This writ petition has been filed for issuing a writ of certiorari quashing the order dated 30.06.2008 passed by the Executive Engineer, Irrigation Construction Division, Agra by which the petitioner's service has been terminated under the U.P. Temporary Government Servants (Termination of Service ) Rules, 1975 (hereinafter called as Rules of 1975). It appears, the petitioner was appointed as Runner after following the procedure as contained in Group 'D' Employees Service Rules 1985 First Amendment Rules 1986 after advertising the vacancy in "Dainik Jagran Newspaper". The petitioner's appointment letter dated 07.11.2007 shows that the petitioner's appointment was made while fulfilling the back log quota, on temporary basis, with the rider that the service of the petitioner can be terminated at any time after one month notice or in lieu of notice, one month salary. It appears that for certain conduct which were contrary to the Government Servant Conduct Rules, the petitioner's service was terminated by the respondent no.3 vide order dated 30.06.2008, served on 02.07.2008.
Sri Adarsh Bhushan, learned counsel appearing for the petitioner submitted that although it is settled law that temporary Government Servants have no right to the post and their services can be terminated at any time, but simultaneously it is also equally settled that if the service is terminated on account of misconduct of an employee then without taking recourse to prove misconduct as contemplated under the relevant rules governing the field namely U.P. government Servant (Discipline and Appeal) Rules, 1999, the punishment for misconduct cannot be inflicted, that too major penalty of termination from service. In his submissions the order has been passed under Rules of 1975, therefore the same cannot be sustained in the eye of law. In support of his contention he has placed reliance upon the judgement of the Apex Court in Union of India (UOI) and Ors Vs Mahaveer C. Singhvi in Special Leave Petition (Civil) No. 277702 of 2008 decided on 29.07.2010, wherein it has been held that if a discharge is based upon misconduct or if there is a live connection between the allegations of misconduct and discharge, then the same, even if couched in language which is not stigmatic, would amount to a punishment for which a departmental enquiry was imperative.
On the other hand learned Standing Counsel appearing for the State respondents has vehemently contended that the temporary government servants have no right to the post and their service can be terminated at any time without any notice. In his submissions the impugned order is not stigmatic, therefore, no infirmity can be attached with the impugned order of termination.
I have heard Sri Adarsh Bhusan, learned counsel for the petitioner and learned Standing Counsel for the respondents and perused the record.
The case of the petitioner is that the petitioner's service has been terminated for certain charges i.e., giving wrong information deliberately to the superior officers, telling lie, exertion of undue pressure in the Government work, Political pressure and making wrong complaints, which according to the learned counsel for the petitioner is baseless and mentioning of that in the impugned termination order is not only stigmatic but it amounts to punishment.
For testing this argument of learned counsel for the petitioner, it would be necessary to narrate few lines of termination order dated 30.06.2008 and the stand of the respondents in para 11 of the counter affidavit, which is reproduced herein under:
Relevant portion of order of termination 1- Jh lkseukFk] juj }kjk vius mPpkf/kdkfj;ksa dks xyr lwpuk nsuk vkSj tkucw> dj >wB cksyus ds dkj.k jktdh; dk;ksZ esa O;o/kku mRiUu djuk rFkk jktdh; dk;ksZ dks u djuk ,oa jktuSfrd ncko Myokuk] [email protected]/kdkfj;ksa ds izfr >wBh f'kdk;r djuk] in ds vuq:i dk;Z ugha djukA Relevant extract from para 11 of the counter affidavit filed by the State - respondents.
2- ^^........;g fd fjV ;kfpdk ds izLrj 20 o 21 ,oa ;kfpdk ds leFkZu esa of.kZr fd;s x;s vk/kkj ftl izdkj ls dgs x;s gSa] furkUr vlR;] Hkzked o fujk/kkj gksus ds dkj.k mijksDr of.kZr rF;ksa ds ifjisz{; esa Lohdkj ;ksX; ugha gSaA tSlk fd mijksDr izLrjksa esa Li"V fd;k tk pqdk gS fd m0iz0 vLFkkbZ deZpkjh ¼lsok lekfIr½ fu;ekoyh&1975 esa fufgr O;oLFkk ds vUrxZr ;kph Jh lkseukFk] vLFkkbZ deZpkjh ds iwoZ dk;Zo`Rr ,oa vYi lsok vof/k ds nkSjku deZpkjh vkpj.k fu;ekoyh dk mYYak?ku ,oa tkucw> dj vuq'kklughurk ,oa dnkpkj ds QyLo:i mlds nks"k mtkxj gksus ij ;kph ds fo:) lsok lekfIr vkns'k lsok 'krksZa ds vuqlkj gh ikfjr fd;k x;k gSA** From the perusal of the order of termination as well as the stand taken by the State in paragraph no. 11 of the counter affidavit, it transpires that the petitioner's services have been terminated for his conduct against the Government Servant Conduct Rules, vuq'kklughurk (Indiscipline) and dnkpkj ('Misconduct' as defined in 'Advanced Learner's Hindi English Dictionary' by Dr. Hardev Bahri and in website 'www.shabdkosh.com') and that has been reduced in writing in the impugned termination order. It is well settled law that if a government servant is terminated or is removed or dismissed from the service for his misconduct, then the misconduct has to be proved in accordance with the rules governing the field, i.e., the Rules of 1999, so far as it relates to the petitioner. The penalty of termination of service is a major penalty in view of the Rule 3 of the 1999 Rules and for imposing the major penalty, the procedure has been prescribed under Rule 7 of the Rules, which requires the proper charge sheet and coupled with oral inquiry. For appreciation, the procedure contained in 1999 Rules is reproduced hereunder:
"7-Procedure for imposing major penalties- Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner :
(i)The Disciplinary Authority may himself inquiry into the charges or appoint an Authority Subordinate to him as Inquiry Officer to inquire into the charges.
(ii)The Facts constituting the misconduct on which it is proposed to take action shall be reduced in the from of definite charge or charges to be called charge -sheet. The charge-sheet shall be approved by the Disciplinary Authority.
Provided that where the Appointing Authority is Governor, the charge -sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department.
(iii)The charge farmed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet.
(iv)The charge Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence . He shall also be informed that in case he does not appear or file written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex-parte.
(v) The charge-sheet, along with the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government Servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner, the charge- sheet shall be served by publication in a daily newspaper having wide circulation :
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charge Government servant shall be permitted to inspect the same before the Inquiry Officer.
(x) Where the charged Government Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date the Inquiry Officer shall proceed with the inquiry exparte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government Servant.
(xi)The disciplinary Authority, if it considers if necessary to do so, may by an order appoint a Government Servant or a legal practitioner to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(xii)The Government servant may take the assistance of any other Government Servant to present the case on this behalf but not engage a legal practitioner for the purpose unless the presenting office appointed by the Disciplinary Authority is a legal practitioner of the disciplinary Authority having regard to the circumstance of the case so permits.
Provided that the rule shall not apply in following cases :
(i)Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge.
or
(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to held an inquiry in the manner provided in these rules; or
(iii) Where the Governor satisfied that, in the interest of the security of the state, it is not expedient to hold an inquiry in the manner provided in these rules."
From the perusal of Rule 7, it transpires that for imposing major penalty, a complete mechanism has been provided under the Rules and there are various pronouncements, namely, State of U.P. and another Vs. T.P. Lal Srivastava, 1997 (1) LLJ 831, Subash Chandra Sharma Vs. Managing Director and another, 2000 (1) U.P.L.B.E.C. 541, Salahuddin Ansari Vs. State of U.P. and others, 2008 (3) ESC 1667, Subash Chandra Sharma Vs. U.P. Cooperative Spinning Mills and others, 2001 (2) U.P.L.B.E.C. 1475, Laturi Singh Vs. U.P. Public Service Tribunal and others (Writ Petition No. 12939 of 2001 decided on 6.5.2005) and Dr. Subhash Chandra Gupta Vs. State of U.P., 2011 (8) ADJ 397, wherein it has held that the major penalty cannot be imposed without taking recourse to the provisions contained under the Rules for imposing major penalty.
Learned Standing Counsel appearing for the State - respondent has submitted that here, in the present case, the indisciplined behaviour, exertion of political pressure and the misconduct was the motive for terminating services of the petitioner and it was not the foundation, therefore, in view of the settled proposition of law, where the indisciplined act is a motive and not foundation, which led to termination of service, the inquiry is not necessary and the service could be terminated under the Rules of 1975.
I have considered the rival submissions and perused the order of termination and the stand taken by the respondent in the counter affidavit. From the perusal of which, I am of the definite opinion that the petitioner's behaviour, his conduct against the Government Servant Rules and his misconduct as alleged in the counter affidavit is the foundation and not the motive. Had it been a motive, there would have been an order simplicitor terminating the services, without mentioning all these things.
The apex Court in the case of State of Bihar and others Vs. Shiva Bhikshuk Mishra (1970) 2 SCC 871, Shamsher Singh Vs. State of Punjab and another, AIR 1974 SC 2192, Gujrat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896, Anoop Jaiswal Vs. Government of India and another 1984 2 SCC 369, Nehru Yuva Kendra Sangathan Vs. Mehbub Alam Laskar (2008) 2 SCC 479 has held that if a discharge is based upon misconduct or if there is a live connection between the allegations of misconduct and discharge, then the same, even if couched in language which is not stigmatic, would amount to a punishment for which a departmental enquiry was imperative. This decision has been followed in the case of Union of India and others Vs. Mahaveer C. Sindhia, reported in AIR (2010) 3 SCC 3492.
A Division Bench of this Court in the case of Paras Nath Pandey Vs. Director, North Central Zone, Cultural Centre, Allahabad, reported in 2008 Vol. (10) ADJ 283, after considering various pronouncements of the Hon'ble Supreme Court has observed as under:
"........ once it is evident that the termination simplicitor is founded on the alleged act of misconduct said to be proved by the authorities concerned, an inquiry giving due opportunity to the employee is must and in the absence of such an inquiry, a punitive termination cannot be sustained. It is not the case whether the authorities acted fairly or unfairly but the question is whether inquiry conducted by the authorities was in accordance with law or not and whether before recording a finding against an employee in respect to the alleged misconduct the employee was given adequate opportunity of defence."
In view of the foregoing discussions, I am of the view that the major penalty of termination imposed by the respondents is faulty for the reason that; for the misconduct, the services of the government servant cannot be terminated under the Rules of 1975 and if the termination is based upon the misconduct, then the procedure contained in Rule 7 of 1999 Rules, which are mandatory in nature, ought to have been followed.
In the result, the writ petition succeeds and is allowed. The impugned order dated 30.6.2008 passed by the Executive Engineer, Irrigation Construction Division, Agra is hereby quashed. The respondents are directed to reinstate the petitioner with 50% back wages within two months from the date of receipt of certified copy of the order of this Court. It may be observed that in case the respondents decide to hold disciplinary proceeding against the petitioner, they are at liberty to do so in accordance with law.
Order Date :- 8.02.2012 Amit Mishra