Regular Second Appeal No.2443 of 1986 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: March 16, 2010 The Punjab State & another .....Appellant VERSUS Nirmal Singh ....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: Ms.Ambika Luthra, AAG, Punjab, for the appellants. Mr.Sukhbir Singh, Advocate, for the respondent. **** RANJIT SINGH, J. Being aggrieved against the order passed by the Additional District Judge, setting-aside the order of termination passed against respondent-Nirmal Singh, a Driver in the Punjab Roadways, the State has filed the present Regular Second Appeal. The first Appellate Court had found the order of termination to be bad on the ground that the same was punitive in nature and was passed without holding any regular enquiry. The plea Regular Second Appeal No.2443 of 1986 (O&M) :{ 2 }: of the respondent-plaintiff that the order is stigmatic and so could not have been passed without following the principles of natural justice was accordingly upheld and the order of termination set-aside. The facts, in brief, are that respondent-plaintiff Nirmal Singh was working as a Driver in the Punjab Roadways, when his services were terminated on 24.12.1982. He had accordingly filed a civil suit by alleging that the order terminating his services was without jurisdiction as it was on account of alleged absence from duty w.e.f 16.12.1982 and, thus, the termination was on account of misconduct but was effected without holding any enquiry. As per the averments made in the plaint, the respondent- plaintiff was a temporary employee and had driven a bus from Amritsar to Dera Baba Nanak on 15.12.1982. It is stated by the respondent-plaintiff that he was not feeling well and requested for leave. The official concerned promised to relieve him on his return on 16.12.1982. The respondent-plaintiff claimed that he could not return to Amritsar due to high fever and remained under treatment for 7 days at Dera Baba Nanak. On return, he was not allowed to join duty and the impugned order was passed. The respondent-plaintiff accordingly filed this suit seeking declaration that his termination order was illegal and he would continue to be in service. In the written statement filed by the defendants, it is conceded that the respondent-plaintiff was removed from the service vide order dated 24.12.1982, which is termed as legal and valid. It is pointed out that the respondent-plaintiff by absenting showed that his work and conduct was not satisfactory and accordingly his services were innocuously dispensed with without casting any stigma as he Regular Second Appeal No.2443 of 1986 (O&M) :{ 3 }: was purely a temporary employee. On the basis of pleadings, the suit was tried on the following issues:- “1. Whether order dated 24.12.82 terminating the services of the plaintiff is illegal and void, if so its effect? OPP 2. Relief.” The Trial Court dismissed the suit, against which the respondent-plaintiff filed an appeal, which was allowed by the first Appellate Court on 20.2.1986. By making reference to the contents of the order passed, it was pleaded on behalf of the respondent-plaintiff that the order was stigmatic and, thus, could not have been made without holding enquiry. Plea is that the principles of natural justice stood violated. Though, some reference is made to the absence from duty by the respondent-plaintiff but ultimately the order of termination reads as under:- “During his short stay in service, he was proved to be unwilling worker. In view of the terms and conditions of the appointment order, his services are no longer required w.e.f. 16.12.1982 from the date of his absence from duty.” No doubt, the earlier part of this order also contained the following recitals:- “Shri Nirmal Singh, Driver No.R.59 was on duty with vehicle No.6517 on Amritsar-Dera Baba Route on 15.12.82 and 16.12.82. He was for the night at Dera Baba Nanak on 15.12.82 and was to pick up 7.40 A.M. time from Dera Baba Nanak to Amritsar. He willfully absented himself from duty and did not pick up his time on Regular Second Appeal No.2443 of 1986 (O&M) :{ 4 }: 16.12.82. The duty section Amritsar on receipt of information about his willful absence sent another Driver, Shri Shangara Singh Driver No.51 to Dera Bana Nanak for bringing back the bus from Dera Baba Nanak to Amritsar. A preliminary enquiry was conducted and it has been proved beyond any doubt that Shri Nirmal Singh Dr.No.59 willfully absented himself from duty and did not pick up the time of 7.40 A.M. from Dera Baba Nanak. Shri Nirmal Singh Driver No.R-59 was appointed on purely temporary and adhoc basis as Driver vide Endst.No.3932- 36/DD dated 5.7.1982 w.e.f 1.7.82. It was laid down in the appointment orders that his probation period will be for two years.” It is, thus, to be seen whether the above order of termination can be termed as stigmatic in nature or one which was innocuous order simply passed to terminate the services in terms of the conditions of service without casting any stigma. State counsel would submit that the impugned order of termination can not be termed as stigmatic and was a simple order of dispensing with the services of the respondent-plaintiff, who was only a temporary employee. The absence from duty is just mentioned to highlight that the respondent-plaintiff being a Driver had not been responsible enough to perform his duties and being temporary on probation was found to be unwilling worker and, thus, his services dispensed with as longer required. On the other hand, counsel appearing for the respondent-plaintiff would say that the absence is the main cause for termination and which has been found as a Regular Second Appeal No.2443 of 1986 (O&M) :{ 5 }: reason to dispense with the services of the respondent-plaintiff and, thus, the order clearly is punitive in nature and stigmatic and hence, could have been passed only after holding enquiry. In support of his submission, the counsel has placed reliance on State of Punjab Vs. Parkash Singh, 1975 (2) SLR 85. The ratio of law that will emerge from the case of Parkash Singh (supra) is only to the effect that if an order terminating the service of a temporary servant or a probationer is by way of punishment, then it will attract Article 311 of the Constitution. It is further observed that the form of order is not conclusive and it is the substance of the matter that has to be looked into and further that whether or not an order of termination is by way of punishment would depend on the facts and circumstances of each case. The above legal position would not be in much dispute. What is required to be seen, as per Parkash Singh's case (supra), is whether the order is by way of punishment or not and that what, in the substance, is the matter and also the facts and circumstances of each case. In view of the varying stands taken by the parties, following substantial question of law would arise in this case:- “Whether the impugned order dispensing with the services of the respondent-plaintiff is stigmatic in nature and a punitive one and, thus, could not have been passed without holding any enquiry or without following the principles of natural justice? A perusal of the contents of the order reproduced above would show that after making reference to the background, it is Regular Second Appeal No.2443 of 1986 (O&M) :{ 6 }: simply stated that the services of the respondent-plaintiff are no longer required in view of the terms and conditions of his appointment. This order does not make any mention that it was being passed by way of punishment or can not be read to mean that it was passed as punishment. Apparently, there is no stigma attached and so this order can not also to term as stigmatic. Reference here may be made to the case of A.P.State Fed. Of Coop. Sinning Mills Ltd. and another Vs. P.V.Swaminathan, 2001 (2) RSJ 247, where the Court has observed 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 the order of termination. The counsel for the respondent-plaintiff would refer to the complete order to brand the same as stigmatic. What is, thus, required to be seen is as to what was the foundation of this order. If the absence was the foundation of this order, then it may be termed as stigmatic but if the reason for which this order was passed was only a motive or a inducing factor, then it may not be open to be termed as stigmatic. The Hon'ble Supreme Court in Radhey Shyam Gupta Vs. U.P. State Agro Industries corporation Ltd. And another, (1999) 2 SCC 21, has clearly 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 Regular Second Appeal No.2443 of 1986 (O&M) :{ 7 }: of cases are those 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 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 *State of Orissa Vs. Ram Narayan Das, AIR 1961 SC 177 **Champaklal Chimanlal Shah vs. Union of India, AIR 1964 SC 1854 Regular Second Appeal No.2443 of 1986 (O&M) :{ 8 }: 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 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, ***State of Punjab Vs. Sukh Raj Bahadur, AIR 1968 SC 1089 ****Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593 Regular Second Appeal No.2443 of 1986 (O&M) :{ 9 }: and were merely the motive.” In the light of principles as settled in large number of cases noted above, it can not be said that misconduct of absence in this case was the foundation of the impugned order. The impugned order simply dispensed with the services of the respondent-plaintiff without making it stigmatic in any manner. Even if a preliminary enquiry was held, as is noted in the order, it will only show that it was merely a motive for passing the order and not the foundation. The reason why these are motives is assessment was not made with the object of finding out any misconduct. It was only done with a view to decide whether he is fit to be retained or continued in service or not. As already held in Champaklal Chimanlal Shah vs. Union of India, AIR 1964 SC 1854, the position would not be different even if preliminary enquiry was held because that may have been held to find out if there was prima-facie evidence or material to initiate regular departmental enquiry. The Court, as already noticed above, has even gone to the extent of holding that in a case where a regular departmental enquiry is started, a charge memo is issued, reply obtained and enquiry officer appointed, even then the enquiry can be dropped and simple notice of termination made and the same can not be said punitive because Enquiry Officer had not recorded evidence nor given any finding. 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) Regular Second Appeal No.2443 of 1986 (O&M) :{ 10 }: 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 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. As noticed, the employer in such cases by opting to pass simple order of termination as permitted by terms of appointment or as permitted by Rules would be conferring a benefit on the employee by passing a simple order of termination so that the employee does not suffer any stigma, which would attach to the rest of his career if 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. It can, thus, be observed that the decision to terminate the services of temporary servant or one on probation on the basis of entry or on the basis of assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. To explain how they are motive, it is Regular Second Appeal No.2443 of 1986 (O&M) :{ 11 }: stated that the assessment is not done with the object finding out any misconduct on the part of the officer.(See State of Orissa Vs. Ram Narayan Das, AIR 1961 Supreme Court 177). The assessment is done with a view to decide whether a person is to be retained or is to be dis-continued in service. 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.2443 of 1986 (O&M) :{ 12 }: 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 misconduct carries no stigma and passing of such order is within the powers conferred on the commandant. In view of the above settled position of law, the impugned order is clearly an order simply dispensing with the services of the respondent-plaintiff without making it stigmatic in any manner. It was certainly not passed by way of punishment. The holding of preliminary enquiry and the absence as such, was only a motive and not the foundation of the order. It can also not be ignored that the respondent-plaintiff was a Driver and had not driven back the bus and, thus, not only causing inconvenience to the passengers but the appellants had to send another Driver to bring back the bus from outstation. All these facts were the motive to dispense with the services of the respondent-plaintiff and were not the foundation. Regular Second Appeal No.2443 of 1986 (O&M) :{ 13 }: Respondent-plaintiff was temporary employee and on probation. The reasons for which the services of respondent-plaintiff were dispensed with were simply a motive and not the foundation of the order. The first Appellate Court, in my view, failed to appreciate this question of law in right perspective in the light of number of judgments as referred to above. The impugned judgment, therefore, can not be sustained and is set-aside. The Regular Second Appeal is allowed and as a consequence thereof, the suit filed by the respondent-plaintiff shall stand dismissed. March 16, 2010 ( RANJIT SINGH ) khurmi JUDGE