Case: Delhi Transport Undertaking Vs. Balbir Saran Goel

camouflage for inflicting punishment for breach of Standing Order 17 inasmuch as the respondent had approached the High Court under Art. 226 of the Constitution without exhausting the departmental remedies. The High Court relied on the observation in S. R. Tewari v. District Board Agra, (1964) 3 SCR 55 = (AIR 1964 SC 1680 ), that the form of the order under which the employment of a servant was determined was not conclusive of the true nature of the order. The form might be merely to camouflage an order of dismissal for misconduct and it was always open to the court before which the order was challenged to go behind the form and ascertain the true character of the order. In that case it was held that the employment was terminated by giving a notice in accordance with the rules and it was not a case of dismissal. 8. The learned Attorney-General for the appellant has sought to distinguish cases which fall under Art 311 and those which are governed by statutory provisions or rules containing provisions analogous to Art. 311. According to his submission the concept of punishment is not relevant when the employer chooses to terminate the employment of an employee in accordance with the conditions of service. All that has to be seen is whether the order made by him is in conformity with the statutory powers. He has further submitted that where the master chooses to follow the mode of terminating the services prescribed by Regulation 9 (b) no stigma attaches to such termination and no question of the employee having been punished can arise nor can it be examined in such a case whether the order made was a mere camouflage or cloak for dismissing an employee by way of punishment for misconduct. It has further been emphasised that what has to be seen is the situation obtaining on the date the order was made and no notice should or ought to be taken of any subsequent facts emerging out of correspondence or pleadings in a Court of law in reply to the allegations in the plaint of male fide and the like. 9. It does not appear necessary to refer to numerous decisions which have been given by this Court in arising under Article 311 of the Constitution on the points debated before us by counsel for both sides. In State of Punjab v. Shri Sukhraj Bahadur, (1968) 3 SCR 234 at p. 244 = (AIR 1968 SC 1089 at p. 1094) most of these cases have been discussed. By a conspectus of these cases, it was stated, the following propositions clearly emerge :"1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immortal. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form preceded by an inquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Article 311, i e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article". In that case the departmental enquiry did not proceed beyond the stage of submission of charge-sheet followed by the respondents explanation thereto. The enquiry was not proceeded with, there were no sittings of any enquiry Officer, no evidence was recorded and no conclusions arrived at on the enquiry. It was, therefore held that the services had been terminated simpliciter under the rules of employment and Article 311 was not attracted. In the present case even if it is assumed that the law is the same as would be applicable to a case governed by Article 311 it is difficult to say on the principles laid down in the above case that the services of the respondent were not mercy terminated in accordance with Regulation 9 (b) which governed the conditions of his employment. It may be that the motive for termination of his services was the breach of Standing Order 17, i e., of filing a writ petition in the High Court against the demotion without exhausting departmental remedies but the question of motive is immaterial. No charge-sheet was preferred under Regulation 15 nor was enquiry held in accordance therewith before the order under Regulation 9 (b) was made. It may be that if the respondent had successfully pleaded and proved male fides on the part of the authority terminating his services the impugned order could be legitimately challenged but no foundation was laid in that behalf in the plaint nor was the question of male fides investigated by the Courts below. 10. As regards the punishment having been inflicted for misconduct the order being a mere camouflage we are unable to endorse the view that any such question could arise in the present case. Regulation 9 (b) clearly empowered the authorities to terminate the services after giving one months notice or pay in lieu of notice. The order was unequivocally made in terms of that Regulation. Even if the employers of the respondent thought that he was a cantankerous person and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9 (b) and it was not necessary to dismiss him by way of punishment for misconduct.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In that case the departmental enquiry did not proceed beyond the stage of submission of charge-sheet followed by the respondents explanation thereto. The enquiry was not proceeded with, there were no sittings of any enquiry Officer, no evidence was recorded and no conclusions arrived at on the enquiry. It was, therefore held that the services had been terminated simpliciter under the rules of employment and Article 311 was not attracted. In the present case even if it is assumed that the law is the same as would be applicable to a case governed by Article 311 it is difficult to say on the principles laid down in the above case that the services of the respondent were not mercy terminated in accordance with Regulation 9 (b) which governed the conditions of his employment. It may be that the motive for termination of his services was the breach of Standing Order 17, i e., of filing a writ petition in the High Court against the demotion without exhausting departmental remedies but the question of motive is immaterial. No charge-sheet was preferred under Regulation 15 nor was enquiry held in accordance therewith before the order under Regulation 9 (b) was made. It may be that if the respondent had successfully pleaded and proved male fides on the part of the authority terminating his services the impugned order could be legitimately challenged but no foundation was laid in that behalf in the plaint nor was the question of male fides investigated by the Courts below10. As regards the punishment having been inflicted for misconduct the order being a mere camouflage we are unable to endorse the view that any such question could arise in the present case. Regulation 9 (b) clearly empowered the authorities to terminate the services after giving one months notice or pay in lieu of notice. The order was unequivocally made in terms of that Regulation. Even if the employers of the respondent thought that he was a cantankerous person and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9 (b) and it was not necessary to dismiss him by way of punishment for misconduct.