IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.7837 of 2008 (OA No.1777/2001) Judgment reserved on : 24.7.2009 Date of decision : 28.7.2009. Suresh Chand …Petitioner. Versus State of H.P. and another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 yes For the Petitioner : Mr. P.P.Chauhan, Advocate. For the Respondents : Mr. R.K.Sharma, Senior Additional Advocate General with Mr. R.P.Singh, Asstt. Advocate General. Kuldip Singh, Judge On abolition of Himachal Pradesh Administrative Tribunal, Original Application No. 1777 of 2001 which was filed in the erstwhile Tribunal was transferred to this Court under the Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008 and thereafter O.A.No. 1777 of 2001 has been registered as CWP (T) No. 7837 of 2008 in this Court. 2. The facts in brief are that the petitioner was appointed as T.G.T.( Non-Medical) vide office order dated 31.7.1995. He was later on transferred to Government Senior Secondary School, Smaila, District 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Mandi. Kumari Promila, student of 9th B reported the matter to police on 8.6.2001 thereupon FIR No. 129 of 2001 was registered at Police Station, Sarkaghat on 9.6.2009 under Sections 354, 342, 506 IPC. The Deputy Director, Central Zone, Mandi conducted some inquiry on the report lodged by the student and he recorded the statement of Kumari Promila, the petitioner was not associated in the inquiry. On the basis of inquiry conducted by the Deputy Director, Education, Central Zone. Mandi, the respondent No.2 terminated the services of petitioner vide order dated 15.6.2001 vide Annexure A-1. 3. It has been alleged that no regular inquiry was conducted as stipulated under Article 311 of the Constitution of India. The inquiry conducted by the Deputy Director of Education, Central Zone, Mandi was in violation of principle of natural justice. The imposition of penalty of dismissal from service is arbitrary and grossly excessive and in violation of Article 14 of the Constitution of India. There was no justification for dispensing with inquiry as contemplated by Article 311 (2). The petitioner was regular teacher and his services could not have been terminated without due recourse to Article 311 of the Constitution. The judgment relied by the respondent No.2 in the impugned order is not applicable. The petitioner has prayed for quashing and setting – aside of Annexure A-1 dated 15.6.2001 and a direction to respondents to reinstate the petitioner to the post of T.G.T. (Non-Medical) with all consequential benefits like continuity in service, seniority and arrears of salary etc. along with interest. 4. The petition was contested by respondents No.1 and 2 by filing reply. It has been pleaded that services of the petitioner were terminated after inquiry which was conducted by the Deputy Director of 3 Education, Central Zone, Mandi. The services of the petitioner were terminated under Rule 5 of Central Civil Services (Temporary Service) Rules, 1965 in order to maintain high values and strict discipline in the educational institutions. The petitioner is not entitled to any relief. The respondents have relied on the judgment of Supreme Court titled as Avinash Nagra Vs. Navodaya Vidyalaya Samiti in support of their action taken against the petitioner. 5. Heard and perused the record. Mr. P.P.Chauhan, learned counsel for the petitioner has submitted that the petitioner was a regular teacher, his services could not have been terminated without holding an inquiry and associating him in that inquiry more particularly when allegation of misconduct with a female student of the school was involved. He has submitted that respondents have nowhere pleaded that petitioner was a temporary employee. The allegations against the petitioner are not of such nature which require dispensing with an inquiry under Article 311 of the Constitution. The judgment of the Supreme Court relied by the respondent in the impugned order for terminating the services of the petitioner is not applicable in the present case. Mr. R.K.Sharma, learned Senior Additional Advocate General has submitted that the action taken by the respondents is fully protected under Rule 5 of Central Civil Services (Temporary Service) Rules, 1965. He has submitted that no regular inquiry was conducted under CCS (CCA) Rules against the petitioner but at the same he has submitted that no such inquiry was required as the action was taken under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. 4 6. The petitioner has specifically pleaded in para 6 (viii) (H) that he was regular teacher working under the State of Himachal Pradesh. The respondents have not traversed in their reply the pleadings of para 6 (viii) (H) of the petition. In these circumstances, it can be safely inferred that petitioner was appointed as regular teacher. This apart, the respondents have defended their action under Rule 5 of the Civil Services (Temporary Services) Rules, 1965 with the help of judgment Avinash Nagra Vs. Navodaya Vidyalaya Samiti, (1997) 2 SCC 534. In that case the Supreme Court has observed that in disputably provisions of CCS (CCA) Rules, 1965 of the Government of India would be applicable with a view to ensure safety and security of a girl student to protect their modesty and prevent their unnecessary exposure at an enquiry in relation to the conduct of a teacher resulting in sexual harassment of the girl student etc. involving misconduct or moral turpitude, resolution prescribing special summary procedure was proposed and published by notification dated 23.12.1993, after due approval of the Executives of the respondent- Samiti. The notification postulates to dispense with regular inquiry under the Rules. The Supreme Court in that case permitted the management to issue show cause notice to the petitioner , conduct an enquiry and submit the report within a specified time after receipt of the explanation submitted by the appellant in that case and the record. The management had drawn up a report and submitted the same to the Supreme Court with the finding that appellant is guilty of moral turpitude involving exhibition of immoral sexual behaviour towards a girl student. On consideration of the report and the record, the Supreme Court after hearing the parties decided the case. 5 7. Avinash Nagra (supra) is not applicable in the facts and circumstances of the present case. It is not the case of the respondents that any notification of the nature dated 23.12.1993 mentioned in Avinash Nagra, has been issued by the respondents. The Supreme Court in Avinash Nagra had called for report during the pendency of appeal. The respondents have treated the petitioner as temporary employee without showing or establishing whether in fact petitioner was a temporary employee. In the pleadings, the respondents have not projected the case that petitioner was a temporary employee. 8. The learned counsel for the petitioner has submitted that even in case of temporary employee when allegations of misconduct are there inquiry is necessary and for this purpose, he has relied Chandra Prakash Shahi Vs. State of U.P. and others, (2000) 5 SCC 152. In that case the services of the appellant were terminated under Rule 3 of the U.P.Temporary Government Servants (Termination of Service) Rules, 1975. In para 12 of the report, it has been held that now, it is well settled that temporary government servant or probationers are as much entitled to the protection of Article 311 (2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month’s notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. 9. The Supreme Court in Chandra Prakash Shahi has further observed that termination simpliciter of a temporary government servant on the ground of unsuitability does not attract the provisions of 6 Article16, nor is the protection under Article 311 (2) of the Constitution available to a temporary government servant unless the termination involved ‘stigma’ was the dictum laid down in Commodore Commanding, Southern Naval Area Vs. V.N. Rajan (1981) 2 SCC 636. The Supreme Court has discussed the concept of ‘motive’ and ‘foundation’ in the judgment and in para 28 has held as follows:- “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 inquiry is held and it is on the basis of that inquiry 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 inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry 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’”. 10. In the present case inquiry was not conducted in order to determine the suitability of the petitioner even if it is assumed that he was governed by Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 but the inquiry was conducted to find out the truth regarding the misconduct. The impugned order was passed on the basis of the inquiry in which petitioner was not associated. This has caused prejudice to the petitioner. It was incumbent upon the respondents to associate the petitioner in the inquiry. Therefore, the impugned order dated 15.6.2001, Annexure A-1 is not sustainable. 7 11. The quashing of Annexure A-1 dated 15.6.2001 does not mean that the petitioner has been exonerated. The impugned order dated 15.6.2001 Annexure A-1 has been set-aside on the ground of procedural irregularities committed by the respondent No.2 which has caused prejudice to the petitioner. There is substance in the submission of the learned counsel for the respondents that the allegations against the petitioner are of serious nature, therefore, liberty is granted to the respondents to proceed against the petitioner in accordance with law with regard to his alleged misconduct. 12. As a result of the above discussion, the petition is allowed. The order dated 15.6.2001 Annexure A-1 is quashed with all consequential benefits w.e.f. 15.6.2001 onwards. The respondents are directed to reinstate the petitioner in service immediately. The respondents are at liberty to proceed against the petitioner regarding alleged misconduct in accordance with law. No costs. ( Kuldip Singh ), July 28 , 2009, Judge. (GR)