JUDGMENT N.K. Mehrotra, J.
1. This is a petition for issuing a writ in the nature of certiorari quashing the order of termination dated 13.5.1989 as contained in Annexure 3 to the writ petition.
2. The case of the petitioner is that he joined his duties as a Constable in the 11th Battalion of P.A.C. on 1.10.1984. On 30.4.1988 he was suspended because of he being involved in a criminal case. He was recruited in service on 18.1.1989 but the question of payment of salary during the suspension period was kept undecided because of pending criminal case. After that one Khalil Ahmad made a complaint against the petitioner on 3.5.1989. The Company Commandant made enquiry from the petitioner about the allegation of the said complaint on 10.5.1989. On enquiry by the Company Commander, the petitioner denied the allegations made in the complaint of Khalil Ahmad. On 2.5.1989, the petitioner took one day's casual leave for going to Hardoi to attend the criminal case alongwith his mother. He came back and resumed duty on 5.5.1989. His statement was taken by the Company Commander on 10.5.1989. Afterwards on 13.5.1989, the services of the petitioner has been terminated by giving one month's pay in lieu of notice. According to the petitioner subsequent to the recruitment of the petitioner, number of Battalions including the Battalion Nos. 44 and 45 were recruited which consisted of about 1000 Constables in each Battalion and a large number of juniors are still in service and the post against which the petitioner was appointed still subsists. It is alleged that the services of the petitioner have been terminated by way of punishment and the order of termination, which apparently appears to be simpliciter, but in fact it is the order of removal, which has been passed without affording any opportunity to the petitioner. It is alleged that the impugned order of termination is founded on the allegation of Khalil Ahmad for which no disciplinary enquiry was conducted and, as such, the termination order is violative of Article 311 of the Constitution of India.
3. The opposite parties filed the counter affidavit. So far as the matter of complaint of Khalil Ahmad is concerned, it is said by the opposite parties that the enquiry report was submitted alongwith the entire evidence and the petitioner also gave his statement in that enquiry on 10.5.1989. It is also stated that the petitioner was found guilty on the allegations made in the complaint and it is on this report that his services were terminated with immediate effect with one month's pay. It is also submitted that the petitioner cannot be reconsidered unless the criminal case is decided. It is also stated that the petitioner has an alternative remedy.
4. In the rejoinder affidavit, it is stated by the petitioner that in the criminal case the petitioner has been acquitted on 9.4.1999. So far as the enquiry is concerned, the petitioner has stated in the rejoinder affidavit that the petitioner was enquired into the allegations without giving any opportunity of being heard. Neither any inquiry report nor any material had been supplied to the petitioner so as to give appropriate reply to the charges levelled against him. However the complaint was made on 5.5.1989 and the petitioner gave his reply on 10.5.1989 and on 13.5.1989 itself the services of the petitioner were terminated. The impugned order appears to be termination simpliciter but it appears that it is removal order and which is founded on the allegations made in the complaint filed by Khalil Ahmad. The statements of the witnesses have been recorded malafidely and no opportunity was given to the petitioner to cross-examine the witnesses. The copy of the enquiry report has never been supplied.
5. In view of the admitted facts in the counter affidavit, the services of the petitioners have been terminated. In the criminal case initiated on the basis of the complaint of Khalil Ahmad, the petitioner was acquitted. Thus, it appears that the basis of the impugned termination order is the report of the preliminary enquiry. The only issue to be decided in this case is as to whether the termination order is a simpliciter termination order or it is punitive order and if, it is found that there were allegations of misconduct for which preliminary enquiry was conducted behind his back to ascertain the truth and then termination is brought about, such termination having regard to other circumstances of a case, has to be taken as founded on misconduct and therefore to be treated as punitive.
6. It is settled law that the services of an employee can be terminated on account of unsuitability but if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the services is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question but to find out the truth of allegations of misconduct against him.
7. It is settled law that the benefit and protection of Article 311(2) of the Constitution is available not only to temporary servants but also to be probationer and the Court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated.
8. The learned Counsel for the petitioner has referred the decision of Chandra Prakash Shahi v. State of U.P. and Ors., in which it has been held that if, there are allegations of serious misconduct for which preliminary enquiry is conducted behind his back to ascertain the truth and then termination is brought about, such termination, having regard to other circumstances of a case, has to be taken as founded on misconduct and therefore to be treated as punitive and in such circumstances, the Court has to see as to whether the impugned termination order is punitive or simpliciter and if the order is punitive, it can be passed in the light of protection under Article 311(2) of the Constitution of India.
9. The learned counsel for the petitioner has also relied on the decision of Division Bench of this Court in Kailash Bharti v. State of U.P. and Ors., 2005 (23) LCD 436 in which it has been held that:
"even if the enquiry is of a preliminary in nature yet if such enquiry is the cause of termination and is concluded without a hearing, and if such enquiry is stigmatic then and in that event the writ petitioner would be entitled to have relief."
10. In the instant case, it appears from the contents of Para 11 of the counter affidavit that the real reason for termination had been a complaint against the petitioner by Khalil Ahmad. It is also clear that in the said criminal case, the petitioner has been acquitted. It is not a case of either party that a regular departmental enquiry after framing the charge and fixing the date for enquiry, has been conducted.
11. In view of the above, I found that the impugned order of termination is not an order of termination simpliciter. The impugned order is punitive in nature and the services of the petitioner have been terminated without holding a regular departmental enquiry depriving the petitioner of the protection given under Article 311(2) of the Constitution of India.
12. In view of the above the writ petition is allowed. The impugned order of termination dated 13.5.1989 is quashed. The opposite parties are directed to reinstate the petitioner and the petitioner shall present himself to duty within a fortnight. The petitioner shall not get any claim of the arrears of salary or any other benefit of the period during which he remained out of employment.