A JAi SINGH

UNION OF INDIA AND ORS.

AUGUST 18. 2006

[ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]

Service law:

Termination-Propriety of-Daily wage constables on ad hoc basis in C auxiliary battalion-Report of misconduct of some constables-Decision of disbandment of the auxiliary batta/ion-Te1mination of their services-Jn departmental representation and appeal, termination was stated to be on account of disbandment of battalion and they not having been found suitable for absorption in regular service due to report of misconduct-Dismissal of D their Writ Petition by High Court-On appeal, held: Termination wasjustifiedlt was a simple order of termination as permitted by the terms of employment and the rules---Their misconduct was only a motive and not foundation of termination.

Misconduct--Whether motive or foundation for termination-Held: It is E to be a4judged in the factual background of each case.

Appellants were recruited as "Daily Wage Constables" on ad-hoc basis by respondent No. 3. They were posted in an auxiliary battalion. A decision was taken by the respondents to disband the said battalion and to install a permanent battalion in its place. Appellants along with others went on a general F strike. Such recruits were considered for being posted in permanent battalion.

The services of the appellants were terminated on the ground that their services were no longer required due to disbandment of the unit The conduct of appellants had been shown in Certificate of service as 'unsatisfactory'. Their representations against termination were rejected observing that their G services were no longer required after the disbandment of the battalion and they were not found suitable for absorption on regular basis due to their misconduct and their attitude. Their departmental appeal was also rejected.

Their Writ Petitions were also dismissed by the High Court. Hence the present appeals.

H 734

JAi SINGH v. U.0.1. [PASAYAT, J.] 735

Dismissing the appeals, the Court A '

HELD: 1. The order of termination cannot be faulted in the background of the facts that the conduct for which the appellants were not found suitable for regularization cannot be said to be becoming of members of a disciplined force; that it was a simple order of termination as permitted by the terms of appointment and/or by the Rules; and that the indiscipline to which reference B was made to find them unsuitable was not the foundation of the termination order, but at the most the motive for it.1737-B-E]

2. In what situation the allegation of misconduct will be the motive and in what cases it will be foundation for termination of service has to be adjudged C in the factual background of each case. 1738-A-B]

Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr., [1992] 2 SCC 21; Samsher Singh v. State of Punjab and Anr., [1974] 2 SCC 831; Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Mazdoor Sabha and Ors., [1980] 2 SCC 593; A.G. Benjamin v. Union of India, (1967) D 1 LLJ 718; State of Punjab v. Sukh Raj Bahadur, AIR (1968) SC 1089; Dhananjay v. Chief Executive Officer, Zilla Parishad, Jalna, 12003] 2 SCC 386; Mathew P. Thomas v. Kera/a State Civil Supply Corporation Limited and Ors., [2003] 3 SCC 263; Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, [ 1999] 3 SCC 60; Pavanenda Narayan Verma v. Sanjay Gandhi PG! of Medical Sciences, [20021 l SCC E 520 and State of Haryana and Anr. v. Satyender Singh Rathore, [2005] 7 SCC 518, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 510 of 2006.

From the Judgment and Order dated 9.12.2004 of the High Court of Delhi F at New Delhi in W.P. (Civil) No. 4794/1995.

With Civil Appeal Nos. 512/2006, 513/2006, 511/2006 and 514/2006.

V. Sivasubramanian, Yudhveer Yadav and J.M. Nanavati Associaties (N.P.) for the Appellant.

Indra Sawhney, Kuna! Verma and Sushma Suri for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. These appeals involve identical questions and, H

A therefore, are disposed of by this common judgment. Writ Petitions filed by the Appellants were dismissed by a Division Bench of the Delhi High Court holding that termination of their services suffered from no infirmity.

Civil appeal No. 510 of 2006 relates to writ petition no. 4794 of 1995 while other appeals relate to other writ petitions which were disposed of B following the view expressed in the common judgment.

Factual background in a nutshell is as follows:

The appellants were recruited by the respondent No.3 as 'Daily Wage Constables" and they were posted in an auxiliary battalion namely 124 Auxiliary C Battalion. While the appellants were thus serving on ad-hoc basis, a decision was taken by the respondents to disband the said Battalion and to install a permanent battalion in its place. At that stage the appellants along with others went on a general strike in Moradabad. Subsequently, they withdrew their strike. Cases of all the Daily Wage Constables including that of the D appellants was considered for their regularization and for placing them in a permanent Battalion. The services of the appellants were, however, terminated and similar certificates of service were issued to all the appellants. As against Clause No. I 0 of the said certificate of service giving reason for termination, it was stated that since the services were no longer required due to disbandment of the unit, the services of the appellants were being terminated. Clause E NO-.·. 12 of the said certificate speaks of the conduct as against which three heads were provide as good, satisfactory and unsatisfactory. The appellants conduct had been shown in the said column as "unsatisfactory".

Being aggrieved by the said orders of termination, the appellants submitted representations, which were considered by the Deputy Inspector (General) of Police, CRPF. By a communication dated 5th April, 1995, representations filed by the appellants were disposed of. In the said order it was stated that the appellants were engaged as auxiliary constable with CRPF purely on ad-hoc basis on daily wages and that they were not found suitable for absorption on regular basis in CRPF on disbandment of Auxiliary Battalion G due to misconduct and attitude as reported by the Commandant of the 124

Auxiliary Battalion.

For the aforesaid reasons, the said representations were found to be devoid of merit and were rejected.

H Being aggrieved by the same an appeal was also preferred which also

came to be disposed of by order dated 4th June, 1994. This order states that A the appellants were engaged in 124 Auxiliary Battalion CRPF on daily wage basis and services of such persons could be terminated at any time without assigning any reason. It was observed that Auxiliary Battalion stood disbanded on 3 !st March, 1994 and only those constables who were fit in all respects were engaged and as the appellants did not fall in the said category, their B services were terminated. Consequently, their appeals were rejected.

The appellants preferred three writ petitions before the High Court challenging the orders and actions aforestated of the respondents.

The High Court on consideration of the r:val submissions held that conduct for which the appellants were not found suitable for regularization C cannot by any stretch of imagination be said to be becoming of members of a disciplined force. Accordingly, the writ petition was dismissed. It was held that the act of the respondents before it finding out the suitability of the appellants did not amount to imposition of any punishment and, therefore, no enquiry was required to be initiated. The writ petitioners were at the relevant D point of time members of the CRPF, a disciplined force and higher degree of discipline was called for. The employer passed a simple order of termination as permitted by the terms of appointment and/or permitted by the rules. The indiscipline to which reference was made to find the appellants unsuitable was not the foundation of the order of termination, but at the most the motive for it.

As noted above, the writ petitions were dismissed.

Learned counsel for the appellants. submitted that the termination simpliciter was a camouflage. The alleged indiscipline was the foundation for the termination for the termination and not the motive as noted by the High F Court. There was no material to describe the appellants as the ring leaders who allegedly instigated the other ad-hoc Constables of the erstwhile 124 Auxiliary Battalion. There was no full-fledged investigation in this regard. It appears that preliminary enquiry was conducted by a higher ranked officer of the post. According to learned counsel for the respondents the authorities G were satlsfied that the unwarranted act the appellant rendered them unfit for employment in an organization whith demands forbearance, endurance and high order of discipline to serve in the most hostile conditions. The appellants were not recruited in the force as regular cadets and were, in fact, daily wage cadets. It was pointed out that in view of the unsatisfactory conduct they H

A were not considered for absorption.

In what situation the allegation of misconduct will be the motive and in what cases they will be foundation has to be adjudged in the factual background of each case. The issue has been examined in several decisions including several Constitution Bench judgments and a judgment of 7-judges.

B An elaborate analysis of the various decisions was made by this Court in Radhey Shyam Gupta v. UP. State Agro Industries Corpn. ltd. and Anr., (1999] 2 SCC 21. The matter was examined elaborately by 7-Judges in Samsher Singh v. State of Punjab and Anr., [ 1974] 2 SCC 831. In the said case it was noted in paragraphs 79 and 80 as follows: c

"79. The Enquiry Officer nominated by the Director of Vigilance recorded the statements of the witnesses behind the back of the appellant. The enquiry was to ascertain the truth of allegations of misconduct. Neither the report nor the statements recorded by the Enquiry Officer reached the appellant. The Enquiry Officer gave his findings on allegations of misconduct. The High Court accepted the report of the Enquiry Officer and wrote to the Government on June 25, 1969 that in the light of the report the appellant was not a suitable perrnn to be retained in service. The order of termination was because of the recommendations in the report.

80. The order of termination of the services of Jshwar Chand Agarwal is clearly by way of punishment in the facts and circumstances of the case. The High Court not only denied !shwar Chand Agarwal the protection under Article 311 but also denied itself the dignified control over the subordinate judiciary. The form of the order is n?t decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the cas~ of lshwar Chand Agarwal. The order of termination is illegal and must be set aside."

In Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Mazdoor Sabha and Ors., [ 1980] 2 sec 593 it \\aS observed as follows:

H "53: Masters and servants cannot be permitted to play hide and seek

JAi SINGH v. U.0.1. [PASA YAT, J.] 739

with the law of dismissals and the plain and proper criteria are not to A be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus, B scrutinized, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, 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, even ifhe had the right in law to terminate with an innocent C order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the fmmal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if D full benefits as on simple termination, are given and non-injurious terminology is used.

54. On the contrary, even 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 E with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found: For, in fact, misconduct hi not then the moving factor in the discharge. We need not chase other hypothetical F situations here."

In A.G. Benjamin v. Union of India, (1967) I LLJ 718 (SC) the factual position was as follows:

"A charge memo was issued, explanation was received and an enquiry G officer was also appointed but before the enquiry could be completed, the proceedings were dropped stating that "departmental proceedings will take a much longer time and we are not sure whether after going through all the formalities, we will be able to deal with the accused in the way he deserves."

A In that case, order of termination was held not to be punitive. The ratio was adopted in State of Punjab v. Sukh Raj Bahadur. AIR (1968) SC I 089 and it was concluded as follows:

"The departmental enquiry did not proceed beyond the stage of submission ofa charge sheet followed by the respondent's explanation B thereto. The enquiry was not proceeded with; there were no sittings of any enquiry officer, no evidence recorded and no conclusion arrived at on the equity."

The question whether termination of service is simpliciter or punitive has been examined in several other cases e.g. Dhananjay v. Chief Executive C Officer, Zilla Parishad, Jalna, (2003] 2 SCC 386 and Mathew P. Thomas v.

Kera/a State Civil Supply Corporation Limited and Ors., (2003] 3 SCC 263.

An order oftem1ination simpliciter passed during the period of probation has been generating undying debate. The recent two decisions of this Court in Dipti Prakash Bannerjee v. Satyendra Nath Bose National Centre for Basic D Sciences, Calcutta, [1999] 3 SCC 60 and Pavanendra Narayan Verma v.

Sanjay Gandhi PG/ of Medical Sciences, (2002] I SCC 520 after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period of probation. The learned counsel on either side referred E to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Dipti Prakash Banerjee

(supra) after referring to various decisions it was indicated as to when a simple order of termination is to be treated as "founded" on the allegations F of misconduct and when complaints could be only as a motive for passing such a simple order of termination. In para 21 of the said judgment a distinction is explained thus:

"If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position -

ifthe employer did not want to enquire into the truth of the allegations A because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and no< the foundation and the simple order of termination would be valid. From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts B and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the C order of termination simpliciter or on motive on the ground of unsuitability to continue in service."

These aspects were highlighted recently in State of Haryana and Anr.

v. Satyender Singh Rathore, [2005] 7 SCC 518.

In the background of facts as noticed by the High Court the order of termination cannot be faulted. The High Court had rightly declined to interfere.

We find no reason to take a different view. The appeals are accordingly dismissed.

K.K.T.

Appeals dismissed.