REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JANUARY 15, 2010 Amarjit Singh .....Appellant VERSUS State of Punjab ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. S. Malhotra, Advocate, for the appellant. Mr. Amit Chaudhary, AAG, Punjab, for the State. **** RANJIT SINGH, J. This Regular Second Appeal was allowed by this Court on 6.8.2007 and while doing so, it was observed as under:- “It is the case of the appellant that where form of order is merely camouflage for removal or dismissal, it is always open to the Court before whom the order is challenged to go behind the form and to ascertain true character of the order and on that basis, it is proved on record that since the order in question has been passed on the basis of the report of embezzlement made by the Inspector, therefore, REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 2 }: the same is illegal and against the rules. In order to fortify my views, I find support from the law laid down in Raj Mohanan Vs. The Assistant General Manager and others, 1984 (2) S.L.R. 782, the State of Bihar and others Vs. Shiva Bhikshuk Mishra, 1970 S.L.R. (863) S.C, Kanhailal Vs. District Judge and others, AIR 1983 S.C. 351 and Joginder Singh Vs. High Court of Punjab and Haryana and another, 1989 (1) S.L.R. 603. In view of the discussion made above, appeal is accepted. Judgment and decree dated 17.12.1983 passed by District Judge, Chandigarh is set-aside and that of the trial Court dated 10.2.1983 is hereby affirmed.” The said order, however, was set-aside by the Hon'ble Supreme Court on a Special Leave Petition filed by the State of Punjab on the ground that this Court has committed a serious illegality in reversing the decision of the first Appellate Court without formulating a substantial question of law, which according to the High Court, required determination. The plea by the appellant that he had already retired and that the case be decided by the Court itself instead of remanding the case back to this Court for adjudication was not accepted and accordingly the order passed by this Court, allowing the appeal was set-aside and the matter remitted back to this Court for hearing and deciding this appeal afresh in accordance with law. In this background, it would be obvious that the case has been remanded back to formulate a question of law requiring determination by this Court and then deciding the appeal afresh. REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 3 }: Despite this, the counsel for the appellant is found wanting and has not made any move to formulate a question of law, if any, that would require consideration by this Court while considering this Regular Second Appeal. This is the position, though the counsel was given time to formulate the question of law. Since the inaction on the part of counsel would not be enough to make the appellant to suffer, the Court itself would consider this aspect to see if any substantial question of law would arise in this case or not. Having considered the matter, it is felt that following substantial questions of law indeed would arise in this case:- (a) Can an innocuous order worded that the services are no longer required is in fact a stigmatic order and passed as a punitive under the garb that the service of the appellant was temporary in nature and could be dispensed with? (b) Whether the order which is punitive in nature can be passed without following the procedure prescribed under law and without adhering to the principle of natural justice, especially so in the light of the provisions of Article 311(2). The facts, in brief, giving rise to the above noted questions of law may now be noted in brief. The appellant-plaintiff filed a suit for declaration on the ground that the order dated 1.6.1977 passed by the General Manager, whereby he was dismissed from service is illegal, unjust, void and violative of Article 311(2) of the Constitution of India. He was employed as a Conductor in the Punjab Roadways, Chandigarh. REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 4 }: He claimed to be a permanent civil servant, his appointing authority being General Manager, Punjab Roadways, Chandigarh. His services were terminated on the ground that these are no longer required vide order dated 1.6.1977 without holding any enquiry. The case set up by the appellant-plaintiff is that though this order was innocuous in nature but was passed by way of punishment and, thus, went to cast a stigma on his career. It was also pleaded that while passing this order, no opportunity of hearing was afforded to the appellant. As averred in the suit, the appellant was removed from service as a result of report made by an Inspector, alleging that he was found in possession of four tickets wrongly punched with an intention to re-issue them from Amritsar, which the appellant would allege to be a false report. The suit filed by the appellant was contested by the Department. In the reply filed, the jurisdiction of the Civil Court was disputed by urging that the appellant would only approach the Labour Court under the Industrial Dispute Act. It was further urged that services of the appellant were terminated in accordance with the terms and conditions of his appointment and that the order impugned was not passed by way of punishment but was a simple order terminating the services of the appellant, being no longer required. The Trial Court, after going through the evidence decreed the suit of the plaintiff, holding that the order passed by the General Manager, Punjab Roadway, was illegal, thereby providing all the benefits of service to the appellant. The first Appellate Court, however, accepted the appeal filed by the State and reversed the finding of the Trial Court. The suit filed by the appellant was, REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 5 }: therefore, dismissed, giving rise to the present Regular Second Appeal. The primary question requiring consideration is to see if the order is a simple order, terminating the services of the appellant as no longer required or is an order which is passed by way of punishment. It is vehemently urged that the services of the appellant could be terminated without assigning any reason and the impugned order was passed in terms of the conditions contained in the appointment letter of the appellant. This contention was repelled by this Court as well as by the Trial Court by making reference to the report exhibit P-2 dated 23.5.1977, which shows that Inspector Gulzar Singh had checked the bus at Kartarpur where the appellant was a Conductor while it was on Chandigarh-Amritsar route. The appellant was found to have issued four tickets from Jalandhar to Amritsar, which were wrongly punched so that these could be used again. Accordingly, it was found to be a case of fraud. On the basis of this, it was held that the impugned order was actuated by this incident and, thus, could not be termed as an order simpliciter in nature as was being made out. Reliance in this regard was placed on four judgments namely, Raj Mohanan Vs. The Assistant General Manager and others, 1984 (2) S.L.R. 782, the State of Bihar and others Vs. Shiva Bhikshuk Mishra, 1970 S.L.R. (863) S.C, Kanhailal Vs. District Judge and others, AIR 1983 S.C. 351 and Joginder Singh Vs. High Court of Punjab and Haryana and another, 1989 (1) S.L.R. 603, by the counsel to support the view that was being taken. What is, thus, required to be seen is if this order worded REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 6 }: in a simple and straight forward manner can be termed stigmatic in any manner? The order as worded would show that the services of the appellant were terminated being no longer required, which was stated to be in accordance with his terms and conditions of temporary service. The submission made, however, is that the impugned order is stigmatic and in support, reference has been made to the judgments noted above. In Raj Mohanan's case (supra), the Court was of the view that the probationer, whose services were terminated under an innocuous order in fact was by way of punishment and the petitioner therein having been singled out without following the prescribed procedure or rules of natural justice were held to have been terminated in violation of the provisions of Articles 14 and 16 of the Constitution of India. It was further observed that the services, though were terminated under seemingly innocuous order of termination of probation, which in substance and effect was a punitive act and such punishment could be imposed only after giving him memo of charges and holding regular enquiry. In Kanhailal's case (supra), the Hon'ble Supreme Court has held that protection under Article 311 (2) is available even to temporary Government servant and no penal order could be passed against him without complying with the requirement of the Article. This was a case where services of the petitioners therein were terminated for negligence without complying with Article 311 (2) and the same was held to be void. The decision of the Allahabad High Court in this regard was reversed by the Hon'ble Supreme Court. Joginder Singh's case (supra) is again a case of termination of services of temporary employee, which was done through an innocuous order and finding it REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 7 }: to have been passed due to misconduct and inefficiency, the same was termed as punitive in nature and held to be violative of Article 311 and, thus, illegal. It can, thus, be said that it is by now fairly well settled that it is not the form of an order alone, which will be an evidence of its nature and it is open for the Courts to find out if the order indeed is innocuous one or passed by way of punishment. Where it is found that the order though couched in a simple language but in fact is a punitive one, then this is to be held as illegal if it is passed violating the procedure prescribed for passing a punitive order. In Kumari Shrilekha Vidyarthi etc. etc. Vs. State of U.P., and others, AIR 1991 Supreme Court 537, the State action even in contractual matter was held open to judicial review on the touch stone of Article 14 of the Constitution of India. Article 14 has been construed to mean that it does not envisage or permit unfairness or unreasonableness in the State action in any sphere of activities. In A.P.State Fed. Of Coop. Spinning Mills Ltd. And another vs. P.V.Swaminathan, 2001 (2) RSJ 247, termination of a contractual employment again was held to be open to judicial review. Though, the Hon'ble Supreme Court made some observations for the Court not to interfere in the order of termination of temporary employees, probationers, for even a tenure employees, but it was observed that the Court is not debarred from looking into the attendant circumstances. The relevant observations are as under:- ““The legal position is fairly well settled that an order of termination of a temporary employee or probationer or even of tenure employee, simpliciter without casting any REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 8 }: stigma may not be interfered with by court. But the court is not debarred from looking to the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed.” In this case, the Court further went on to observe that if an allegation of arbitrariness is made in assailing an order of termination, it will be open for the employer to indicate how and what was the motive of passing an order of termination. Reference here can also be made to Satyender Singh Rathore Vs. State of Haryana and other, 2003 (2) RSJ 394, where it was found as a matter of fact that employment has been brought to an end on account of misconduct without affording any opportunity to rebut the allegation levelled and hence, the order was set-aside. To know, if the order is stigmatic, it has to be seen as to what is the foundation of the order. If the reason for which the order is passed was only a motive or inducing factor, then it can not be termed as stigmatic order. The Hon'ble Supreme Court in the case of REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 9 }: Radhey Shyam Gupta Vs. U.P. State Agro Industries corporation Ltd. And another, (1999) 2 SCC 21, observed that there are two lines of cases which deal with this question. In certain cases of temporary servants and probationers, the Court has taken a view that if an exparte enquiry or report is the motive for the termination order, then the termination is not to be called punitive merely because the principles of natural justice have not been followed. The second line of cases are where the Court has held that the facts revealed in enquiry are not the motive but the foundation of the termination of services of the temporary servants or probationers and hence, punitive and, thus, the principles of natural justice would have to be followed. After dealing with all aspects in this regard and after making reference to two lines of cases decided in the field, it is finally observed:- “It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as he then was) in *Ram Narayan Das's case. It is done only with a view to decide whether he is to be retained or continued in *State of Orissa V. Ram Narayan Das, AIR 1961 SC 177 REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 10 }: service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in *Champaklal's case. The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge- memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in **Sukh Raj Bahadur's case and in ***Benjamin's case. In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case, the employer was entitled to say that he would not continue an employee against *Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854 **State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 ***Benjamiin v. Union of India, (1967) 1 LLJ 718 (SC) REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 11 }: whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.” In Parshotam Lal Dhingra Vs. Union of India, AIR 1958 SC 36, it was held that if misconduct was the motive, the order was not punitive but if it was the foundation, it was punitive. The difficulties or doubts in finding as to what was motive or foundation, though clarified in Samsher Singh Vs. State of Punjab, 1974 (2) SCC 831, were ultimately removed in case of Gujarat Steel tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha, 1980 (2) SCC 593. In this case, simple order of termination as permitted by the terms of appointment or as permitted by the rules was not held punitive even when the departmental enquiry ordered initially was stopped because the employer was not sure of establishing the guilt of the employee. It is observed that in such cases allegation against the employee merely raise a cloud on his conduct and employer was entitled to say that he would not continue an employee against whom allegations were made, the truth of which the employer was not interested to ascertain. Passing of a simple order of termination in REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 12 }: such cases is to confer benefit on the employee so that he does not suffer from any stigma, which would attach to rest of his career if a dismissal or other punitive order was passed. These are such cases where allegations of truth have not been found but these were merely taken as motive to pass the order simpliciter in nature. In Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences & Anr., 2002(1) SCC 520, the Hon'ble Supreme Court observed that:- “One of the judicially involved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely, if any one of the three factors is missing, the termination has to be upheld.” In Gujarat Steel Tubes (supra), the Court observed that:- “...... a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal. If there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 13 }: simplicitor, if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into their truth but decides merely not to continue a dubious employee. The master does not want to decide or direct a decision about the truth of the allegations. But if he conducts an enquiry only for the purpose of proving the misconduct and the employee is not heard, it is a case where the enquiry is the foundation and the termination will be bad.” In the light of above principle, it is now to be seen if in substance the order relieving the appellant in the present case can be termed as punitive in nature or it is a simple order passed without any stigma. The appellant has given evidence and produced on record the report, Ex.P2, which according to him, led to his termination. Otherwise, it is admitted case that no charge sheet was served to the appellant and no enquiry was held. Exhibit P-2 is the report which was made against the appellant by Gulzar Singh. The report has already been referred to above, which was to the effect that the tickets were found wrongly punched by the appellant. This was stated to be a case of fraud. A perusal of the file by the Trial Court reveal that there was a note on the file against the appellant on the report of Inspector that his services be discontinued. The Trial Court accordingly reached a conclusion that the order, Annexure P-1, simply terminating the services of the appellant was in fact passed on REGULAR SECOND APPEAL NO.1274 OF 1984 :{ 14 }: the basis of report, Exhibit P-2, in which the allegations of fraud were made against the appellant. It was in this background held that the impugned order was punitive and passed without holding any enquiry or giving any opportunity to the appellant. This finding of fact on the basis of the material on record could not be seriously disputed before me and only prayer made on behalf of the State counsel was that the simple order of termination has been passed as the appellant was temporary employee. It would be reasonable to hold that this order in fact is by way of punishment and, thus, can not be sustained as having been made without holding any enquiry and giving opportunity to the appellant. Mere status of the appellant, being a temporary Government employee, would not deprive him of the protection of the Constitution or the Constitutional provisions as has been held in Shiva Bhikshuk Mishra, and Joginder Singh's cases (supra). The Regular Second Appeal, thus, is allowed. The judgment of the first Appellate Court is set-aside and that of trial Court is restored. Let the decree sheet be prepared accordingly by the Registry of this Court. January 15, 2010 ( RANJIT SINGH ) khurmi JUDGE