1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Mukesh v. AVVNL, Ajmer & Ors. S.B.CIVIL WRIT PETITION NO.8312/2007 under Article 226 of the Constitution of India. Date of Order :: 11th September, 2008 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Harish Purohit, for the petitioner. Mr. Manoj Bhandari, for the respondents. .... BY THE COURT : By an order dated 12.7.2005 appointment was given to the petitioner as Junior Engineer with respondent Ajmer Vidhyut Vitran Nigam Limited. On 27.10.2006, a first information report bearing No.296/2006 was registered against the petitioner by Anti Corruption Bureau, Udaipur alleging commission of offences under Sections 7, 13(1)(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, thus, 2 Chairman-cum-Managing Director of the respondent Corporation passed an order dated 15.11.2007 terminating the petitioner from service with immediate effect, as per the condition No.3 referred in the order of appointment and that reads as follows:- “3.Services of the above Probationer-Trainees can be terminated at any time by giving one month's notice in writing or by giving one month's remuneration in lieu thereof; except in case of misconduct of any description where services could be terminated as per relevant provisions, contained in the AVVNL Employees (CC&A) Regulations, 1962 without giving any kind of notice and such persons would not be entitled to any kind of compensation.” While assailing validity of the order of termination, it is contended by the petitioner that the termination impugned is an out come of certain findings arrived at behind his back and those findings are foundation of the order impugned. It is asserted that no such order could have been passed without adhering the procedure prescribed for imposing a major penalty as per the provisions of the Ajmer Vidhyut Vitran Nigam Limited (Classification, Control & Appeal) Regulations, 1962 read with Employees Service Regulations, 1976. Per contra, as per Shri Manoj Bhandari, appearing on behalf of the respondents, the service of 3 the petitioner was terminated without arriving at any finding of misconduct and as such the reference given in the order dated 15.11.2007 relating to lodging of a criminal case against the petitioner is only a motive and not foundation for termination from service. The petitioner was working with the respondent Corporation on probation and during this period he was found involved in a case relating to corruption, therefore, without reaching at any specific finding relating to misconduct he was terminated from service in simplicitor manner. Heard counsel for the parties. Hon'ble Supreme Court in the case of Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and others, reported in AIR 1999 SC 983, finally made a distinction in effect of the motive behind termination from service and the foundation for terminating service of a probationer. It was held that “if findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom 4 there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid.” In the case of Chandra Prakash Shahi v. State of U.P. and others, reported in AIR 2000 SC 1706, Hon'ble Supreme Court in quite detail considered this issue and interpreted the terms “foundation” and “motive” as under:- “28.-The important principles which are deducible on the concept of “motive” and “foundation”, concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that 5 misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of “motive”. 29.-”Motive” is the moving power which implies action for a definite result, or to put it differently, “motive” is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which implied the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry.” In the instant matter validity of the order dated 15.11.2007 is required to be examined on basis of the principles settled by Hon'ble Supreme Court in the cases referred above. The impugned order dated 6 15.11.2007 reads as follows:- “A criminal offence against Shri Mukesh Kumar Mehta Junior Engineer-II Probationer Trainee. Office of the Assistant Engineer (O&M), Sarada is under investigation by Anti Corruption Bureau, Udaipur and an FIR No.296/2006 Dtd. 27/10/2006 has been lodged. A Sh. Mukeseh Kumar Mehta JEN-II (Probationer Trainee) was appointed on Probation for Two Years (2) years vide order No.05/D.69 Dt.04-04-2007 and whereas a case has been registered against the said official by the Anti Corruption Bureau. Now, therefore, in view of condition No.3 of his appointment order No.05./D.69 Dt.04-04-2007 of the Chairman & Managing Director, AVVNL, Ajmer being the appointing authority has ordered to terminate Sh.Mukeseh Kumar Mehta, Junior Engineer-II(PT) with immediate effect. Accordingly, Mukeseh Kumar Mehta Junior Engineer-II (Probationer Trainee) is hereby terminated with immediate effect from the Nigam services.” From the simple reading of the order impugned it gives an impression as if the termination of the petitioner was made without holding any inquiry, without giving any finding regarding misconduct and without causing any stigma against the petitioner. The order impugned simply refers lodging 7 of a criminal case against the petitioner but not about any finding of misconduct against him and as such prima facie the reason given for discontinuing the petitioner from service just appears to be a motive. However, the reply filed on behalf of the respondents alters the entire complexion of the issue and it establishes that as a matter of fact the lodging of a criminal case against the petitioner for the offences punishable under the Prevention of Corruption Act, 1988 is not a motive but a foundation for terminating him from service. In para 3 of the reply to the writ petition it is a specific case of the respondents that the petitioner demanded bribe and that is misconduct and, therefore, an action had been taken to terminate him from service. Relevant portion of the reply reads as follows:- “During the pendency of the probation period, the petitioner has been found guilty of misconduct in a corruption case and in the draft prosecution sanction by the Anti Corruption Bureau, it has been revealed that the petitioner had demanded the bribe and so this act of demanding bribe by the petitioner is misconduct and the action had been taken for termination from the Nigam Services which is based on the Employees Service Regulations of 1976 and in consonance with the AVVNL (Classification, Control and Appeal) Regulations, 1962, 8 (hereinafter referred to as the Regulations of 1962) whereby the services during the probation period, can be terminated without giving any kind of notice and such person would not be entitled to any kind of compensation also.” Similarly, contents of para 6 of the reply to the writ petition also refers about finding of misconduct arrived by the respondents against the petitioner. The contents of para 6 referred above reads as follows:- “That the averment contained in Para No.6, are not admitted in the manner stated and hence denied. It is submitted that it was an October, 2007 i.e. of 31st Oct., 2007, the Dy. Superintendent of Police, ACB, Udaipur had submitted the Furd Transcript, Site Map and copy of the order of Chief Judicial Magistrate, Udaipur vide which, it is mentioned that summons were issued and delivered for voice test of Shri Mukesh Mehta, JEN, for which, he would not presented himself for the same in the Court, hence, court has passed order accordingly. It was mentioned in the draft prosecution sanction/Furd Transcript by ACB that Shri Mukesh had demanded the bribe and hence, he is delinquent, as such this act of demanding bribe by Shri Mumesh, JEN is misconduct and the action taken for termination from Nigam services was based upon the ESR, 1976 Rule 28 along with Rajasthan Government Circulars and Condition No.3 of Terms & Conditions already mentioned in his appointment letter. 9 A copy of the Furd Transcript issued by the Anti Corruption Bureau, Udaipur, shall be kept ready for the perusal of this Hon'ble Court at the time of arguments. Therefore, in terms of the provisions contained under CCA Rules, 1962 i.e. Rule 5(v), a Probationer's services can be terminated without giving any notice and for that purpose, it shall not amount to penalty within the meaning of Regulations. It has further been provided in the Employees Conduct Regulation, 1976 that taking or giving bribe or any illegal gratification what so ever, shall be an act constituting the misconduct under Regulation 5 of the Regulations of 1962 and since the petitioner was on probation, his services were terminated in accordance with the Regulations of 1962 and as per the appointment order, the same required no notice whatsoever. In that view of the matter, the contention raised by the petitioner is of no consequence.” In para 10 of the reply to the writ petition also the respondents have reiterated that the petitioner was found involved in a case relating to corruption and, therefore, a decision was taken to terminate him from service. Relevant portion of para 10 of the reply to the writ petition reads as follows:- “It is submitted that the facts of the case are writ large on the fact of it that the petitioner has been found involved in an 10 anti corruption case and the charge levelled against the petitioner who being a probationer, is absolutely clear that while performing the duty and the raid being conducted by the ACB on 26th July, 2006, he was found to be taking a bribe of Rs.3000/-. As soon as the party reached to the site, he run away from the site along with the amount by his motor cycle and he could no be traced even by Mobile Phone due to switch off. Therefore, furd was lodged against him by the ACB under the relevant provisions and subsequently after receiving the furd transcript and draft prosecution sanction, the answering respondents summoned the petitioner and subsequently to that, the order of termination was passed by the answering respondents under the Regulations of 1962 read with Employees Conduct Rules, 1976. There is provision of enquiry in the case of the Probationer as mentioned under the Rules, the services of the petitioner can be terminated without even giving any notice, if he is found guilty during the probation period as per Regulation 5(v) of the Regulations of 1962 read with Conduct Regulations of 1976.” Similarly, the specific stand regarding termination of the petitioner from service as referred in para 11 of the reply to the writ petition is that “the petitioner's termination on any of the grounds, is in terms as a misconduct within the Regulations of 1962 and hence, it is an act committed by the petitioner which is unbecoming of a Govt. servant and so, his services have rightly been terminated and 11 there is no question of any violation of Articles 14 and 311 of the Constitution of India.” In para 15 of the reply also the respondents reiterated that the petitioner was guilty for a misconduct and, therefore, he was not a person fit to retain in service. From reading of the contents of the reply to the writ petition, it is apparent that the respondents without affording any opportunity to defend himself terminated the petitioner from service by giving a finding of misconduct. In such circumstances, it can be very well said that the termination of the petitioner is founded on a misconduct and the reference of lodging a criminal case for the offences punishable under the Prevention of Corruption Act, 1988 in the order of termination is not mere a motive. A termination founded on an act of misconduct could have not been passed without holding an inquiry as per the provisions of the Regulations of 1962. Admittedly, no such inquiry was conducted by the respondents, therefore, the order impugned is apparently bad. For the reasons stated above, the petition for writ deserves acceptance and, therefore, the same is allowed. The order impugned dated 15.11.2007 passed by the Chairman & Managing Director, Ajmer Vidhyut Vitran Nigam Limited, Ajmer is hereby quashed. The 12 petitioner is declared entitled for reinstatement in service with consequential benefits. The respondents are at liberty to take any action against the petitioner as per law for his alleged involvement in the act of corruption. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.