereto. it is evident that the impugned termination order attaches stigma as it is not ah order oi termination simpiioiter, but with the eiiegatioh that the apooin‘meai arder was not is$ued in accoi’dance with iaw. It is very dear as if the orde¥ has been abta'med iilega!!y. 5. ii §s we” settled princime 9f law that no ordef, which Vis§ts wiih civii canseqaenws impasing punishmeni attaching s'kigma, car; be pasged withaut affoi'diag su§f§c§ent opgortunky af hearmg to the peti’aioner‘ 6. 1n ihis case, it is not diSputed that m opmrtuniw was affm'ded to ’iha petit§oner befme the impugne§ order of temmatwn wa$ gassed. The pe’étioner had aiready worked for more than we year {m the basis G‘a‘ the appomtment owier dated 3-§-1998, which appears; %o be passed in ascordance wi€th iaw on ’{he basis of the s’ecommenciation made by the Empowered Commitéee in its e§eventh meeting. 7‘ ihe Supreme Court, in 'the case of Anoop Jaiowa! vo. Govemmom of indie and anofhef, observed in para '12 as wider :~ .i 12. it is, therefore, now weii set’zied i‘nai: where ihe form of the order is mereiy a camoufiage for an order oi dismissai for misconduct it ie always open to the court before which the order is challenged to go behind the r'orm and ascertain the true character of the order. if the court hoicis that the order though in the form is mereiy a determination of empioyment is in reaiity a cioaktor an order of punishment. the court wouid not be debarred, mereiy because of the form of the order, in giving effect to the rights conferred by iaw upon the empioyee’ , The supreme Court, in the case of $hanéra Praiiash sham vs. $tai‘e of 6F. and oihers2, observed in para 12 as Lmder :— “12. Ncw, it is wei} sewed that €he iempomi'y govemment sewaa€s Gr pmbaticnas are as much enti‘tied to the protectian 9f Article 3M (2) 9%: tha Comstimtion as the permanent empieyees deserte- ‘the fac’i that temporary gevemment sewams have no right to hoid the past and iheir services are iie‘me t0 be terminated at any time by giving them a month’s notice Witheut assigning any reason eiiher ii'i 'ierms of ihe caniraci of sen/ice 0r uncief the reievan‘i stetutow rules feguiaiing the terms ane condi‘iions ef such Service The ceurts can. therefere, iif‘i the veii of an innecueusiy-worded omier ‘ie iook at the real face of the cider and is find out whether it is an irmocei'at a5: wctded, (See: Parehotam Lei Dhingre vi Unieh of indie.) it was. exeiained in this decision that inefficiency, negligence at miscenduct may have been the teeters for inducing the Government to terminate the services of a temporary empioyee under the terms of the eontract or under the stemtory $ervice Rules reguiating the terms and conditions of senrice which, to put it differentiy. may have been the motive for terminating the services bet the motive by itself does not make the order punitive unless the order was “founded” on those factors or other disqualificatione." The Supreme Court, in the case of Pavanendra Nareyen Verme vs. Senjay Geno‘hr' PG! ef Marthe! Sciencee and enotner’g, observed in pare 21 as under :- K W “21. One 0%? 2he judiciaHy evohled tests ta deiermine whether in subs:ance an orde: af terminaticn is punitwe is to see whether aarior io the iermmakian there was {a} a fuQi-scaie formai enquiry (b) in’m aiiegations invokving mora! turpitude or misconduct whim (c) cuimEnated in a finding of guiit. if a” three facioa's we pre3ent the termination has been heid to be punitive irrespective of the form of the teimination cider. Convarseiy if any one of the three iaciore is missing, the termination has been upheld,“ “19. it mus: be borne in mind that no empioyee wheiher a piobai‘ionei' er temporary wiii be discharged or reverted, arbitr‘ariiy, without any rhyme or reason. Where a euperior officer, in order to satisfy himseii‘ Whether the employee concerned shouid be centinued in service er not makes inquiries for this purpose, it wouid be wrong to hoid that the inquiry which was held, was reaiiy 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 ioehinclrhis back, it is held that the order oi discharge or termination from service is punitive in nature, even a bone tide attempt by the superior officer to decide whether the employee concerned should be retained in service or not wouid run the risk 0t being dubbed as an order of punishment ........ ’ t The Supreme Court, in the case of 3tete of Punjab ens? others vs. Sukhwinder' Singit4, obsen/ed in para 19 as under :— K“ H, The Supreme Court, Era €he aase of Siaz‘s 9f Pargjab am” ofhers vs. Baibir Siiyghs, observed in para 7, as unde: :- “7. Thus the p¥incipie thai: in order to de‘sermine whether ihe misconduct £3 motive or foundation 0f order of termination, the test to be appiied is to ask the question as to what was the “objeot of the enquiry”. tf an enquiry 0t an assessment» is done with the object of finding out any mieconduct on the part of the employee and for that teason his services are terminated. then tt woutd be pnnitive in nature. On the other hand, it such an enquiry or an assessment is aimed at determining the suitabiiity of an employee tor a particular job, such termination wouid be termination simpliciter and not punitive in nature. This principie was taioi down by Shah, J. (as he then was) as eariy as 1961 in the case of State of Grissa v. Ram Narayan Des? it was heid that one should took into “object or purpose of the enqutry" and not merety hotd the termination to be punittve mereiy because of an antecedent enquiry. Whether it (order ot' termination) amounts to an order of dismissai depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such ‘v enquiry ......... u t2. For the reasons and analysis hereinabove, the impugned termination order dated 22-9-1999 (Annexure A5?) deserves to be quashed and is quashed. On the question of grant of back wages, no foundation has been laid with regard to the gainfut employment of the w» petitioner. Looking to the time-gap between passing of the impugned 2/ \5) termmation ordef emd passing of this order when the matter was pending in the Court and looking to the financiai coadiiion of the concerned resperadents, i1: wouid not be fair to gram fail back wages. This Com is of the opiniori ihat grant of 30% baak wages wouie be sufficient in the inteiesi of justice. 13. For the reasons above~stated anci the dicta laid down by the Supreme Court in various cases, this petition is aiioweci. The respondents are directed to reinstate the petitioner in service with 30% back wages. The petitioner wouid be entitied te eii censequentiai benefits iike seniority etc. on notionsi basis. in the r’acts and circumstances of the case there shaii be no order as to costs. Sd/- Sau'sh K. Agnihotri Judge q @984) 2 scc 359 (moo) 5 soc 152 (2002) ‘i SCC 520 (2005) 5 soc 569 (2004) 11 soc 743 (J1b£)i\)»~ Gopai