JUDGMENT D.K. Seth, J.
1. Mr. Akhilesh Singh appearing with Mr. C. B. Yadav, learned counsel for the petitioner submits that termination of the petitioner's service under U. P. Temporary Government Servants (Termination of Service) Rules, 1975, is in fact a penalty in disguise and has been inflicted with stigma without holding any enquiry and without giving any opportunity to the petitioner, therefore, the same cannot be sustained. He has taken me through the statement made in paragraph 3 of the counter-affidavit as well as Annexure-C.A.-12 and points out that the respondents had terminated services of the petitioner on the alleged ground that the petitioner is in fact Yadu Vir Singh and not Om Vir Singh and Yadu Vir Singh had impersonified Om Vir Singh in order to seek appointment taking advantage of school certificates of Om Vir Singh. On enquiry by Mr. Bhagwan Singh, Circle Officer, Gurusahaiganj, Fatehgarh, it was found that one Rajvir Singh had made a complaint against the petitioner to the effect that Yadu Vir Singh had impersonified as Om Vir Singh for securing the employment and after recording finding, he had come to the conclusion that the petitioner was in fact Yadu Vir Singh and had impersonified as Om Vir Singh, therefore, steps should be taken by lodging a first information report for initiating appropriate criminal proceedings against him. Learned counsel further points out from Annexure-1 to the writ petition, namely, the order of termination, at the bottom whereof it is mentioned that services of the petitioner had been terminated on account of using a false certificate. Mr. C. B. Yadav, learned counsel for the petitioner had subsequently elaborated the submissions made by Mr. Akhilesh Singh and contended that in view of settled principles of law, the order of termination in the present case cannot be sustained.
2. Mr. K. R. Singh, learned standing counsel on the other hand contended that the impugned order of termination was perfectly justified, since there was no appointment at all. In fact, the appointment was given to Yadu Vir Singh impersonifying as Om Vir Singh, therefore, it was termination of service of Yadu Vir Singh and not Om Vir Singh and in this view of the matter, the petitioner cannot maintain this writ petition. Learned standing counsel further contended that in case the order of termination is set aside, in that event, the respondents may be permitted to hold a domestic enquiry against the petitioner in order to ascertain the truth. According to him, final report pursuant to the first information report accepted by the learned Magistrate does not preclude respondents from proceedings with disciplinary proceedings.
3. In reply, Mr. C. B. Yadav, had contended that it is no more open to the respondents to resort to disciplinary proceedings after having terminated services of the petitioner and having lodged a first information report which ended in final report. Inasmuch as it was incumbent on the respondents to hold enquiry and pass appropriate orders before issuing the order of termination.
4. I have heard learned counsel for the parties at length.
5. From the order impugned, it appears that services of Om Vir Singh was being terminated on account of using a forged certificate. It is not alleged that Om Vir Singh had used educational certificates of Vadu Vir Singh. On the other hand, it is being alleged that Yadu Vir Singh has used the certificates of Om Vir Singh, whereas services of Om Vir Singh is being terminated. The stand taken in paragraph 3 of the counter-affidavit appears to be contradictory. In case it is alleged that Yadu Vir Singh had impersonified Om Vir Singh, in that event, it requires determination of facts which can only be done by holding an enquiry. As it appears from the impugned order that service is being terminated on account of using a forged educational certificate, thus it is not a termination simplicitor. In fact, it is a foundation on which the order of termination has been based. If it was a case that some allegations is made, but the respondents without ascertaining the truth of such allegations, decided not to retain the petitioner and had passed the order, in that event, there could have been sufficient ground of argument in favour of Mr. K. R. Singh. Had it been simple motive not to retain him, then it would have been difficult for this Court to interfere. In the present case, it appears that production of forged educational certificates is the foundation, which is affirmed from the report of the Circle Officer contained in Annexure C.A.-1 to the counter-affidavit where truth has been ascertained. As soon truth of the allegation is ascertained and a first information report is lodged, the reason for terminating the service does not remain within the domain of motive. On the other hand, it becomes foundation not to retain him in service. If reason of the ground is foundation and not motive, in that event, it is not a termination simplicitor, it is a termination with stigma which is apparent. The very existence of Annexure C.A.-1 shows that in fact it is a penalty inflicted on the petitioner and as such, the order of termination is a penalty in disguise. Such situation is apparent on the face of the record and materials placed before this Court as discussed above. As soon the termination is based on certain allegations, even if a person holding temporary employment, the principles of natural justice and equity demand giving of an opportunity to refute such allegations. Unless the truth is ascertained after giving opportunity to the petitioner, there cannot be any order of termination and that too under 1975 Rules. Only termination simplicitor can be passed in exercise of the power under 1975 Rules. As soon a stigma is cast or it is a penalty, it does not remain within the scope and ambit of 1975 Rules and in such circumstances, it was incumbent upon the respondents to give an opportunity to the petitioner before issuing the order of termination. in that view of the matter, the order of termination cannot be sustained.
6. The contention of Mr. K. R. Singh that it should be kept open for the respondents to proceed against the petitioner through a domestic enquiry, does not appeal to me on the ground that it was open to the respondents to take recourse to such proceedings. But instead, they had terminated the petitioner's service and lodged a first information report and relied on criminal proceedings. After having subjected the petitioner to criminal proceedings and the respondents having decided not to hold domestic enquiry against him and having decided to terminate his service under 1975 Rules, it is no more open to the respondents to hold enquiry afresh particularly when it is Om Vir Singh who has come before this Court and is claiming to be Om Vir Singh and the respondents have not produced anything to show that he is not Om Vir Singh but he is Yadu Vir Singh. If the respondents were so interested, they could have convinced the Court by producing sufficient materials to atleast prima facie believe that the petitioner is not Om Vir Singh but Yadu Vir Singh. The allegation as it appears, having been found to be non-est pursuant to the final report since been accepted by the learned Magistrate, in the absence of further materials, there is nothing to hold that petitioner Om Vir Singh is Yadu Vir Singh. These are the reasons which weighed this Court to decline to grant relief to the respondents to hold a fresh enquiry.
7. In that view of the matter, this writ petition succeeds and is allowed. The impugned order dated 2.2.1996 contained in Annexure-1 to the writ petition is hereby quashed. Let a writ of certiorari do accordingly issue. There had been an interim order, pursuant to which the petitioner is continuing. The petitioner shall continue in service as if his service has not been terminated and he shall be entitled to all service benefits as admissible in law.
8. There will be no order as to costs.