1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1219/2001 Decided on: 14th May, 2009 H.R.T.C & ors …..Petitioners. VERSUS Gopal Krishan …..Respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr.Justice Surjit Singh, Judge. Whether approved for reporting?1 yes For the Petitioners : Mr Adarsh Sharma, Advocate. For Respondent : Mrs. Ranjana Parmar, Advocate. Per Surjit Singh, Judge (Oral) This petition, under articles 226 and 227 of the Constitution of India, has been filed by the Himachal Road Transport Corporation and two of its functionaries, for judicial review of order dated 17th September, 2001, passed by H.P. State Administrative Tribunal (now defunct) in O.A. No. 37/1992, filed by respondent Gopal Krishan. 2. Relevant facts may be summed up thus. Respondent, Gopal Krishan was appointed as conductor in Himachal Road Transport Corporation initially in the year 1976 on 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 daily wage basis. His services were found unsatisfactory and he was, therefore, removed. Somehow or the other, he was reappointed in the year 1984; this time also on daily wage basis. His services were regularized in April, 1985. He committed some acts of dereliction of duty, for which he was charged. Ultimately, he was removed from service. He filed an appeal against the order of his removal from service to the higher departmental authority. Though the said authority upheld his removal, yet taking a lenient view, ordered that he be re-employed on daily wage basis. He was then re-employed sometime in the year 1989 and then his services were regularized. In may, 1990, he was discharged, while on probation. He challenged the order of his discharge by filing OA No. 37/1992 before the State Administrative Tribunal. It was alleged that even though the wording of the order of discharge was innocuous and it indicated that it was an order of discharge simplicitor, in fact the respondent had been punished for the alleged act of his having not issued tickets to certain passengers and, therefore, the Inquiry was required to be conducted before he could be thrown out of service. Respondent alleged that the order was stigmatic and in case record of the petitioner’s was examined that would substantiate his allegation. 3. Learned Tribunal allowed the Original application and directed the reinstatement of the respondent. From the reading of the order of the learned Tribunal, it appears that the record was requisitioned. Tribunal went through that record and found that the respondent had been penalized for an alleged act of embezzlement 3 of bus fare, collected by him from 27 passengers, for which he did not issue tickets. 4. H.R.T.C and two of its functionaries have challenged the order of Tribunal. They allege that the order is against the well settled proposition of law that an employee, who is not suitable and fit for service, can be removed during probation, without assigning any reason or without conducting any inquiry. 5. We have heard the learned counsel for the parties and perused the record. Facts, which we have noticed here-in-above, particularly those pertaining to the earlier two removals of the respondents, are not in dispute. That means, respondent does not deny that in the past too he had been removed twice, because of his work and conduct having not been found satisfactory. As a matter of fact, when respondent had been found indulging in dishonest acts of misappropriating the amount of fare, collected from passengers earlier also, he should not have been reemployed again and again. 6. We have been taken through the impugned order of discharge. The order is plain and simple that the services of the respondent are no longer required. Admittedly, this order was passed when the respondent was still on probation. The original record pertaining to the passing of this impugned order of discharge has also been shown to us. Undoubtedly, the punitive officer of the H.R.T.C observed in his order, recorded in the file that the respondent had been found to have collected fare from 27 passengers and having not issued tickets to those passengers 4 during surprise checking, but the motive for making this observation was not to indict the respondent for this act. This was made in the course of judging his suitability for the post of conductor. 7. Hon’ble Supreme Court in Abhijit Gupta Vs. S.N.B. National Centre, Basic Sciences & others (2006) 4 SCC 469, while dealing with a case in which the services of an employee had been dispensed with during the period of probation, by means of a communication which made references to certain earlier letters written to the employee, in which he was condemned as a duffer, dishonest and indulging in corruption, the Hon’ble Supreme Court observed that the order could not be said to be stigmatic even if it made a reference to some earlier letters in which the aforesaid words had been used against the employee, because the motive behind the order of discharge was not to indict the employee, but to get rid off an employee who was not suitable and fit for the job. Similar view has been taken by a Division Bench of this court, comprising of both of us in High Court of Himachal Pradesh Vs. Ms. Veerta Verma and another (LPA No. 132/2008) decided on 3rd march, 2009. The case pertained to a Judicial Officer who had been discharged during probation because the High Court came to know that while working as an Advocate and also as Oath Commissioner before joining service, she had committed an act of forgery, which rendered her unsuitable for the post. In view of the above stated position, we are of the considered view that the impugned order passed by the State Administrative Tribunal is not legally sustainable. Hence, the writ 5 petition is allowed. The impugned order dated 17th September, 2001 passed by H.P. State Administrative Tribunal in OA No. 37/1992, is set aside and consequently the Original Application filed by the respondent is dismissed. ( R.B. Misra ), Judge. ( Surjit Singh ), Judge. 14th May, 209(sl)