L.P.A No. 60 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- L.P.A No. 60 of 2003 Date of decision: 20.01.2009 The High Court of Punjab & Haryana, Chandigarh and anr ......Petitioners Versus Dilbagh Singh .......Respondent Coram: Hon'ble Mr. Justice Ashutosh Mohunta Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Amit Jain, Advocate for the petitioner Mr. G S Bal, Advocate for the respondent -.- Nirmaljit Kaur, J. Facts of the case, in brief, which culminated into filing of the present appeal are that respondent, Dilbag Singh, was issued appointment letter dated 26th July, 1976 (Annexure P-1) by the District and Sessions Judge, Ropar for appointing him as Process Server. His appointment was purely on temporary basis, and the same was liable to be terminated at any time without any notice and without assigning any reason. On the basis of complaint dated 03.11.1981, made by the Senior Sub Judge, Ropar, the petitioner was placed under suspension by the District and Sessions Judge, Ropar with effect from 03.10.1981. Accordingly, a charge sheet was issued to the petitioner. On 23.11.1981, the petitioner submitted his reply denying the allegations levelled against him in the said charge-sheet. The L.P.A No. 60 of 2003 2 aforesaid reply filed by the petitioner was considered by the District and Sessions Judge, Ropar and found it unsatisfactory. A regular departmental enquiry was ordered to be held against him. After receiving the report of the Enquiry Officer holding him guilty of having committed gross act of insubordination, Shri Dilbag Singh was duly informed of the imputation of misconduct, as well as the finding of the Inquiry Officer, and was also given personal hearing for the imposition of minor punishment. Respondent was found guilty of gross mis-behaviour. However, keeping in view the peculiar circumstances of the case, only a penalty of censure with recordable entry in his service book was inflicted on him. Thereafter, vide order dated 12.01.1984 (Annexure P-3), passed by the District and Sessions Judge, Rupnagar, the services of the petitioner were terminated, as 'no longer required'. Then, the petitioner preferred an appeal against the order of termination before this Hon'ble Court. During the pendency of his service appeal, the petitioner also filed Civil Writ Petition No. 19203 of 1991 challenging his termination order, which was dismissed vide order dated 20.12.1991 (Annexure R-2). Thereafter, the petitioner filed Petition for Special Leave to Appeal (Civil No. 14435 of 1995) before the Hon'ble Supreme Court, which was also dismissed vide order dated 07.12.1992 with the observations that the departmental appeal of the petitioner be disposed of within a period of three months. Finding no merit in the service appeal filed by the petitioner, the same was dismissed vide order dated 31.08.1995 (Annexure P-8). The petitioner challenged the aforesaid action of the respondents by filing Civil Writ Petition No. 15852 of 1995, which was allowed by the learned Single Bench of this Court vide order L.P.A No. 60 of 2003 3 dated July 3, 2002. The present LPA has been filed by the appellant, challenging the order dated 03.07.2002 passed by the learned Single Judge in CWP No. 15852 of 1995 vide which the learned Single Bench has allowed the writ petition filed by the respondent, and quashed the order of his termination dated 12.01.1984 (Annexure P-3), as also ordered his reinstatement with all consequential benefits viz. Seniority, arrears of pay etc. Learned counsel for the appellant has challenged the judgment of the learned Single Judge mainly on the ground that civil writ petition (CWP No. 19203 of 1991) against the order of termination dated 12.01.1984 stood already dismissed by this Court vide judgment dated 20.12.1991. Moreover, the petition for Special Leave to Appeal (Civil No. 14435 of 1995) challenging the order dated 20.12.1991 passed in the Civil Writ Petition No. 19203 of 1991, has also been dismissed by Hon'ble the Supreme Court although with the direction to this Court to decide his service appeal within three months. As such, the order of termination has been affirmed by Hon'ble Supreme Court. Therefore, the order dated 03.07.2002 passed in Civil Writ Petition No. 15852 of 1995 is liable to be quashed. Secondly, the termination is a simpliciter order of termination, as the services of the respondent were terminated in accordance with the terms of the appointment letter as no longer required. Moreover, the impugned order was not punitive in nature and the same could not have been set aside by holding it as punitive. On the other hand, learned counsel for the respondent justifies the order dated 03.07.2002 passed in Civil Writ Petition No. 15852 of 1995 L.P.A No. 60 of 2003 4 by submitting that although the termination order was passed on the ground that the services of the respondent were no longer required but at the same time 14 persons junior to the respondent were retained in service and hence, this action in itself shows that the same was punitive in nature . It is further submitted that since the respondent already stood punished vide order dated 12.01.1984, he could not have been punished second time on the basis of the same charges and the same, therefore, suffers from double jeopardy. After giving thoughtful consideration to the arguments advanced by learned counsel for the parties, the fact is that the present Letters Patent Appeal deserves to be allowed. Although, the counsel for the appellant is technically correct to the extent that the writ petition against the order of termination dated 12.01.1984 was dismissed in limine and the Petition for Special Leave to Appeal filed against the order dismissing the writ petition, was also dismissed and thereby, the order of termination stood affirmed, we deem it proper to decide the present appeal on merit, in view of the fact that Hon'ble the Supreme Court while dismissing the Petition for Special Leave to Appeal, had directed this Court to decide the service appeal of the respondent within a period of three months. The order dismissing the service appeal has given a fresh cause of action to the respondent. Admittedly, Dilbag Singh (respondent) was a temporary employee. During his tenure as temporary employee, a complaint of insubordination was made against him. A regular departmental Inquiry was ordered to be held against him. A charge sheet was issued. He L.P.A No. 60 of 2003 5 submitted his reply to the charge sheet. A regular departmental Inquiry was conducted and after granting him personal hearing, a punishment of censure with recordable entry in his service book was imposed. There was nothing to stop the punishing authority from passing the order of dismissal, but the same was not done, and only a punishment of 'censure' with recordable entry in his service book was inflicted. It was only subsequent thereto that the order of termination dated 12.01.1984 was passed terminating the services of the respondent as no longer required. The order dated 12.01.1984 cannot be connected with the complaint resulting in punishment of 'Censure' As such, it cannot be said that the aforesaid action is punitive in nature. Respondent cannot blow hot and cold in the same breath. He cannot say on one side that the services of a temporary employee cannot be terminated without following the provisions of Article 311(2) of the Constitution of India, and at the same time submits that Dilbag Singh has been punished on account of an earlier complaint for which, a regular departmental inquiry was conducted by following the provisions of law. Even though, it is correct that a regular enquiry was held, still it cannot be concluded that it was the basis for the order of the termination. In pursuance to the enquiry, only 'censure' was awarded. The order of termination can always be passed in view of the service record and cannot be viewed as punitive. Thus, it was the motive, and not the foundation of the termination order. In para 15 of the 'State of Punjab and Ors. v. Balbir Singh,' 2004(11) S.C.C. 743, it was held as follow:- “15. In the present case, order of termination cannot be held to be punitive in nature. The misconduct on behalf of the L.P.A No. 60 of 2003 6 respondent was not the inducing factor for the termination of the respondent. The preliminary enquiry was not done with the object of finding out any misconduct on the part of the respondent, it was done only with a view to determine the suitability of the respondent within the meaning of Punjab Police Rule 12.21. The termination was not founded on the misconduct but the misbehaviour with a lady Constable and consumption of liquor in office were considered to determine the suitability of the respondent for the job, in the light of the standards of discipline expected from police personnel.” Thus, the arguments of the counsel for the respondent that the termination of the services of the respondent amounts to second punishment, is also not correct because the termination is simpliciter order of termination, and not passed by way of punishment. He was a temporary employee, and his services were terminated in accordance with the terms of the appointment letter. Another argument raised that the employees junior to the respondent were retained in service, while the services of the respondent were dispensed with, has no force on account of the fact that the services of a temporary employee need not be regularized in view of the bad service record vis-a-vis other temporary employee having better service record, even though junior to the concerned employee. Hon'ble the Supreme Court in the case of 'State of Uttar Pradesh v. Kaushal Kishore Shukla', 1991 (1) SCC 91, held that the allegations made against the temporary Government employee in the L.P.A No. 60 of 2003 7 counter affidavit by way of defence filed on behalf of the appellants did not change the nature and character of the order of termination. In the case of 'Union of India and others v A.P. Bajpai and others 2003 (2) RSJ 449, Hon'ble Supreme Court has held that the employer was entitled to assess the unsuitability of the respondent to continue on the post, for which he was appointed and while holding so, has relied on the decision rendered by the Hon'ble Supreme Court in the case of 'Krishnadevaraya Education Trust Vs. L.A. Balakrishna', 2001 (9) SCC 319, wherein it was observed that while dealing with a case of termination simpliciter of a probationer that there can be no manner of doubt that the employer is entitled to engage the service of a person on probation and terminate his service, if found unsatisfactory. In the case in hand, full justice having been done to the employee, inasmuch as, a regular departmental Inquiry was held to go into the charges and was found guilty, but in spite of the same, only a punishment of 'censure' with recordable entry in his service book was inflicted upon him. Subsequent thereto, his services were terminated, as no long required in terms of the appointment letter. The order of termination of his services was simpliciter without attaching any stigma to it. Even if the District and Sessions Judge, Rupnagar had the “insubordination” in mind, while dispensing with the services of the respondent, the same does not change the nature and character of the order of termination being simpliciter, inasmuch as, service of a temporary employee can be terminated if he is found unsuitable for the post. In the present case, it, prima facie, shows that his work was not satisfactory. Learned counsel for the respondent has also relied on the judgment of Hon'ble Supreme Court L.P.A No. 60 of 2003 8 in the case of 'Jarnail Singh and others v. State of Punjab and others', 1986 (2)Service Law Reporter-278, to assail that services of employee terminated by way of punishment without affording any opportunity while the persons junior to the petitioners retained in service, is violative of Articles 14 and 16 of the Constitution of India. The aforesaid case law does not help the respondent, inasmuch as, the order of termination of his services was simpliciter and not passed by way of punishment. Counsel further relied on the judgment of the Hon'ble Supreme Court rendered in the case of 'Anoop Jaiswal v. Govt. of India, 1984 (2) SCR 453, to substantiate that the order of termination on the ground of misconduct cannot be passed without holding any inquiry as contemplated under Articles 311(2) of the Constitution of India. The aforesaid judgment is also not applicable to the facts of the present case, as the order of termination was not passed on the ground of misconduct. In view of the above narration of facts, we allow the present Letters Patent Appeal and set aside the order dated 03.07.2002 passed in Civil Writ Petition No. 15852 of 1995 and uphold the order of termination dated 12.01.1984 (Annexure P-3), as also the order dated 31.08.1995 (Annexure P-8) passed in the service appeal preferred by the respondent against the termination order. [Nirmaljit Kaur] Judge [Ashutosh Mohunta] Judge 20.01.2009 mohan