Regular Second Appeal No. 37 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 37 of 1986 Date of decision: 19.02.2010 Punjab State ....Appellant Versus Sh. Ram Lubhaya ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: None. ***** RANJIT SINGH J. Shri Ram Lubhaya was employed as Sweeper-cum- Chowkidar in the office of Land Reclamation Officer-I, U.B.D.C., Amritsar. His services were terminated on 20.04.1981. Having failed in his appeal, he filed the civil suit praying for setting aside the order of his termination on the ground that the same was illegal, ultra vires, wrong besides some other grounds. It was also pleaded that the termination order was passed without holding any inquiry or without following the procedure given under the Punjab Civil Services (Punishment & Appeal) Rules, 1970 (hereinafter referred to as an 'Rules'). The suit was decreed by the trial Court on 25.05.1984. The State filed appeal against the same, which was also dismissed on 05.09.1984. That is how the State had filed the present Regular Regular Second Appeal No. 37 of 1986 2 Second Appeal. No substantial question of law was formulated but as can be seen from the Grounds of Appeal, plea of the appellant appears to be that the respondent-plaintiff was adhoc employee and as such his services could be terminated without holding any inquiry as the protection of provisions of Article 311 of the Constitution of India would not be available to the respondent-plaintiff. The order of termination of the respondent-plaintiff was accordingly justified. Similar plea was raised before the First Appellate Court to the effect that the respondent-plaintiff was an adhoc employee and so could be dismissed even without holding any inquiry much less inquiry under Rule 8 of the rules. The First Appellate Court noticed that the respondent-plaintiff was employed on 27.06.1978 and was dismissed on 20.04.1981. It was also noticed that there was nothing on record to suggest that he was adhoc employee. The respondent- plaintiff had been issued a show cause notice but no inquiry officer was appointed. No witnesses were examined and the penalty of removal was imposed. The file produced before the Court was perused by the First Appellate Court which found that the order had been scored off from the file where show cause notice was issued under Rule 8 of the rules with the specific allegation made that the respondent-plaintiff entered the office of Divisional Office of Land Reclamation Office on 3.11.1980 in drunken condition and abused and called bad names to all the officials/officers. The respondent-plaintiff was alleged to have misbehaved with another peon Kali Dass from whom he snatched some money also. Accordingly, the order of removal was noticed to Regular Second Appeal No. 37 of 1986 3 have been made with immediate effect, keeping in view gravity of the allegations made against the respondent-plaintiff. On this basis, it was observed by the First Appellate Court that the removal of the respondent-plaintiff from service was not on the ground that the services were no longer required but as punitive measure. Legal position is by now fairly settled that order of termination of a temporary employee or probationer of even a tenure employee, simpliciter without casting any stigma may not be interfered with by the Court. But at the same time, it is also settled that the courts are 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 reasons really was the motive for the order of termination or formed the foundation of 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. However, if it is found that the so called reason was the real foundation for passing the order of termination, then obviously such an order would be held to be penal in nature and must be open to be interfered with. Reference in this regard can be made to A.P. State Fed. of Coop. Spinning Mills Ltd. and another versus P.V. Swaminathan, 2001 (2) RSJ 247. Here only, reference can be made to Pavanendra Narayan Verma versus Sanjay Gandhi PGI of Medical Sciences & Anr., 2002 (1) SCC 520, where the Hon'ble Supreme Court has observed that one of the judicially involved tests to determine whether in substance order of termination is punitive is to see whether prior to termination there was (a) a full scale formal enquiry (b) allegations involving moral turpitude or Regular Second Appeal No. 37 of 1986 4 misconduct (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. In Gujarat Steel Tubes Ltd. versus Gujarat Steel Tubes Mazdoor Sabha, 1980 (2) SCC 593, it was observed that the termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the services of delinquent service, is a dismissal. Adjudged in the light of these parameters, the conclusion will be irresistible that it was not a simple case of terminating the services of the respondent-plaintiff but this action was taken against him as a punitive measure. Such an order could not have been made as per the law quoted above, unless the procedure for award of penalty was followed. Thus, there was a complete violation of principle of natural justice. The trial Court as well as the First Appellate has thus rightly exercised the jurisdiction to set aside this order. There is no substantial question, which arises in this case. The appeal is accordingly dismissed. February 19, 2010 ( RANJIT SINGH ) rts JUDGE