JUDGMENT V.K. Shukla, J.
1. In the district of Etawah, there is an institute known as U.P. Rural Institute of Medical Sciences and Research, Saifai, Etawah. Earlier it was known as Multi Specialty Medical Institute, Saifai, Etawah. It was a Satelite Centre of Sanjay Gandhi Post Graduate Institute of Medical Sciences, under Section 3 of Sanjay Gandhi Post Graduate Institute of Medical Sciences Act, 1983 (U.P. Act No. 30 of 1983). On 09.01.2005, the Director, Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow issued an advertisement inviting applications for several categories of paramedical and other staff for appointment at Multi Specialty Medical Institute, Saifai, Etawah. Petitioner Nos. 1 and 2 pursuant to the aforementioned advertisement applied for the post of Nurse (Male). They appeared in written examination and were selected. Appointment letters were issued on 31.05.2005 by the Director, Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow, and they joined on 04.06.2005. Again an advertisement was issued by the Director, Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow on 10/16-09-2005. Petitioner Nos. 3, 4 and 5 applied for consideration of their candidature. They undertook written examination and were selected. On the basis of their names in the select list, petitioner No. 3 was issued appointment letter on 14.12.200, petitioner No. 4 on 11.03.2006 and petitioner No. 5 was issued appointment letter on 11.03.2006/04.04.2006. In between U.P. Rural Institute of Medical Sciences and Research, Saifai, District Etawah, Act, 2005 (U.P. Act No. 27 of 2005) which provided for establishment of U.P. Rural Institute of Medical Sciences and Research, Saifai, District Etawah, was enforced, and the said Institute was to be body corporate and was to be affiliated with a University, in accordance with the provisions of the U.P. State Universities Act, 1973. On 18.07.2006, an incident is alleged to have taken place in the institute, in which Pankaj Kumar Gupta, petitioner No. 3 was assaulted by Dr. Ashish Katiyar and Dr. Mangal Singh, both junior resident officers, along with some other junior resident officers. In this regard complaint was made to the Director of the Institute on 18.07.2006 itself. As no action was being taken, petitioner No. 3 along with other Nursing staff went to Medical Superintendent in order to apprise him of the aforesaid incident. At that point of time, the junior doctors again assaulted the paramedical staff. Inquiry Committee headed by Dr. J.N. Puri as Chairman, was constituted on 20.07.2006 to make inquiry. Enquiry committee was to inquire into reasons of dispute which had arisen between the junior doctors and the Male Nursing staff. Various queries were put up, which were replied, and thereafter order dated 21.07.2006 has been passed dispensing with the services of the petitioners in terms of condition No. 3 of the appointment letter, saying that their services were no longer required. At this juncture present writ petition has been filed.
2. Counter affidavit has been filed by Dr. Mukesh Yadav, contending therein that after 15.12.2005 institute became an independent institution and is affiliated to C.S.J.M. University, Kanpur. It has been contended that petitioners had been offered appointment with prescribed conditions, and their services could be dispensed with by one month's notice. Description of incident, which had taken place, has also been mentioned. After the report of the Inquiry Officer, action has been taken in the interest of the institution. It has also been contended that not only the petitioners, but the junior doctors, who participated in the incident have also been asked to go out of the institution, as each one of them was on probation. It has been contended that appointments have been dispensed with strictly as per terms and conditions of the appointment, as such no interference be made.
3. Rejoinder affidavit has been filed, and it has been contended that Section 3(3) of U.P. Act No. 27 of 2005 provides that institution in question would function as a College affiliated to a University, in accordance with the provisions as contained under U.P. State Universities Act, 1973; the college in question falls within the territorial jurisdiction of C.S.J.M. University Kanpur, and thus, the provisions of the U.P. State Universities Act, 1973 are applicable to the institution in question, and various provisions confer statutory protection to the non-teaching staff under the First Statute, which is fully applicable to the petitioners, and as per the same, no action can be taken against class III employees until and unless it is reported to the District inspector of Schools and the action, if any, is ineffective till it is approved by the District Inspector of Schools. In this background, as no approval has been accorded by the District Inspector of Schools, the order dispensing with the services of the petitioners is inoperative and ineffective as per Statute No. 21.02 of the First Statute of the University. It has also been contended that the order which has been passed is stigmatic in nature, and further dispensation of service of Doctors cannot be equated with that of the petitioners, who were offered appointment after undergoing regular process of selection. It has been also contended that the provisions of the U.P. Government Temporary Employees (Termination of Service) Rules, 1975 are not applicable, and further it has been contended that punitive action has been taken in most unfair manner.
4. After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. Original record of enquiry has also been produced.
5. Sri Ashok Khare, Senior Advocate, appearing for petitioners, has assailed the impugned orders on the following grounds:
(i) in the present case incident dated 18.07.2006 formed foundation and basis for taking punitive action, as the said incident had formed foundation and basis, services of petitioners could not have been dispensed with without undertaking formal departmental inquiry in the matter, as such impugned orders being stigmatic in nature are liable to be set aside.
(ii) College in question being affiliated to a University, in terms of Section 37(2) of the U.P. State Universities Act, 1973 as such the First Statute of Kanpur University are also applicable to the institution in question, and same confer various statutory protection to the non-teaching staff, and same are also applicable to the petitioners, and no approval has been taken from the District Inspectors of Schools, the impugned orders are of no consequence.
6. Sri C.B. Yadav, learned Chief Standing Counsel, countered the said submission by contending that in the present case services of petitioners were temporary and they were on probation, and their services have been dispensed with in consonance with the terms and conditions of the appointment order. The impugned orders are not stigmatic in nature, as such no inquiry was required, and as far as approval by the District inspector of Schools is concerned, the same was also not at all required for the simple reason that the institution in question is maintained by the State Government, and further U.P. Act No. 27 of 2005 is special Act and shall prevail over general Act, as such writ petition is liable to be dismissed.
7. In order to consider the respective arguments, the first question which has cropped up in the present case is as to whether the impugned orders are stigmatic in nature or they have been passed in consonance with the provisions as contained in the letter of appointment. Petitioners undisputedly, after going through the process of selection had been offered appointment. Condition No. 3 of the appointment letter clearly mentions that same is purely temporary but likely to continue and can be terminated on one month's notice from either side or in lieu of notice on payment of a sum equivalent to one month's salary. Condition No. 4 clearly mentions that petitioners shall be on probation for a period of one year and the probation period at the discretion of the competent authority may be curtailed or extended by such period as deemed necessary. Undisputed position is that petitioners were on probation. Unfortunately, an incident took place on 18.07.2006, qua which complaint was made in the office of the Medical Superintendent on 19.07.2006, where again in the Chamber of Medical Superintendent violent activity took place. For making inquiry qua the cause of such incident, Inquiry committee was constituted as per office order dated 20.07.2006. The Committee was to inquire into the dispute which had taken place between the junior doctors and the petitioners. After the said inquiry had been over, services of the petitioners have been dispensed with. The order impugned on the face of it shows that services of petitioners had been dispensed with on the ground that their services were not at all required, and as per condition No. 3 of the appointment letter, petitioners being temporary employees, their services have been dispensed with.
8. In what circumstance, the allegation of misconduct will be the motive and in what cases they will be foundation, has to be judged in factual background of the case. The issue has been examined in several decisions, including Constitution Benches of Hon'ble Apex Court. In a seven Judge-Bench judgment in case of Shamsher Singh v. State of Punjab , difference between the words motive and foundation was considered at length. Paragraphs 79 and 80 of the judgment being relevant are quoted below:
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 25 June 1969 that in the light of the report the appellant was not a suitable person 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 Ishwar Chand Agrawal is clearly y way of punishment in the facts and circumstances of the case. The High Court not only denied Ishwar Chand Agrawal the protection under Article 311 but also denied itself the dignified control over the subordinate judiciary. The form of the order is not 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 case of Ishwar Chand Agrawakl. The order of termination is illegal and must be set aside.
9. Hon'ble Apex Court int the case of Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. , took the view that assessment qua Government Servant that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are not motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer. The position is not different even if a preliminary inquiry is held because the purpose of preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental Inquiry. The purpose of the preliminary inquiry is not to find out misconduct. Paragraphs 34 and 35 of the said judgment being relevant are quoted below:
34. It will be noticed from the above decisions that the termination of the service of a temporary servant or one on probation, on the basis of adverse entries or non the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are not motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as he then was) in Ram Narayan Das's case. It is done only with a view to decided whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champak Lal's case. The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad, Even in a case where a regular departmental inquiry is started, a charge memo issued, reply obtained, an an enquiry officer is appointed- if at that point of time the inquiry is dropped and a simple notice of termination is passed, the same will will not be punitive because the enquiry officer has not recorded evidence nor given any finding on the charges. That is what is held in Sukh Raj Bahadur's case and in Benjamin's case. In the latter case, the departmental inquiry was stopped because the employer was not sure f establishing the guilt of the employee. In all these cases allegations against the employee merely raisdd a cloud on his conduct and as pointed by Krishna lyer, J. in Gujrat Steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed, The above are all examples where the allegations whose truth has not been found and where merely the motive.
35. But in cases where termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee-even through such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases.
10. However, in the case of Dipti Prakash Banerjee v. S.N. Bose National Centre for Basic Sciences Calcutta and Ors. 1999 (81) FLR 687, Hon'ble Apex Court contended that findings arrived at by an informal committee against the appellant, which was constituted, on a complaint by the appellant cannot be used for terminating the appellant's probation, without a proper departmental enquiry Point No. 4 of the said judgment Is being extracted below:
Point 4:
Under this point, two aspects of the case fall for consideration, firstly whether the impugned order is founded on any conclusions arrived at by the employer as to his misconduct or whether the termination was passed because the employer did not want to continue an employee against whom there were some complaints. The second aspect is whether there is any stigma in the order of termination or in the documents referred to in the termination order.
Taking up the first aspect, we have noticed that during the first one year of probation, a letter dated 11-12-95 was served on the appellant. That letter stated, among other things, that the appellant 'prepared false bills' and that he "misbehaved with women academic staff members". The appellant sent a reply denying the allegation and he also sought for a copy of the complaint said to have been given by the lady academic staff member. It is true that subsequently, there were two orders of extension of probation each for six months. But in the impugned order dated 30-4-97, it was stated in para 8 that the order of termination was being passed because of the 'conduct', performance, ability and capacity of the appellant during the "whole period". This would clearly take in the facts stated in the letter dated 11-12-95. It is obvious that findings of preparation of false bills or of misbehaviour with women which ought to be arrived at only in a regular departmental inquiry, were referred to in this letter without any inquiry. It will be noticed that the letter dated 11-12-95 does not merely say that there are such complaints against the appellant but it says conclusively that the appellant had "prepared false" bills and "misbehaved' with women academic staff members.
The above language in the letter dated 11-12-95 would clearly imply that this was not a case of any preliminary findings. If these were referred to as mere allegations, it would have been a case of motive. But as these definitive conclusions of misconduct are evident on the face of this letter dated 11-12-95 and this letter falls within the "whole period", the conclusion is inescapable that these findings were part of the foundation of the impugned order and it is not a case of mere motive. On this ground, the order requires to be set aside.
We shall next take up the second aspect relating to stigma. We shall assume that the words used in the impugned order do not contain any stigma. We shall then refer to the three other letters to which the order makes a reference. In the first letter dated 30-4-96, we do not find anything objectionable. Coming to the next letter, we however find that para (iii) refers to the scuffle between the appellant and one P. Chakraborty regarding which the appellant made a complaint on 28-5-96. An Inquiry Committee is said to have been appointed and it gave a Report. The extract from the report of the Committee dated 15-7-1996 is found in the Counter of the respondents. The Inquiry Committee found the appellant's "behaviour reprehensible", and it confirmed that the appellant was involved in a scuffle and did misdeeds like obtaining false signatures", and said that the appellant was "guilty of inefficient performance or duty, irregular attendance without permission, rude and disorderly behaviour and wilful insubordination". Whatever may be said about the other words, the words used in connection with the finding of the Inquiry Committee about the scuffle and about the appellant obtaining false signatures, are, in our opinion, clearly in the nature of a stigma. Further, the Inquiry Committee said he must be 'punished'. It did not say that proceedings for disciplinary action were to be initiated. Thus on the ground of 'stigma' also the impugned order is liable to be set aside.
It was argued that the appellant was given notice of the above Inquiry by the Committee but he was not cooperative'. In our view findings arrived at by such an informal Committee against the appellant, which Committee was, in fact, constituted on a complaint by the appellant against Mr. Chakraborty, - cannot be used for terminating the appellant's probation, without a proper departmental inquiry. The said findings, in our view, were the foundation for the impugned order among other facts. Such findings must, in law, be arrived at only in a regular departmental inquiry.
11. Thereafter, Hon'ble Apex Court in the case of Chandra Prakash Shahi v. State of U.P. and Ors. , after considering the entire case law has mentioned that concept of motive and foundation has always to be kept in mind, as the motive is the moving power which impels action for a definite result, or to put it differently, motive is that which incites or stimulates a person to do an act, whereas if there were allegations of serious misconduct against an employee and preliminary enquiry is held behind his back to ascertain the truth of those allegations, and termination order is passed thereafter, the order having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. Paragraphs 28, 29 and 30 of the aforesaid judgment are being quoted below:
28. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. 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 service 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 that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".
29. "Motive" is the moving power which implies action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which implied the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct Which were found to be true in the preliminary enquiry.
30. Applying these principles to the facts of the present case, it will be noticed that the appellant, who was recruited as a Constable in the 34th Battalion, Pradeshik Armed Constabulary, UP., had successfully completed his training and had also completed two years of probationary period without any blemish. Even after the completion of the period of probation under Para 541 of the U.P. Police Regulations, he continued in service in that capacity. The incident in question, namely, the quarrel was between two other Constables in which the appellant, to begin with, was not involved. When the quarrel was joined by few more Constables on either side, then an enquiry was held to find out the involvement of the constables in that quarrel in which filthy language was also used. It was through this enquiry that appellant's involvement was found established. The termination was founded on the report of the preliminary enquiry as the employer had not held the preliminary enquiry to find out whether the appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years ago but was held to find out his involvement. In this situation, particularly when it is admitted by the respondent that the performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct.
12. Hon'ble Apex Court in the case of Pavnendra Narain Verma v. S.G.P.G.I. Lucknow and Ors. , has evolved tests to determine whether in substance an order of termination is punitive or not. Paragraphs 21 to 35 are being quoted below:
21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct (c) which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.
22. The three factors are distinguishable in the following passage in Shamsher Singh v. State of Punjab (supra) where it was said:
Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal of an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Article 311(2) he can claim protection.
23. Thus in Benjamin's case (supra), complaints had been received against a temporary employee. A notice had been sent to the employee to show cause why disciplinary action should not be taken against him. The inquiry officer was appointed but before the inquiry was completed, the services of the employee were terminated with one month's salary in lieu of notice. The Constitution Bench upheld the order of termination and drew a distinction between a preliminary inquiry and a departmental inquiry. It was held that a preliminary inquiry held to satisfy the Government whether there was no reason to dispense with the services of the temporary employee should not be mistaken for a departmental inquiry held to decide whether punitive action should be taken.
24. In State of Uttar Pradesh v. Kaushal Kishore Shukla . the employee had been appointed on a temporary basis for a fixed tenure. During the period of his service, adverse entries were made in his character roll. Complaints were also received by the auditors of the employer. A summary inquiry was held. It was found that the auditor's complaint was correct. The employee was transferred to another post. He did not join and the employer terminated his services. This Court, while upholding the order of termination, said that the mere fact that prior to the issue of the termination an inquiry was held against the employee did not make the order of termination into one of punishment.
25. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. , a full scale inquiry was held into the allegations of bribery against a temporary employee. The Court set aside the termination because it found that the report submitted was not a preliminary inquiry report but it was in fact a final one which gave findings as to the guilt of the employee.
26. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Science, Calcutta , the termination order itself referred to three other letters. One of the letters explicitly referred to misconduct on the part of the employee and also referred to an Inquiry Committee's report, which report in its turn had found that the employee was guilty of misconduct. The termination was held to be stigmatic and set aside.
27. The case of Chandra Prakash Shahi v. State of U.P. , related to a constable who was on probation after successfully completing his training. The constable completed his period of probation without blemish. One year later, his services were terminated by issuance of a notice in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. An inquiry was held into the allegations of misconduct. The Court found as a fact that the inquiry was not held to judge the suitability of the constable but with a view to punish him. The order was held to be punitive and set aside.
28. 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.
29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma ? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.
30. As was noted in Dipti Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (supra).
At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das 12 , it has been held that use of the word "unsatisfactory work and conduct" in the termination order will not amount to a stigma.
31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellant's "work and conduct has not been found to be satisfactory". These words are almost exactly those which have been quoted in Dipti Prakash Banerjee's case as clearly falling within the class of non stigmatic orders of termination. It is, therefore safe to conclude that the impugned Order is not ex facie stigmatic.
32. We are also not prepared to hold that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exist here.
33. It was finally argued by the appellant that the intention of the respondents to punish him was clear from the following statement in the affidavit filed on their behalf.
It is important to mention herein that even honesty and integrity of the petitioner was also under cloud as he took undue favours by misusing his position from the suppliers and maligned the reputation of the institute.
34. That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi .
...When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise....
35. Equally an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is also what was held in State of Uttar Pradesh v. Kaushal Kumar Shukla (supra):
The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.
13. Recently, Hon'ble Apex Court in the case of Jai Singh v. Union of India and Ors. 2006 (4) ESC 399, after considering the material in paragraph 11,14 and 16 has held as follows:
11. In what situation the allegation of misconduct will be the motive and in what cases they will he foundation has to be adjudicated 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. An elaborate analysis of the various decision was made by this Corut in Radehy Shyanm Gupta v. U.P. Ago Industries Corporation Ltd. and Anr. . The matter was examined elaborately by 7-Judges in Samsher Singh v. State of Punjab and Anr. . In the said case it was noted in paragraph 79 and 80 as follows:
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 25 June, 1969 that in the light of the report the appellant was not a suitable person to be retained in service. The order of termination was because of the recommendations in the report.
80. The order or termination of the services of Ishwar Chand Agarwal is clearly by way of punishment in the facts and circumstances of the case. The High Court not only denied Ishwar Chand Agarwal the protection under Article 311 but also denied itself the dignified control over the subordinate judiciary. The form of the order is not 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 case of Ishwar Chand Agarwal. The Order of termination is illegal and must be set aside.
14. The question whether termination of service is simpliciter or punitive has been examined in several order cases e.g. Dhananjay v. Chief Executive Officer, Zila Parishad, Jalna and Mathew P. Thomas v. Kerala State Civil Supply Corporation Limited and Ors. . An order of termination simpliciter passed during the period ot probation has been generating undying debate. The recent two decisions of this Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences after survey of the 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 the either side referred 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 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 inquiry 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 inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry 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 if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not 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 and circumstances of each case. Manya 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 order of termination simpliciter or on motive on the ground of unsuitably to continue in service.
16. In the background of the fact as noticed by 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.
14. On the basis of the law laid down by Hon'ble Apex Court, each case has to be adjudged in its factual background and circumstances to arrive at conclusion, where allegations of misconduct would be motive and in which case it would be foundation. Motive is the moving power which impels action for a definite result, or to put it differently, motive is that which incites or stimulates a person to do an act. An order terminating the services of any employee is an act done by employer. What is the factor which impelled the employer to take such action? If factor of general unsuitability is the reason, the action is to be upheld. However, if there are allegations of misconduct against the employer and fact finding committee is constituted to make enquiry to ascertain the truth, and termination order is passed thereafter, the order; having regard to other circumstances would be misconduct. Many a times, distinction between foundation and motive in relation to an order of termination is either thin or overlapping, and in this background heavy burden lies on the Court, to find out, as to in which category, the case falls. Factual background takes frontseat in these matters, for arriving at rightful conclusion. On the touchstone of the principles enunciated above, the facts of present case is being adverted to. Original record reflects that for making enquiry in respect of incident which had taken place on 18.07.2006 and 19.07.2006, in between Junior Doctors and Staff Nurses, Three Member Enquiry Committee; with Dr. J.N. Puri, Professor, Pharmacology as Chairman; Dr. R.C. Chaddha, Chief Medical Officer, Etawah as member and S. Joseph, Matron, District Hospital, Etawah as Member, was constituted. On 20.07.2006 in question answer form Dr. Rakesh Kumar Dr. Mukesh Yadva, Dr. Awaneesh Kumar, Sanjeev Kumr, Smt. Maheshwari Gupta, Dr. Digivijai Nath Tewari, Dr. D.K. Singh, Tulsi Ram Gupta, Sri Bahadur Singh, Vinod Kumar Gupta, Jintendra Kumar Sharma, Mukesh, Pankaj Gupta, Dr. Sangram Singh Sachan, Dr. Rohtash Gupta, Dr. Mangal Singh. Dr. A. Katiy, have been examined. On the basis of enquiry made on 20.07.2006, following report has been submitted which is as follows:
vk[;k vkids dk;kZy; Kki la0 [email protected] dk;kZy; [email protected] fjEl ,.M vkj @ 2006&07 fnukad 19-07-2006 ds vuqikyu esa xfBr tkWap lfefr us viuh izkjfEHkd tkWp vkt fnukad 20-07-2006 dks dhA izkjfEHkd :i esa fuEufyf[kr twfu;j MkDVlZ ,oa LVkQ ulZ (esy) dks ekjihV ,oa >xMs+ esa lafyIr ik;k x;k ,oa izFke n`"V;k nks"kh djkj fn;k x;k%& (1) Mk0 vkkh"k dfV;kj] twfu;j jsthMsUV tujy ltZjh foHkkx (2) Mk0 eaxy flag] fMekULVs~Vj dE;wfuVh esMhflu foHkkx (3) Jh cgknqj flag] LVkQ ulZ (4) Jh fouksn dqekj xqIrk] LVkQ ulZ (5) Jh ftrsUnz dqekj kekZ] LVkQ ulZ (6) Jh iadt dqekj xqIrk] LVkQ ulZ (7) Jh rqylh jke xqIrk] LVkQ ulZ vr,o mDr tkWap djus ds mijkUr lfefr okLrfod :i ls bl fu"d"kZ ij igqWaph gS fd ekjihV ,oa rksM+QksM+ ds dkj.k laLFkku dh Nfo /kwfey gqbZ ,oa laLFkku dh lEifRr dks uqdlku igqWapk;k ,oa kkfUr O;oLFkk Hkh Hkax gqbZ gSA vr% lfefr tkWap vk[;k ds vk/kkj ij dze la0 1 ls 7 rd nkkZ;s x;s twfu;j MkDVlZ ,oa LVkQ ulZ (esy) ds fo:) vius Lrj ls vuqkklukRed dk;Zokgh djus gsrq laLrqfr djrh gSA g0 vLi"V g0 vLi"[email protected] g0 vLi"[email protected] Mk0 ts0 ,u0 iqjh vkj0 lh0 pM~k ,l0 tkslsQ izksQslj QkekZdksykth eq[; fpfdRlk vf/kdkjh eSVu ps;jeSu lnL; lnL;
15. Apart from this, record reflects, detailed report, which bears the signature of chairman dated 07.08.2006, on the basis of same enquiry dated 20.07.2006, submitted by Three Member Committee. Operative portion of the said report dated 07.08.2006 is being extracted below:
lfefr }kjk viuh tkWap ls ;g fu"kd"kZ fudkyk x;k fd fnukad 19-07-2006 dks gqbZ ?kVuk iwjs ;kstukc) rjhds ,oa lksph le>h lkftk ds rgr mRiUu dh x;h FkhA bl lEiw.kZ fookn esa Mk0 vkkh"k dfV;kj] Mk0 eaxy flag] Jh iadt xqIrk] Jh ftrsUnz dqekj kekZ] Jh fouksn dqekj xqIrk] Jh cgknqj flag] Jh rqylh jke xqIrk rFkk Jh eqdqV yky kekZ] ftuds }kjk laLFkku dh kkafr O;oLFkk] ifjlj dh vuqkklughurk Hkax dh x;h] jksfx;ksa ds mipkj esa O;o/kku mriUu fd;k x;kA mijksDr lHkh nksf"k;ksa dks vuqkklughurk] laLFkku dh kkafr O;oLFkk Hkax djus rFkk jktdh; lEifRr dks gkfu igqWapkus dkj.k dBksj vuqkklukRed dk;Zokgh dh laLrqfr dh tkrh gS rkfd Hkfo"; esa bl izdkj dh ?kVuk dh iqujko`fRr u gks vkSj fpfdRlky; esa jksfx;ksa dh mipkj O;oLFkk lqpk: :i ls pyrh jgsA g0 vLi"[email protected] g0 vLi"[email protected] g0 vLi"V Mk0 ts0 ,u0 iqjh vkj0 lh0 pM~k ,l0 tkslsQ izksQslj QkekZdksykth eq[; fpfdRlk vf/kdkjh eSVu ps;jeSu lnL; lnL;
16. The opinion, quoted above, shows that for the said misconduct petitioners have been found guilty, and said incident was a result of well calculated plan by way of deep-rooted conspiracy, and departmental action was recommended. Language of report shows -conclusive opinion qua misconduct i. e. participation of petitioners in the incident, and said report was certainly not in reference to judge suitability of petitioners in service rather to ascertain their participation.
17. The incident had taken place and thereafter termination order. has been passed keeping in view the report submitted o n 20.07.2006, which clearly made recommendation for action against doctors and the nursing staff. The report is founded on the allegations of misconduct, which were found to be true in the preliminary enquiry. Report was submitted on 20.07.2006 recommending action and thereafter termination order has been passed on the very next day. In the facts and circumstances of the present case, the incident dated 19.07.2006 and the report dated 20.07.2006 are clearly not motive but foundation for taking action against the petitioners as live nexus is clearly reflected, and once the said opinion was used as foundation, regular departmental enquiry ought to have been made in the matter. The termination order prima facie appears to be simple order of termination without any stigma as per the terms and conditions of the appointment, but once veil is lifted, the inevitable conclusion is that same is directly outcome of the incident/enquiry. Consequently, said order is not at all sustainable. Consequently, writ petition succeeds and is allowed. The impugned orders dated 21.07.2006 are hereby quashed. Passing of this order will not prevent the respondents from undertaking regular disciplinary proceedings, if any.
18. The second issue raised, has not been answered and is left open, as on the first issue itself, impugned order has been quashed.
19. No order as to costs.