Government of NCT of Delhi v. Dalbir Singh

employer an opportunity to observe the work and conduct, integrity, efficiency etc. of an employee in order to judge his suitability to the job, before permanently absorbing him in the services. Rule 5 (1) of CCS(Temporary Services) Rules, 1965 postulates that the services of a temporary Government servant or a probationer, can be terminated by the Appointing Authority forthwith and the Government servant on termination shall be entitled to claim sum for the period of notice. Apparently, the holding of inquiry has not been mandated though the termination of service may be preceded by an inquiry by the employer, only to ascertain whether the Government servant should be retained in service or not. In order to attract the provisions of Article 311 (2) of the Constitution of India, it needs to be seen whether the „misconduct‟ or „negligence‟ was a mere „motive‟ for the order of reversion or termination or whether it was the very „foundation‟ of the said order. The form of the order may not be conclusive of its true nature and the Court can tear the veil behind a termination order, which is innocuous and discharge simpliciter, to examine the entirety of the circumstances preceding or attended to the order of termination. Termination simpliciter does not attract the provisions of Article 311 of the Constitution of India unless the termination involves „stigma‟.

10. The important principles, which are deducible on the concept of „motive‟ and „foundation‟ which have been repeatedly highlighted also stand reiterated in paragraphs 26 and 27 in Chandra Prakash Shahi v. State of U.P. & Ors. (supra) and may be beneficially reproduced:

11. The question whether an order terminating the services of a temporary employee or a probationer was by way of punishment or not, depends upon the facts and circumstances of each case. It may also be apt to refer to principles noticed in paragraphs 40 to 44 in Govt. of NCT of Delhi and Ors. v. Naresh Kumar (supra) by a Co-ordinate Bench of this Court, bringing out the difference in concept of „motive‟ and „foundation‟ and consideration for determining if the termination order is „penal‟:

41. As to motive, it was observed:- “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 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 pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge.”

42. Suffice would it be to state that if an inquiry is conducted into an alleged misconduct behind the back of the employee and a simple order of termination is passed, „founded’ on the report of the inquiry indicting the employee, the action would be tainted but where no findings are arrived at any inquiry or no inquiry is held but the employer chooses to discontinue the services of an employee against whom complaints are received it would be a case of the complaints motivating the action and hence order would not be bad as observed in the decision reported as AIR 1999 SC 983 Dipti Prakash Banerjee Vs. Satvendera Nath Bose National Centre for Basic Sciences (para 22).

43. To conclude on the issue, we note the decision of the Supreme Court reported as AIR 2002 SC 23 Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences & Anr., where in para 28 thereof, how the issue has to be dealt with by Courts was stated. It was held: Therefore, whenever a probationer challenges his termination the Courts’ first task will be to apply the test of stigma or the form test. If the order survives this examination the substance of the termination will have to be found out.

44. We may only add by stating that nobody acts for no reasons and indeed if somebody were to act on account of no reasons, that itself would vitiate an action as not only being unintelligible but as being perverse. Obviously, something has to impel or propel an employer to terminate the services of his employee. It is only when the termination is by way of penalty would the principles of natural justice and opportunity to participate at an inquiry where guilt to be determined is the object of the inquiry would come into play. Obviously, where on the finding of guilt an order terminating the services of an employee is passed it can safely be said that the employee has been penalized for a wrong. But where the misdemeanour is not treated as proved and no inquiry is held, and where an inquiry is held, the report is not made the foundation of the order, but what is opined by the employer is that the employee has lost the confidence of the employer, an order of termination cannot be said to be founded on the misdemeanour and the misdemeanour would remain as the motive for the action. This situation would not attract the principle that the termination is penal.” The circumstances in the aforesaid case were akin to the proposition under consideration. The respondents therein who were working on probation on the post of Warder Prisons were accused of having committed penal offences punishable under Section 363/366/376 IPC. On account of same, their services were terminated during the course of probation. The respondents therein were subsequently acquitted in the criminal trial. The Division Bench held that the order terminating the services of the respondents was not founded on the proof of misdemeanour of having committed the offences charged of, but the same was only a motive for the action. It was observed that the involvement of the respondents in a criminal offence keeping in view the nature of offence was a justifiable ground for the employer to opine that the two had lost the confidence of the employer. Further, the order terminating the services of the respondents was innocuous and non-stigmatic, even after lifting the veil and as such the order of termination of services was upheld.

12. Reference at this stage may also be made to Director, Aryabhatta Research Institute of Observational Sciences (ARIES) v. Devendra Joshi and Others (supra) relied by learned counsel for the petitioners wherein observations made in paragraphs 33 & 34 in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd., (1999) 2 SCC 21 have been reiterated, bringing out analysis of cases, where the „misconduct‟ was treated as the „foundation‟ or „motive‟ for termination of services. The same has also been followed in Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences (supra) relied by both the counsels and may be beneficially reproduced:

13. In the light of aforesaid legal position, there is no dispute as to the principles of law enunciated in the authorities referred to by both the learned counsels for the petitioners as well as respondent. The question whether the order terminating the services is innocuous or punitive in nature has to be considered on the facts of each case. Also, it would be justifiable to lift the veil to find out the true nature of the order by which the services were terminated.

14.

(i) The judgments relied upon by learned counsel for the respondent in this regard are distinguishable on facts. In Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences (supra) the appellant therein, working on the post of Chest Therapist is alleged to have gained illegal appointment, on the basis of which an inquiry was conducted by the DSP. Consequently, Director, IGIMS was directed to initiate proceedings for termination of service. Considering the fact that the punishment of dismissal was passed without conducting the regular inquiry and supplying of documents as requested by appellant and the fact that ex-parte inquiry contained stigmatic remarks, it was held that the same constituted „foundation‟, rendering termination order punitive.

(ii) Similarly in State Bank of India and Ors. v. Palak Modi and

Ors(supra), the services of the private respondent who were working as probationary officers in appellant bank were terminated for use of unfair means in objective test. I.B.P.S. had relied upon the analysis made by the computer and sent report to the Bank that 18 candidates were suspected to have used unfair means. The concerned authority then sent for the chart of seating arrangement and treated the same as a piece of evidence for coming to conclusion that the private respondents had indeed used unfair means in the examination. This exercise was not preceded by an inquiry involving the private respondents and no opportunity was given to them to defend themselves against the charge of use of unfair means. Hon‟ble Apex Court affirmed the order passed by the High Court and dismissed the appeal preferred by appellant bank, observing that the foundation of the action taken by the General Manager was the accusation that while appearing in the objective test, the private respondents had resorted to copying and the respondents were condemned unheard which was legally impermissible. It was further held that if the misconduct/misdemeanor constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non-stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct. (iii). The factual position in Chandra Prakash Shahi v. State of U.P. & Ors.(supra) relied by learned counsel for the respondent is also distinguishable. The order of termination of service of appellant constable therein, who was on probation, was set aside by the Tribunal. Hon‟ble Supreme Court upheld the same noticing that the appellant had completed his training and probationary period of two years without any blemish and had been terminated on account of quarrel between two other constables, in which to begin with he was not involved. The termination was observed to be founded on the report of the preliminary inquiry conducted to find out involvement of the appellant, but not to find out whether the appellant was further suitable for retention in service or confirmation, as he had already completed the period of probation quite a few years ago. Further taking note of Regulation 541 of U.P. Police Regulations, which provided for informing of the grounds on which the services are to be terminated and the employee is required to explain his position, the judgment passed by the Tribunal was restored.

(iv) The judgment passed in Paras Nath Pandey v. Director, North Central

Zone (supra) relied by learned counsel for the respondent is also distinguishable. The services of the petitioner therein who was appointed as Stenographer(Hindi) attached to Deputy Director, on temporary basis were terminated on a false complaint lodged before the District Magistrate, alleging him to be a man of unsound mind and requiring treatment. Also an FIR was registered against the petitioner under Section 353 IPC pursuant to which he was arrested. Petitioner challenged the order of termination before learned Single Judge on the ground that termination order is „founded‟ on false allegations in the FIR and is punitive in nature. Learned Single Judge dismissed the writ petition holding that the termination order is simpliciter and not „founded‟ on any alleged misconduct. The same was set aside by the Division Bench of Allahabad High Court after discussing principles governing the termination of services of temporary employees and held the termination order to be punitive in nature. It was observed therein that though the termination order was innocuously worded but the circumstances attending and preceding to the order, the inquiry conducted against petitioner, the findings recorded by the Director, NCZCCC, left no doubt that order of termination was „founded‟ on alleged acts of misconduct which was found proved by Director himself, based on an inquiry conducted by Administrative Officer under the orders of Director.

(v) In Pintu Kumar Yadav v. Director General of Police, Central

Reserve Police Force and Ors. (supra), Petitioner was a probationer whose services were terminated on account of unauthorized absence. Learned Single Judge quashed the termination order holding the same to be stigmatic and punitive in nature since the attending circumstances revealed that misconduct was the real basis of termination. The aforesaid case is also distinguishable and order appears to have been passed in the peculiar facts and circumstances of the said case.

15. Reverting back to the facts of present case, it may be noticed that a report was placed for consideration of the Competent Authority informing the factual position, whereby the respondent during frisking was found smuggling 15 grams of a narcotic drug hidden in his undergarment in presence of Jail Official by the TNSPP on October 13, 2017. It was further informed that an FIR No.0440/2017 under Section 21/61/85 NDPS Act was registered against the respondent at Police Station Hari Nagar and he had been arrested. In the facts and circumstances, Competent Authority did not proceed to hold any preliminary inquiry, to find out the truth of allegations against the respondent but decided to terminate the services of respondent on the basis of aforesaid report, since the respondent was under probation and the appointment was governed by CCS (Temporary Services) Rules, 1965. It is pertinent to note that entry points in Jail are generally under the CCTV surveillance and the recovery had been effected from the undergarment of the respondent, by the police personnel of TNSPP, which is an independent police force deputed to guard the jail premises. Accordingly FIR was registered under Section 21/61/85 NDPS Act and the recovered substance on examination was further found to be „smack‟. Apparently, no further preliminary inquiry in the facts and circumstances was even required by the Competent Authority in view of registration of FIR against the respondent. The exercise of powers under Rule 5(1) of CCS (Temporary Services) Rules, 1965, in the facts and circumstances appears to have been rightly undertaken since the respondent allegedly indulged in smuggling of narcotic drugs within the Jail premises wherein he was posted as Warder. It may be noticed that in order of termination of services of the respondent, no further reference has been made to the „misconduct/misdemeanour‟ of involvement of respondent in offences under Section 21/61/85 NDPS Act and as such it cannot be said that the order is stigmatic. The termination on face of record is not „founded‟ on any inquiry and the „involvement‟ of the respondent in the aforesaid FIR, can only be termed as a „motive‟ for terminating the services. The termination order as such is not „punitive‟ in character but „termination simpliciter‟ without casting any evil consequences on the respondent.

16. We are of the considered view that the Tribunal missed the fine distinction between „motive‟ and „foundation‟ as brought out in several judgments and wrongly reached the conclusion that the termination order was punitive by simply relying upon Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Ors.(supra).

17. For the foregoing reasons, the order passed by the Tribunal is set aside and the termination order passed by competent authority dated November 06, 2017 is upheld. The writ petition is accordingly allowed. No orders as to costs. Pending applications, if any, also stand disposed of.

ANOOP KUMAR MENDIRATTA, J. V. KAMESWAR RAO, J. SEPTEMBER 06, 2023