IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 526 of 2005 Reserved on: 2.1.2008 Decided on: 27.02.2008 Roshan Lal. … … Petitioner. Versus The Hon’ble Chief Justice and others. … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 . Yes For the Petitioner: Mr. Rajnish Maniktala, Advocate For the Respondents: Mr. Ajay Mohan Goel, Advocate. Rajiv Sharma, Judge: The brief facts necessary for the adjudication of this petition are that pursuant to the advertisement for the post of Chowkidar, the petitioner appeared in the selection process and was offered the appointment for the post of Chowkidar on temporary basis against the vacant post vide letter dated 4th March, 2004. In sequel to letter dated 4th March, 2004, he was appointed as a Chowkidar in the pay scale of Rs. 2520-4140 vide office order dated 9th March, 2004. It was specifically mentioned in the office order dated 9th March, 2004 that the appointment shall be subject to the terms and conditions laid down in the office order dated 4th March, 2004. The petitioner’s services were dispensed with vide office order dated 30th June, 2004. The petitioner has assailed the office order dated 30th June, 2004 by way of present 1 Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - writ petition as well as the office order dated 14th December, 2004 whereby the decision of the appeal preferred by him was conveyed. Mr. Rajnish Maniktala, Advocate appearing on behalf of the petitioner had strenuously argued that the orders dated 30th June, 2004 and communication dated 14th December, 2004 are bad in law primarily on two grounds i.e. (i) that the office order dated 30th June, 2004 is punitive in nature and (ii) the petitioner was not served with one month’s notice as per the terms and conditions stipulated in the office order dated 4th March, 2004. Mr. Ajay Mohan Goel, Advocate had supported the impugned orders passed by the respondents. He had strenuously argued that the order of termination of the petitioner is simpliciter and does not cast any stigma on the petitioner. He had further contended that the petitioner has not been found suitable to discharge the duties of the Chowkidar and his services were dispensed with during the period of probation. I have heard the learned counsel for the parties and perused the record. The Court had directed respondent No.3 to produce the entire record. Respondent No.3 produced the entire record for the perusal of the Court. It appears from the facts gathered and discussed herein- above and as per the record produced by respondent No.3 that the petitioner was offered the appointment on 4th March, 2004. He was put on probation for a period of two years as per condition No.1 of office order dated 4th March, 2004. His services were liable to be terminated on one month’s notice from either side as per condition No.7 of the office order dated 4th March, 2004. It appears from the record that a complaint was lodged by Smt. Veena Devi against the petitioner to - 3 - respondent No.3 on 26.6.2004 mentioning therein that the petitioner had been harassing her while she was working in the Sessions House, Hamirpur. The Additional District and Sessions Judge had also made an endorsement on the complaint made by the complainant on the same date i.e. 26.6.2004. The District and Sessions Judge vide note dated 28.6.2004 decided to hear Smt. Veena Devi as well as the petitioner. Smt. Veena Devi appeared before the District and Sessions Judge on 28.6.2004 at 4.30 P.M. She had categorically stated before the District and Sessions Judge on 28.6.2004 that the petitioner was misbehaving with her with ulterior motive pursuant to which her statement was recorded on 28.6.2004 and the same has been placed on the record. Respondent No.3 sought the comments of petitioner on 28.6.2004 after the receipt of the complaint of Smt. Veena Devi. He submitted reply to the notice dated 28.6.2004 and denied the charges levelled against him by Smt. Veena Devi. The District and Sessions Judge on 29.6.2004 after the receipt of the notice has made a detailed note on 29.6.2004. It will be apt to reproduce the note dated 29.6.2004 in its entirety to adjudicate this petition effectively, which reads thus: “Reply to the show cause notice issued to Sh. Roshan Lal, Peon seen. He has virtually denied the allegations of Veena Devi. He has taken excuse that cleaning work was not done by Veena Devi and she insisted that she would leave the job and started going back without dusting and cleaning and when asked to do complete work threatened to see him. Qua conduct of Sh. Roshan Lal, Ld. Add. District and Sessions Judge has also adversely commented. Reply of Sh. Roshan Lal does not appear to be convincing because Smt. Veena Devi, who is widow, was appointed as part time safai Karamchari on 3.6.3004. She was in need of job as told at the time of interview because has two minor children to looked-after. Consequently, could not have threatened - 4 - to leave job unless and until forced by some other circumstances. The work at Sessions House, Hamirpur was not also heavy because it consisted of two rooms and a lobby. The work could have been completed in short time. Therefore, reply of Sh. Roshan Lal does not appear to be proper and has taken a false plea. Also there is no reason to disbelieve Veena Devi that Sh. Roshan Lal is having evileyes on her. Said Roshan Lal was also warned earlier vide this office letter No.DSJ (HMR)EC/7-29/2004- 3584, dated 4.6.2004 for not doing his duties properly. Sh. Roshan Lal was appointed as Chowkidar vide office order No.DSJ(HMR)EC/2-11/85/1784, dated 9/10-3- 2004 temporarily on probation of two years, after he had accepted the offer of appointment. As such he is a temporary employee on probation for two years w.e.f. 10.3.2004. His conduct as a public servant during the period of probation is not satisfactory by any mode. He has attempted to spoil good atmosphere by misbehaving with a woman on duty. This he did deliberately and initially with evileyes on a lady doing her duty in the Sessions House of which he was looking after as Chowkidar. This conduct as such is unbecoming of a public servant. He is most unfit to be retained in service due to his bad conduct. As Sh. Roshan Lal is on probation period w.e.f. 10.3.2004 upto two years, so it is no more in public interest to retain him in the service and consequently deserves to be discharged from service without assigning any reason as per condition of probation period. Let order to discharge him from service be issued relieving him from the job with immediate effect.” The services of the petitioner were dispensed with by respondent No.3 on 30.6.2004. The petitioner was relieved of his duties with effect from 30.6.2004 itself. He preferred an appeal before the competent authority on 7.7.2004. The appeal preferred by the - 5 - petitioner was rejected and the decision dated 14th December, 2004 was conveyed to the petitioner on 17/18.12.2004. The Court now has to consider whether the impugned order of termination is simpliciter in nature or is punitive if the attending circumstances are looked into by lifting the veil. The petitioner was appointed on temporary basis and was put on probation for two years. The complaint has been lodged by Smt. Veena Devi levelling serious charges against the petitioner. Her statement was recorded by respondent No.3 and the comments of the petitioner were also sought by respondent No.3. The petitioner had submitted reply to the notice. It is apparent from the note dated 29.6.2004 that the services of the petitioner have been dispensed with on the basis of the complaint lodged by Smt. Veena Devi. What has been stated in the note dated 29.6.2004 is that the petitioner attempted to spoil good atmosphere by misbehaving with a woman on duty and his conduct was unbecoming of a public servant and was unfit to be retained in service due to his bad conduct. Though office order dated 30th June, 2004 is innocuous but when the same is read in conjunction with note dated 29.6.2004 it shows that the services of the petitioner have been dispensed with on the basis of misconduct without holding regular inquiry. A regular inquiry was required to be held against the petitioner after lodging of the complaint by Smt. Veena Devi, which has led to his termination. Their Lordships of the Hon’ble Supreme Court in P.L. Dhingra versus Union of India AIR 1958 SC 36 have held as under: “But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the government may, nevertheless, choose to punish the servant and if the termination of service is sought to be - 6 - founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with.” Their Lordships of the Hon’ble Supreme Court in The State of Punjab and another versus Sukh Raj Bahadur AIR 1968 SC 1089 have culled out the following propositions while dealing with the termination of the services of a temporary employees: “On a conspectus of these cases, the following propositions are clear:- 1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable from preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.” Their Lordships of the Hon’ble Supreme Court in Appar Apar Singh versus State of Punjab and others 1970 (3) SCC 338 have - 7 - held that the circumstances preceding or attendant on the impugned order have also to be examined. Their Lordships have held as under: “After a review of the case-law on the subject, this Court in State of Punjab and another versus Sh. Sukh Raj Bahadur has enunciated the following propositions which have to be borne in mind in considering the grievance of an officer regarding violation of Article 311 (2). These propositions are as follows: 1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable from preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article. In particular it will be noted from the above propositions that the circumstances preceding or attendant on the impugned order have to be examined in each case, the motive behind it being immaterial and if the order visits the public servant with any evil consequence, it must be considered to be one by way of punishment whether he was a mere probationer or a temporary servant. But it is - 8 - also clear that an order passed after an enquiry is conducted to ascertain whether the public servant should be retained in service or not, does not attract Article 311 (2) of the Constitution. From a review of the decisions cited above, it is clear that in order to find out whether an impugned order is one passed by way of punishment, the form in which the order is expressed is not decisive and the circumstances preceding or attendant on the order have to be examined in each case. It is also clear that the motive behind the passing of the order is of no consequence. Whether penal consequences flow from the order will have also to be investigated. Having due regard to the propositions enunciated, we will now proceed to consider whether the impugned order can be considered to be one reducing the rank of the appellant as by way of punishment. If the State is able to establish its plea that the enquiry conducted by the two Deputy Directors was only to find out the suitability of the appellant to be continued as Principal and that as he was found to be unsuitable he was reverted, then the order cannot be considered to be by way of punishment. We however find considerable difficulty in accepting this plea of the State. From the facts given by us in setting out the circumstances leading to the filing of the writ petition, it is clear that the enquiry conducted by the two Deputy Directors was not with a view to find out the suitability or otherwise of the appellant to be continued as Principal. On the other hand, the enquiry was held with a view to investigate into the allegations made by the Principal against some of the members of the staff and the allegations made by Prof. Kapur against the appellant. We have already referred to the questionnaire issued to the appellant and also the points set for determination by the Deputy Directors as also the findings recorded by them. We have already pointed out that one of the allegations which were investigated by the Deputy Directors related to a very serious matter, namely, the charge levelled by Prof. Kapur against the Principal having come to the stage drunk - 9 - and having done makeup of the girls. We are not concerned with the validity of the enquiry conducted by the Deputy Directors because it is admitted by the State that the said enquiry was conducted ex parte and behind the back of the appellant. It has also been admitted that the statements recorded by the Deputy Directors from various persons were not disclosed to the appellant and the latter had also no opportunity to cross-examine those witnesses. But a finding was recorded by the Deputy Directors that the said allegation made against the Principal has been corroborated by the girls themselves and by the members of the staff who were on the stage. The Deputy Directors after recording this finding against the appellant also recommended that the appellant needs “some exemplary punishment without being called upon to face a regular departmental enquiry”. The Government accepted the finding of the Deputy Directors as well as their recommendation to impose punishment against the appellant and it is on the basis of such acceptance that the order of reversion was passed. No doubt, the order by itself and on the face of it is innocuous but, in our view, the finding recorded by the Deputy Directors against the appellant and their recommendation to impose punishment upon the appellant are the very foundation for the Government for passing the order reverting the appellant from P.E.S.’ Class 1 to P.E.S. Class II.” The Hon’ble Supreme Court in Shamsher Singh versus State of Punjab AIR 1974 SC 2192 has held that if the probationer is discharged on the ground of mis-conduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Constitution. Their Lordships have held as under: - 10 - “No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Constitution.” Their Lordships of the Hon’ble Supreme Court have held in Gujarat Steel Tubes Ltd and others versus Gujarat Steel Tubes Mazdoor Sabha and others (1980) 2 SCC 593 that the court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is and if the order has a punitive flavour in cause or consequence it is dismissal. Their Lordships have held as under: “Before we leave this part of the case, a reference to some industrial law aspects and cases may be apposite though a little repetitive. Standing orders certified for an industrial undertaking or the model Standing Orders framed under the Industrial Employment Standing Orders Act provide for discharge simpliciter, a term understood in contradistinction to punitive discharge or discharge by way of penalty. It is not unknown that an employer resorts to camouflage by garbing or cloaking a punitive discharge in the innocuous words of discharge simpliciter. Courts have to interpose in order to ascertain whether the discharge is one simpliciter or a punitive discharge, and in doing so, the veil of language is lifted and the realities perceived. In the initial stages the controversy raised was whether the court/tribunal had any jurisdiction to lift such a veil. Probe and penetrate so as to reveal the reality, but this controversy has been set - 11 - at rest by the decision in Western India Automobile Association v. Industrial Tribunal, Bombay13. The wide scope of the jurisdiction of industrial tribunal/ court in this behalf is now well established. If standing orders or the terms of contract permit the employer to terminate the services of his employee by discharge simpliciter without assigning reasons, it would be open to him to take recourse to the said term or condition and terminate the services of his employee but when the validity of such termination is challenged in industrial adjudication it would be competent to the industrial tribunal to enquire whether the impugned discharge has been effected in the bona fide exercise of the power conferred by the terms of employment. If the discharge has been ordered by the employer in bona fide exercise of his power, then the industrial tribunal may not interfere with it; but the words used in the order of discharge and the form which it may have taken are not conclusive in the matter and the industrial tribunal would be entitled to go behind the words and form and decide whether the discharge is a discharge simpliciter or not. If it appears that the purported exercise of power to terminate the services of the employee was in fact the result of the misconduct alleged against him, then the tribunal would be justified in dealing with the dispute on the basis that, despite its appearance to the contrary, the order of discharge is in effect an /order of dismissal. In the exercise of this power, the court/tribunal would be entitled to interfere with the order in question (see Assam Oil Co. v. Its Workmen). In the matter of an order of discharge of an employee as understood within the meaning of the Industrial Disputes Act the form of the order and the language in which it is couched are not decisive. If the industrial court is satisfied that the order of discharge is punitive or that it amounts to victimization or unfair labour practice it is competent to the court/ tribunal to set aside the order in a proper case and direct reinstatement of the employee (see Tata on Mills Co. Ltd. v. Workmen). The form used - 12 - for terminating the service is not conclusive and the tribunal has jurisdiction to enquire into the reasons which led to such termination. In the facts of the case it was found that Standing Orders provided that an employee could ask for reasons for discharge in the case of discharge simpliciter. Those reasons were given before the tribunal by the appellant, viz., that the respondent's services were terminated because he deliberately resorted to go-slow and was negligent in the discharge of his duty. It was accordingly held that the services of the employee were terminated for dereliction of duty and go- slow in his work which clearly amounted to punishment for misconduct and, therefore, to pass an order under Clause 17(a) of the Standing Orders permitting discharge simpliciter in such circumstances was clearly a colourable exercise of power to terminate services of a workman under the provisions of the Standing Orders. In these circumstances, the tribunal would be justified in going behind the order and deciding for itself whether the termination of the respondent's services could be sustained (vide Management of Murugan Mills Ltd. v. Industrial Tribunal, Madras). This view was affirmed in Tata Engineering & Locomotive Co. Ltd. v. S. C. Prasad). After approving the ratio in Murugan Mills cases, this Court in L. Michael v. M/s. Johnson Pumps India Ltd, observed that the manner of dressing up ~order did not matter. The slightly different observation in Workmen of Sudder Office, Cinnamare v. Management was explained by the Court and was further affirmed that since the decision of this Court in Chartered Bank v. Chartered Bank Employees' Union it has taken the consistent view that if the termination of service is a colourable exercise of power vested in the management or is a result of victimization or unfair labour practice, the court tribunal would have jurisdiction to intervene and set aside such termination. It was urged that a different view was taken by this Court in Municipal Corporation of Greater Bombay v. P. S. Malvenkar. The employee in that case was - 13 - discharged from service by paying One month's wages in lieu of notice. This action was challenged by the employee before the Labour Court and it was contended that it was a punitive discharge. The Corporation contended that under Standing Order 26 the Corporation had the power to djs-scharge but there was an obligation to give reasons if so demanded by the employee. The Corporation had also the power to discharge by way of punishment. The Court in this connection observed as under: Now one thing must be borne in mind that these are two distinct and independent powers and as far as possible neither should be construed so as to emasculate the other or to render it ineffective. One is the