Heard learned counsel for the petitioner and learned Standing Counsel.
The present writ petition is filed with the following prayers:-
A. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.07.2007 passed by respondent No. 3/Superintendent of Police (Training/Security), Suraksha Mukhyalay, Special Security Force, Uttar Pradesh, Lucknow (Annexure No. 1 to the writ petition).
B. Issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere in the peaceful working and functioning of the petitioner and payment of petitioner, without giving any effect to impugned order dated 14.07.2009 passed by respondent No. 3/Superintendent of Police (Training/Security), Suraksha Mukhyalay, Special Security Force, Uttar Pradesh, Lucknow.
C. Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.
D. Award the cost of the petition to the petitioner.
The basic facts which give rise to the filing of the present writ petition are as follows:-
The respondent No. 3 i.e. Superintendent of Police (Training/Security), Suraksha Mukhyalay, Special Security Force, Uttar Pradesh, Lucknow had advertised for recruitment on substantive basis of Class-IV employees vide advertisement dated 31.03.2003. The petitioner on the basis of the said advertisement had applied for Class-IV employee as Orderly-cum-Peon in the office of respondent No. 3. The petitioner alleged that he was selected pursuant to the aforesaid advertisement and had been assigned work but no formal appointment letter had been issued in his favour. However, appointment of the petitioner was acknowledged by the respondents as its employee, wherein his date of appointment was shown as 10.05.2003. It has also been stated that in pursuance to the advertisement, petitioner has joined the post and was continuously working since then. It is submitted that clause 3 of the advertisement clearly stated that appoint pursuant to it was substantive in nature and the service conditions were to be governed by the statutory service regulation i.e. Class-IV employees service regulation of 1975. The salary certificate dated 06.07.2006 has also been filed alongwith present writ petition as Annexure No. 4 which indicate that the petitioner was drawing salary of Class-IV employee in regular scale of pay and there was no endorsement that the petitioner was employed on temporary basis. No appointment order was issued by the respondents showing him to be on temporary employee either.
The petitioner by means of the present writ petition has challenged the impugned order dated 14.07.2009 passed by the respondent No. 3 on the ground that without following any procedure of law and without giving any opportunity of hearing, the appointment of the petitioner has been cancelled. The claim of the petitioner has been set out on the basis that his initial engagement was on substantive basis against permanent vacancy, admittedly advertisement took place and he faced the selection process as per law and finally had been employed in the Department. The engagement was permanent in nature and his services were governed under the provisions of Group-D Employees Service (U.P.) Rules, 1975 (hereinafter referred as Rule 1975). As per clause 3 of the advertisement and as per provision of Rule 24 and 25, the services of the petitioner had to be confirmed after the expiry of the probation period. For ready reference, Rule 24 and 25 are reproduced hereinbelow:-
24. Probation: (1) A person on appointment to a post in the establishment in a substantive vacancy shall be placed on probation for a period of one year:
Provided that continuous service rendered in an officiating or temporary capacity in a post borne on the Establishment may be taken into account in computing the period of probation for that post:
Provided further that the appointing authority may, for reason to be recorded, extend the period of probation up to a specified date in individual cases.
(2) If it appears to the appointing authority at any time during, or at the end of, the period probation or extended period of probation that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction, he may be reverted to his substantive post, if any, or he does not hold a lien on any posts, his services may be dispensed with without entitling him to any compensation in either case.
25. Confirmation:-A probationer shall be confirmed in his appointment at the end of the period of probation or extended period of probation, as the case may be, if his work and conduct have been found to be satisfactory, the appointing authority considers him fit for confirmation and his integrity is certified.
Learned counsel for the petitioner submits that by virtue of aforesaid provisions the services were liable to be confirmed after expiry of probation period. He further states that the appointing authority may, for reasons to be recorded, could extend the period of probation beyond one year but in his case, the same had never been extended.
Learned counsel for the petitioner states that during the period of probation the work and conduct of the petitioner was satisfactory and after expiry of the probation period services were deemed to be confirmed w.e.f. 10.05.2005. It has also been stated that the in respect of class-IV employees certain protest has been raised by the Association of Class-IV employees and the department lodged a frivolous FIR regarding agitation by the Association, whereas the petitioner was falsely named only because he was State President of the Association. The FIR which is on record was lodged on 12.07.2009 whereas the termination order had been passed on 14.07.2009.
Learned counsel for the petitioner submits that the order of termination was founded solely on the allegation contained in the FIR. Learned counsel for the petitioner has advanced the following submissions:-
Firstly, the impugned order could not be sustained and under the present facts and circumstances, the provisions contained under the termination of temporary government servant rules, 1975 were not applicable upon the petitioner as his appointment was substantive in nature.
Secondly, it is submitted that the order of termination is not simpliciter, as is sought to be made out, inasmuch as the termination order was founded solely on the allegation that petitioner being state president of class-iv employees association had raised various demands and a frivolous FIR in respect of agitation has been lodged on 12.07.2009 in which the petitioner was falsely named and only as a means of punishment, the impugned order has been passed. Learned counsel for the petitioner further states that doctrine of lifting veil is applicable in the present case.
Thirdly, it has been stated that the impugned order suffers from malice in law and malice in fact inasmuch as the respondents have punished the petitioner without holding any inquiry etc. and incorrectly applied the provisions of 1975 rules.
In this background, learned counsel for the petitioner has relied upon the judgment in the case of Radhey Shaym Gupta Vs. U.P. State Agro Industries Corporation Ltd. and another reported in (1999) 2 SCC 21 which deals the termination of service on temporary/probationer as simpliciter. The relevant portion is quoted below:-
"18. The first decision of the Constitution Bench was in Parshottam Lal Dhingra vs. Union of India [AIR 1958 SC 826]. There a twin test was laid down - whether the order in terms of the appointment gave a right to terminate and whether the order was punitive in nature. If misconduct was motive, the order was not punitive but if it was the foundation it was punitive. In that case, the employee was working in a higher post in an officiating capacity and that appointment was terminated and he was reduced in rank. S.R. Das, C.J. stated (para 28) (p49) that misconduct, negligence, inefficiency or other disqualification might be the motive or the inducing factor which influenced the Government to take action under the terms of the contract of employment or the specific service rule, and the motive was irrelevant. But if the termination was 'founded' on misconduct, negligence, inefficiency or other disqualification, it would have to be treated as a punishment. It was also held that the use of the word 'termination' or 'discharge' was not conclusive. In spite of the use of such innocuous expressions, the Court could still hold it be punitive. On the facts of the case the termination of the officiating appointment was based upon certain adverse remarks and it was held that it was not by way of punishment.
19. Next came the decision of the Constitution Bench in State of Bihar vs. Gopi Kishore Prasad [AIR 1960 SC 689]. Here a test of 'inquiry' was laid down. That was a case probationer. The Government had come to the conclusion, on inquiry, that the respondent was unsuitable for the post held on probation. Because of the inquiry, Sinha, C.J. held this to be "clearly by way of punishment." Termination (without notice) but after holding an inquiry into the alleged misconduct or inefficiency or some similar reason would be punitive. Government could not, "brand him dishonest and incompetent without inquiry." If it did so, it would be by way of punishment, but not if the position "was that he was found unsuitable', without holding an inquiry. Both Dhingra and Gopi Kishore Prasad were decided when the law in this branch was just developing.
20. However Shah,J. (as he then was) in State of Orissa vs. Ram Narayan Das [1961 (1) SCR 606] gave a new dimension to the legal principles. That case also related to a probationer but was governed by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules which was a special provision and which stated that "where it is proposed to terminate the employment of a probationer, whether during or at the and of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity for show cause against it, before orders are passed by the authority competent to terminate the employment." if the test of 'industry' laid down by Sinha, CJ was to be applied, every termination of a probationer made by following the rule and conducting an inquiry would become punitive. The 'industry test' (as pointed out by Krishna Iyer, J. in Samsher Singh's case broken down. A new test had to invented. Therefore Shah, J. (as he then was) laid down a new test which required that one should look into "object or purpose or the inquiry" and not merely hold the termination to be punitive merely because of an antecedent industry. J.C. Shah, J (as he then was) said:
"Whether it amounts for an order of dismissal depends upon the nature of the inquiry, if any, the proceedings taken therein and the substance of the final orders passed on such inquiry."
21. The learned Judge pointed out that the employed being a probationer, "the inquiry against the respondent was for ascertaining whether he was fit to be confirmed." His Lordship pointed out that this inquiry was not of the same nature as an inquiry into charges of misconduct, negligence, inefficiency or other disqualification. On the facts of the case, the termination of a probationer was upheld inasmuch as the purpose of the inquiry was to find out if the employee could be confirmed. The purpose of the inquiry was not to find out if he was guilty of any misconduct, negligence, inefficiency or other disqualification.
22. We then come to the third case decided by the Constitution Bench in Madan Gopal vs State of Punjab (AIR 1963 SC 5312. Here Shah, J. (as he then was), applied the same principle laid down earlier by him out in this case he held the order was punitive. That was a case of a temporary employee. There was a report of the Settlement Officer about the 'misconduct' of the employee and the termination was based on the said report. It was, therefore, held that though the order of termination was an order simpliciter still the Court could go behind the same and further if the foundation was the finding as to misconduct, then the order was punitive. The termination order was quashed, even though the employee participated therein because the statutory procedure for a regular departmental inquiry was not followed. Emphasis was again made on the "purpose of the inquiry". The distinction between the earlier case and this case was that while in Ram Narayan Das' Case, the inquiry was made to find out if the probationer could be continued and confirmed and was, therefore, not punitive, the position in the Madan Gopal's case was that the inquiry by the Settlement Officer was to find out if the employee was guilty of misconduct. In fact the termination order was based on the inquiry held behind his back and was held to be punitive. In Ravindra Chandra vs. Union of India (AIR 1963 SC 1552), being a case of a probationer to whom Rule 55-B of the Central Rules applied, Wanchoo J. (as he then was) upheld the order on the ground that the limited purpose of the inquiry was to find out whether he could be 'retained or not' in the service. In other words, the inquiry was not with a view to see if the employee had misconducted in his duties. This case was similar to Ram Narayan Das case.
23. The theory of 'object of the inquiry' was further emphasised by the Constitution Bench in Jagdish Mitter vs. Union of India. [AIR 1964 SC 449]. That was a case of a temporary employee. The discharge from service was by way of an order 'simpliciter'. But there, an inquiry was held and the termination order was based on it as it stated on its face that it was 'found undesirable' to retain the employee and hence his services were being terminated. The order was held to be punitive on its face and was quashed. Gajendragadkar, J. (as he then was) discussed the earlier cases and held that in every case the purpose of the inquiry was crucial. If the inquiry was held 'only for the purpose of deciding whether the temporary servant should be continued or not, it could not be treated as punitive and that the motive operating in the mind of the authority was not relevant. But "the from in which the order terminating the service is expressed will not be decisive." It was held that "what the Court will have to examine in each case would be, having regard to the material facts existing upto the time of discharge, is the order of discharge in substance one of dismissal". Therefore, the 'form' was not of importance but the 'substance' was."
Learned counsel for the petitioner has also relied upon the judgment and order dated 16.09.2010 passed by this Court in Writ-A No. 44053 of 2099 (Abdul Kalam & others Vs. State of U.P. & others) for ready reference the observation made is quoted below:-
"Heard learned counsel for the petitioners and learned Standing Counsel. Through this petition, the petitioners have challenged the orders dated 16.8.2009, inter alia, on the ground that without holding any enquiry services of the petitioners were terminated.
Learned counsel for the petitioners submits that even otherwise if the charge against the petitioner is accepted, then the punishment which has been awarded to the petitioners is too harsh and in fact even after holding the enquiry, the said punishment could not have been awarded against the petitioners. It is also submitted that the charge on account of which services of the petitioners have been terminated is that the petitioners have not attended the flag hoisting ceremony in the Police Line whereas they have appeared in the Collectorate before the District Magistrate to attend the aforesaid ceremony. Learned counsel submits that these facts have not been investigated on account of the fact that no enquiry was held although the circumstances of the case do not indicate that holding of enquiry was not necessary. Further submission is that where the holding of enquiry is not possible or permissible, such nature of order can be passed.
Learned Standing Counsel has filed counter affidavit in which it has been stated that non participation in the flag hoisting ceremony on 15.8.2009 was a serious matter and it was against the national morale and therefore, the authorities have committed no illegality in terminating the services of the petitioners.
Having heard learned counsel for the parties, I find that there was ample evidence available and there was also more than enough justification on the part of the petitioners to have not presented themselves in Police Line.
Petitioners' contention is that they appeared and were very much present on the fateful day i.e. 15.8.2009 before the office of the District Magistrate as they are Collectorate employees and at no point of time information was given to them to report in Police Line. Even otherwise, it is to be taken note that charge which has been levelled against the petitioners is not of such a grave nature where the services of the petitioner could have been terminated. The question of holding enquiry in such circumstances was incumbent upon the opposite parties and they have committed grave error in terminating the services of the petitioners without holding any enquiry.
Reliance has been placed by the learned counsel for the petitioners upon the judgments rendered in the case of Lalloo Singh v. State of U.P. and others, [2007 (10) ADJ 36] and Constable 703 Keshav Nath Rai v. State of U.P. and another, (2009) 1 UPLBEC 914.
In the aforesaid cases, it has been held that the authorities ought to proceed by holding of enquiry before terminating the services of the petitioners. In these circumstances, the impugned orders appear to be wholly illegal and the writ petition deserves to be allowed.
The writ petition is accordingly allowed. A writ in the nature of certiorari is issued quashing the orders dated 16.8.2009. The disciplinary authority, if he so desires, may hold disciplinary proceedings as contemplated under law."
Learned Standing Counsel has opposed the contention of the petitioner and argued that the petitioner was appointed on 10.05.2003 as temporary Class-IV employee in Vishesh Suraksha Bal and the State Government vide order dated 21.01.2004 had closed the Department and the Police Headquarter, Allahabad vide order dated 20.02.2004 transferred 53 class-IV employees including the petitioner to Intelligence Department in excess of vacancy in Security Branch, Intelligence Department. He has also contended that the status of the petitioner was temporary Class-IV employee and not permanent employee as claimed by the petitioner and his services had to be governed as per provisions of U.P. Temporary Service (Termination of Service), Rules 1975. He further stated that the petitioner alongwith 40-50 other employees in most illegal manner and unauthorized manner were found using unparliamentary languages towards his officers as well as indulging in manhandling in the Common Hall of Darul Shifa and for this very conduct an FIR had been lodged as Case Crime No. 685 of 2009 under Sections 109, 143, 188, 353, 419, 420, 504 IPC. With the said conduct the petitioner has lowered the prestige of the Department and the same was an act of indiscipline and the criminal proceedings are also pending against him and in this back ground there was no need to give any opportunity or requirement of any disciplinary inquiry in this regard. The services of the petitioner were covered under the rules of 1975 and only simpliciter was required.
I have heard the rival submissions advanced by the learned counsel for the parties and perused the record.
It transpires from the record that an advertisement was made in the daily newspaper on 31.03.2003 by which an application had been invited by the department for Class-IV post (orderly-cum-peon).
A bare perusal of cause 3 of the advertisement, clearly reflects that the appointment was substantive in nature and the service conditions were to be governed by the provisions of class-iv employees service regulation of 1975. The record clearly indicate that the petitioner was appointed on 10.05.2003 and he was drawing regular salary. The salary slip has been brought on record and the department known as "Visesh Suraksha Bal" was closed down by the State Government and subsequently, the Police Headquarter vide order dated 20.02.2004 had transferred 53 class-IV employees including the petitioner to the Intelligence Department. The transfer and posting dated 20.02.2004 has also been brought on record through Annexure CA-I to the counter affidavit.
It is relevant to mention at this stage that the impugned disengagement order of the petitioner has been passed taking into shelter of U.P. Temporary Service (Termination of Service), Rules 1975 and admittedly no opportunity was afforded to the petitioner while removing him from department. The material on record also give clear cut indication that the petitioner was falsely implicated in the FIR dated 12.07.2009 and the present termination order has been passed on 14.07.2009 just after two days. It is clear from the impugned order that no averments were made regarding his previous conduct but the plea has been taken in the counter affidavit that the conduct of the petitioner was not satisfactory and previously also he had been punished and his 20 days wages were deducted due to his unauthorized absence twice and adverse entry was also recorded in his character roll in the year 2008. These material clearly indicate that the services of the petitioner had always been governed against substantive post and time to time disciplinary action has also been taken against the petitioner.
In the counter affidavit, it has also been stated that the petitioner alongwith 40-50 other employees in most illegal and unauthorized manner were found using unparliamentary languages against superior officers while making protest and were also indulged in manhandling at the Common Hall of Darul Shifa at Lucknow. For this very conduct, the FIR was also lodged and due to the said conduct/protest the prestige of the Department was lowered and same was gross indiscipline and due to this reason there was no occasion to give any opportunity or to show cause. It has also been submitted by the petitioner counsel that nothing has happened in the said criminal proceeding, but actually this was sole reason behind his termination.
A bare perusal of the impugned order dated 14.07.2009, it is clear that the opposite party had taken shelter of U.P. Temporary Service (Termination of Service), Rules 1975 which provides for disengagement after giving one month's salary in lieu of notice. Admittedly, in the present matter, no departmental enquiry had been made and further no opportunity was afforded to the petitioner prior to the passing of the impugned order. Though the order of disengagement is very innocuously worded, but after scrutiny it is clear that the petitioner had been punished due to lodging of an FIR on 12.07.2009 and immediately vide order dated 14.07.2009, he had been removed from the department.
It is well settled principal that both the disciplinary proceeding and criminal proceeding are two separate proceedings and both may go on simultaneously. The detailed guideline has been given by the Apex Court in the case of Capt. M Paul Anthony vs. Bharat Gold Mines Ltd., reported in 1999 (82) FLR 627, after considering various decisions of the Apex Court, in paragraph 20, has formulated certain parameters with regard to departmental proceedings and the proceedings in a criminal case, which reads as under:-
"20. The conclusions which are deductible from various decisions of this Court referred to above are:-
(i)Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously though separately.
(ii)If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii)Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the chargesheet.
(iv)The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings, but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v)If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
In the case of State Bank of India and others vs. R.B Sharma, reported in (2004) 7 SCC 27, the Apex Court, in paragraph 8, 9, 10 and 11, held as follows:
"8. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act 1872 (in short the 'Evidence Act'). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the department enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.
9. A three-judge Bench of this Court in Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Ors., reported in (1997 (2) SCC 699) analysed the legal position in great detail on the above lines.
10. The aforesaid position was also noted in State of Rajasthan v. B.K. Meena, reported in (1996 (6) SCC 417).
11. There can be no straight jacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending."
In the case of State of Rajasthan vs. B.K. Meena, reported in (1996) 6 SCC 417, the Apex Court, in Paragraphs 14 and 17, has observed as follows:
"14. It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. and Tata Oil Mills is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be - and should not be delayed unduly. So far as criminal cases are concerned, it is well- known that they drag on endlessly where high officials or persons holding high public offices involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality inspite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above."
In the present matter, even though, the impugned order does not talk about any preliminary inquiry or full fledged departmental enquiry but the contents of the counter affidavit clearly indicates that the foundation and motive were there to remove him from service and it is well settled law that it is permissible for the Court to go behind the order and to find out whether the order is punitive in nature or not.
In the present matter, even though there was no preliminary inquiry, simple order of termination by giving one month's notice has been passed, various reasons have been mentioned in the counter affidavit which also indicate that the answering respondents were determined to terminate the services of the petitioner on account of his participation in protest. The same is punitive in nature and violates the principles of natural justice.
The Hon'ble Supreme Court in the case of Radhey Shaym Gupta Vs. U.P. State Agro Industries Corporation Ltd. and another (supra) has considered the relevant issue in paragraph No. 11, the same is quoted below:-
"11. Now, there are two lines of cases decided by this Court which deal with the question in issue. In certain cases of temporary servants and probationers, this Court has taken the view that if the experts inquiry or report are the motive for the termination order, then the termination is not to be called punitive merely because principles of natural justice have not been followed. On the other hand. there is another line of cases where this Court has held that the facts revealed in the inquiry are not the motive but the foundation for the termination of the services of the temporary servant of natural justice have not been followed, and such orders are to be declared void. This Court has held that for finding out whether a given case falls within either of these two categories, it is permissible for the High Court or Administrative Tribunal to go behind the order and look into the record of the proceedings, the antecedent and attendant circumstances culminating in the order of termination."
The respondents have not conducted the enquiry, which is much less according to the procedure prescribed. Reliance has also been placed by the petitioner in this regard on the judgment of this Court in Radhey Shyam Pandey Vs. The Chief Secretary, State of U.P. & others, (2001) 2 UPLBEC 1976 in which the order of dismissal was held to be not justifiable. It was held that-
"No specific date, time and place of Inquiry was fixed. Oral and documentary evidence against the petitioner should have been adduced in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. A dismissal order is a major punishment having serious consequences and hence should be passed only after complying with the rules of natural justice. Since in the present case no regular and proper Inquiry was held nor was subsistence allowance paid, hence in these circumstances, it is clear case that the petitioner had not been afforded a fair opportunity much less a reasonable opportunity to defend himself that has resulted in violation of principle of natural justice and fair play. The ex parte inquiry is illegal and the order of dismissal dated 27.3.2001 is quashed. In the circumstances, the writ petition of the petitioner is allowed."
In JT 1993 (3) SC 617 D.K. Yadav Vs. M/s J.M.A. Industries Ltd, the Apex Court in Para 13 & 14 held as under:-
"13. In Delhi Transport Corpn. v. D. T. C. Mazdoor Congress and Ors, [1991] Suppl. 1 SCC 600 this court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Arts. 14 and 21 etc. All matters relating to employment include the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the constitution and the rules made under the provisions of the constitution and the rules made under proviso to Art. 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Part III and IV of the Constitution. Art. 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Arts. 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of natural justice is an integral part of the guarantee of equality assured by Art. 14. Any law made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of' natural justice. Arts. 14 strikes at arbitrary action. It is not the form of the action but the substance of the order that is to be looked into. It is open to the court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the affect thereof is the end result.
14. It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D. T. C. v. D. T .C. Mazdoor Congress and Ors. (supra) the constitution bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without enquiry offended Art. 14. The order terminating the service of the employees was set aside.
In the aforementioned facts and circumstances of the case, it is apparent that there is gross violation of principles of natural justice, neither any preliminary inquiry nor any departmental enquiry had been initiated and the answering respondents in the garb of provision of U.P. Temporary Service (Termination of Service), Rules 1975 had treated the petitioner as temporary employee, which is not tenable and contrary to the records and unsustainable in the eyes of law and accordingly the impugned termination order dated 14.07.2009 passed by respondent No. 3 (Annexure No. 1 to the writ petition) is set-aside.
In the result, the writ petition succeeds, and is allowed. No order as to costs.
Order Date :-01.4.2014 Jaswant