Regular Second Appeal No. 1113 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1113 of 1989 Date of decision: May 11, 2010 Nachattar 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. Gaurav Chopra, Advocate for the appellant. Ms. Ambika Luthra, AAG, Punjab for the State. RANJIT SINGH J. A short question of law has been raised by the learned counsel for the appellant to impugn the judgment passed by the Additional District Judge, Faridkot. The services of the appellant, who was a Work Charge employee, were terminated on 1.1.1979. He had accordingly challenged this order on the ground that it is illegal, void and incorrect. The submission by the counsel is that the order was punitive in nature and so could not have been passed without issuing show cause notice and without serving the charge sheet on him. The service of the appellant was statedly terminated without following any procedure. The order of termination was accordingly challenged by filing the civil suit. Regular Second Appeal No. 1113 of 1989 2 Upon being put to notice, the respondent-State resisted the suit. Respondent-State raised a preliminary objection that the suit was barred by time. The plea of territorial jurisdiction of the Court to entertain the suit was also raised. It was further pleaded that the services of the appellant were terminated in accordance with the rules applicable to the work charge employees. It was further stated that the appellant used to remain absent from work and so his services were terminated. It is pleaded that there was no requirement of issuing any show cause notice as the rules contained in Civil Services Rules were not applicable to work charge employees. Accordingly, it was urged that there was no need to hold any inquiry and the respondents were well within their rights to terminate the services of the appellant. The suit was tried on the following issues:- 1. Whether the order dated 01.01.1979 is null and void? OPP 2. Whether the suit is within time? OPP 3. Whether the plaintiff is barred by his act and conduct to file the present suit? OPD 4. Whether this court has jurisdiction to entertain and try the suit? OPP 5. Whether the suit is not maintainable? OPD 6. Whether a valid notice under Section 80 CPC has been served? OPP 7. Relief. The impugned order, dispensing with the services of the appellant was passed in 19.3.1979 and the order simply recites that Regular Second Appeal No. 1113 of 1989 3 services of the appellant were dispensed with w.e.f. 1.1.1979 in view of the recommendation made in this regard. The question to be considered is, if this order can be termed as stigmatic in any manner. The services of the appellant were dispensed with without giving any indication if these were so ordered by way of punishment. Counsel for the appellant would refer to Sudhir Sharma Vs. The Punjabi University, Patiala and another, 2005 (2) PLR 36, Jarnail Singh and others Vs. State of Punjab and others, (1986) 3 Supreme Court Cases 277 and Balbir Singh Vs. Punjab State, 1988 (3) SLR 533. In Sudhir Sharma's case (supra) it is held that services of the adhoc employee could not be terminated by way of punishment for negligence, misconduct, indiscipline or embezzlement, without complying with the rules of natural justice. In Jarnail Singh's case (supra), the order terminating the services of adhoc recruits on the ground that the post no longer required was held arbitrary on the basis that juniors were retained and regularised. In Balbir Singh's case (supra), termination of service of work charge employee by a stigmatise order held in violation of principles of natural justice was held illegal. There can not be much dispute to the proposition of law as would emerge from the above noted pronouncements but in all these cases, there was no dispute that the orders were stigmatic and it was thus held that such orders could not be passed in violation of principles of natural justice. To know if an order is stigmatic, it is 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 inducive factor, then it can not be termed as stigmatic order. The Hon'ble Supreme Court Regular Second Appeal No. 1113 of 1989 4 in the case of 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 the 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. The observations on the basis of various judgments could be gisted as under:- “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 State of Orissa vs. Ram Narayan Das 1961 (1) SCR 606. It is done only with a view to decide whether he is to be retained or continued in service. The position is not Regular Second Appeal No. 1113 of 1989 5 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 Chimanlal Shah vs. Union of India AIR 1964 SC 1854. 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 State of Punjab vs. Sukh Raj Bahadur 1968 (3) SCR 234 and in A.G.Benjamin vs.Union of India (Civil Appeal No. (341 of 1966 dated 13.12.1966) (SC). 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 vs. Gujarat Steel Tubes Mazdoor Sangh 1980 (2) SCC 593. The employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer Regular Second Appeal No. 1113 of 1989 6 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 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 Regular Second Appeal No. 1113 of 1989 7 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 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 Dalbir Singh Vs. the State of Haryana, 1999 (1) SCT 470, this Court viewed that discharge from service without any mis- conduct carries no stigma and passing of such order is within the powers conferred on the commandant. Thus, in the light of above principle, it is to be seen if the substance of the order in relieving the appellant in the present case can be termed as punitive in nature or it was only a simple order passed without any stigma. The absence of the appellant may be a motive in passing the order but it had not been made the foundation of the order and, thus, the order can not be termed as punitive. In Regular Second Appeal No. 1113 of 1989 8 view of the law laid down in Gujrat Steel Tubes' case (supra), it can be viewed that the termination was effected because the master was satisfied about the absence and of consequent desirability of terminating the services. As observed in this case, master could say that he would 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. As further observed, the master may not like to investigate and take the risk of continuing a dubious servant. Such an order is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniary cut back on his full terminal benefit is found. In such cases, misconduct is not the moving factor in passing the order and are motive, which the master after gathering some prima-facie facts does not really wish to go into the truth but decides merely not to continue with the employee. Accordingly, the impugned order can not be termed as punitive in nature or which had cast any stigma for which any inquiry was needed. Thus, no case for interference in the impugned order passed by the first Appellate Court is made out. The Regular Second Appeal is accordingly dismissed. May 11, 2010 ( RANJIT SINGH ) rts