REGULAR SECOND APPEAL NO.1516 OF 1991 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 13, 2010 State of Punjab and another .....Appellants VERSUS Harbhajan 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. None for the respondent. **** RANJIT SINGH, J. (ORAL) Since identical question of law and facts are involved in both Regular Second Appeal Nos.1516 of 1991 (State of Punjab and another Vs. Harbhajan Singh) and 1517 of 1991 (State of Punjab and another Vs. Charanjit Singh) , the same are being decided by this common order. FACTS OF R.S.A. NO.1516 OF 2005 Services of Harbhajan Singh, respondent-plaintiff, were dispensed with on 10.9.1984 in terms of the conditions contained in his appointment letter. He had filed this suit to challenge the order REGULAR SECOND APPEAL NO.1516 OF 1991 :{ 2 }: being illegal, void and malafide. Respondent-plaintiff was working as Chowkidar with District Food and Supplies Controller, Ludhiana. Respondent-plaintiff was involved in a criminal case for theft of food stocks for which he was convicted but released on probation. His plea is that his services were terminated by way of punishment and he had accordingly challenged the order being illegal, void and malafide. FACTS OF R.S.A. NO.1517 OF 2005 Like Harbhajan Singh, respondent-plaintiff Charanjit Singh in this case had also filed a suit for seeking declaration for setting-aside the order dated 10.9.1984. He was also accused of committing theft for which he was convicted and released on probation. He had also raised a plea that this was a stigmatic order and passed because of his involvement in the criminal case. Almost identical pleas in fact have been raised in this appeal and the identical question of law arises in both the appeals. Thus, both the appeals are being disposed of by this common order. The submission in both appeals is that the services of the respondent-plaintiffs could not have been terminated till they were convicted by the Magistrate. To highlight the fact that the termination was illegal, the respondent-plaintiffs had pleaded that after their termination more Chowkidars were recruited. It was further pleaded that their services were terminated without serving any charge sheet or without holding any enquiry. The State defended the suit. Plea is that the suit is not maintainable. As per reply, notice under Section 80 CPC was not served. It is stated that the services of the respondent-plaintifs were REGULAR SECOND APPEAL NO.1516 OF 1991 :{ 3 }: terminated, they being adhoc employees. The fact that they were convicted for an offence of theft and released on probation is not denied. The appellant, however, would maintain that services of the respondent-plaintiffs were purely temporary and so could be dispensed with in terms of the appointment letter and in this background, there was no need either to hold enquiry or to serve them charge sheets, as is being pleaded in the respective suits. The Trial Court framed the following issues in the case of Harbhajan Singh:- “1. Whether the plaintiff is entitled to the declaration as prayed for? OPP 2. Whether a valid notice was not served upon the defendant? OPD 3. Whether the suit of the plaintiff is not maintainable? OPD 4. Relief.” Following issues were framed by the Trial Court in the case of Charanjit Singh:- “1. Whether the order No.JA20-84/17112 dated 10.9.1984 of defendant No.2 is illegal, void, malafide, unconstitutional, without jurisdiction and against rules and principles of natural justice? OPP 2. Whether valid notice u/s 80 C.P.C was served upon the defendants? OPD 3. Whether the suit is not maintainable? OPD 4. Relief.” The suits were decreed, against which the State filed REGULAR SECOND APPEAL NO.1516 OF 1991 :{ 4 }: appeals, which were also dismissed and hence, the Second Appeals. Learned State counsel would submit that the services of the respondent-plaintiffs were not terminated as a measure of punishment. The respondent-plaintiffs being adhoc employees, their services were simply dispensed with. As per the counsel, this was in terms of the conditions contained in his appointment letter. The Appellate Court, however, found that the order is not innocuous, as was being urged. Reference is made to the evidence given by Harbans Singh, Accounts Officer, DW-1, in both the appeals, where he admitted in his cross-examination that termination of the service was due to the involvement of the respondent-plaintiffs in a criminal case. On the basis of this evidence, it was held that termination was a measure of punishment and, thus, would be stigmatic. It is accordingly observed that holding of departmental enquiry, thus, was essential and could not have been dispensed with. It appears that the Courts below have not correctly appreciated the factual position. At the time when the impugned orders were passed, the respondent-plaintiffs had not yet been convicted by the criminal Court. In this background to urge that he/they were removed from service on the ground of his involvement in a criminal case would not be a correct position. It is noticed by the Appellate Court itself that the services of the respondent-plaintiffs were terminated on 10.9.1994 while his conviction was recorded on 21.9.1985. How could then the Appellate Court observe that this order was stigmatic and is on account of conviction. Obviously, the order of termination was not on the basis of conviction. It was yet to be recorded and was recorded almost after a year of the date of REGULAR SECOND APPEAL NO.1516 OF 1991 :{ 5 }: termination. In this background, to say that the order was stigmatic and was due to the fact of involvement in a criminal case, is factually not made out. The impugned orders have been perused. There is no mention made in regard to the involvement of the respondent- plaintiffs in a criminal case. It has simply been mentioned in the impugned orders that the services of the respondent-plaintiffs as Chowkidar are dispensed with in terms of the conditions contained in the appointment letters. To say in this background that the orders are stigmatic would be doing injustice to the factual position apparent in the case. Even if it is assumed that the reason for dispensing with the services of the respondent-plaintiffs was involvement in a criminal case, still it will not be possible to say that the order was stigmatic. At the most, the aspect of involvement of the respondent- plaintiffs in a criminal case would be motive in passing the order but it was certainly not a foundation. In this regard, reference can be made to Radhey Shyam Gupta Vs. U.P. State Agro Industries corporation Ltd. And another, (1999) 2 SCC 21, wherein the Hon'ble Supreme Court 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 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, REGULAR SECOND APPEAL NO.1516 OF 1991 :{ 6 }: punitive and, thus, the principles of natural justice would have to be followed. In this case, the criminal case may have been the motive for passing the order but it is certainly not shown to be the foundation. Accordingly, the judgment under appeal can not be sustained. Substantial question of law whether the impugned order was stigmatic in nature or an innocuous one, thus, is arising. Further question of law would be to see whether the involvement of the respondent-plaintiffs in a criminal offence was the foundation or motive only? As has already been observed, that may have been the motive for passing the order but certainly not a foundation. Incidentally, it may also require notice that for terminating the service due to conviction for criminal offence, there is no requirement of holding enquiry or framing a charge, as has been construed. Therefore, the order can not be said to be stigmatic in any manner and accordingly the views taken by the first Appellate Court and the Trial Court cannot be sustained. The Regular Second Appeals are accordingly allowed. The judgments under appeal are set-aside. There shall be no order as to costs. May 13, 2010 ( RANJIT SINGH ) khurmi JUDGE