JUDGMENT Sudhir Agarwal, J.
1. Heard Sri Prakash Giri, learned Counsel for the petitioner and Sri A.K.Rai appearing for respondents.
2. The writ petition is directed against the order dated 13th December, 2003 passed by Commandant 145 Battalion Central Reserve Police Force, Nagpur, Maharastra terminating the service ' of the petitioner in exercise of power under Rule 5(1) of Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as '1965 Rules'). It is stated that the petitioner was appointed on the post of constable on 19.4.03 and during the course of training, a show cause notice was issued on 14.11.2003 and thereafter without any further notice, by means of impugned order, he has been terminated w.e.f. 13th December, 2003.
3. The respondents have filed counter affidavit wherein it is stated that during the period of training, the performance of the petitioner was not found satisfactory and therefore he was terminated in accordance with rules.
4. Heard learned Counsel for the petitioner and perused the record.
5. From the pleadings of the parties and submissions advanced, the admitted facts as brought on record are that after holding a selection for the post of Constable in Central Reserve Police Force (hereinafter referred to as 'CRPF' in short), a letter offering appointment on the post of Constable was issued to the petitioner requiring him to report on 3.4.2005 at CRPF Old Air Port, Pandila, Phaphamau, Allahabad, in case, he accepts 'the terms and conditions contained in the aforesaid letter, copy whereof is placed on record as Annexure-3 to the writ petition. The petitioner was offered temporary appointment and as per condition No. 13 contained in the aforesaid letter, his service could have been terminated in accordance with Central Civil Services (Temporary Service) Rules, 1965. The petitioner was to be treated on probation for a period of two years likely to be extended by the competent authority, and, on satisfactory completion of probation, he was liable to be made permanent. The petitioner reported and thereafter enlisted in CRPF on 6.4.2003 at GC-Nagpur as temporary Constable/G.D. in the pay-scale of Rs. 3030-4590. The letter of appointment was issued on 19.4.2003 by Additional D.I.G., CRPF, Nagpur. Clause 6 of the condition of appointment letter provides that the petitioner was to undergo a basic training at any training center of CRPF and in case, he is not found suitable at any stage, he was liable to be discharged. It appears while undergoing training, the respondents received some information of indiscipline on the part of the petitioner for which a preliminary enquiry was conducted wherein it was reported that the petitioner was in the habit of consuming Alcohol in Recruit Line. Consequently. A show-cause notice was issued on 14.11.2003. Since, the petitioner was temporary in service, respondents subsequently exercising power under Rule 5 of 1965 Rules terminated him.
6. The contention of the learned Counsel for the petitioner is that the allegation of indiscipline and consumption of liquor are the foundation on account whereof the impugned order of termination has been passed without holding any enquiry and affording opportunity to him. Therefore, the same is vitiated in law. He further contended that the respondents in the counter affidavit have repeatedly pleaded that the petitioner was reported to be guilty of indiscipline in the preliminary enquiry being in habit of consuming liquor and procuring the same after illegally scaling down campus premises, which was not in the interest of the service expected from a person who has just begun, i.e., during training. It is contended that in view of the pleadings in the counter affidavit, the foundation of the order of termination is evidently the alleged misconduct and therefore, termination is not a simplicitor but amounts to dismissal and is vitiated in law, since no departmental enquiry has been conducted against the petitioner.
7. In order to appreciate the aforesaid contention, the only question which has to be considered by this Court is whether the termination order dated 13.10.2003 can be said to be a dismissal in the garb of termination simplicitor founded on an alleged misconduct or not. For appreciation of this question, it would be appropriate to consider the termination order itself, which is reproduced as under:
OFFICE ORDER In continuation to this office notice even number dated 14.11.2003.
Notice for termination of service was issued to No. 031456586 RT Sunil Kumar Giri of this Unit under Rule 5(1) of Central Civil Service (Temporary Service) Rules 1965 on 14.11.2003. Accordingly his service hereby terminated with effect from the afternoon of 13.12.2003, i.e., expiry of one month period and also struck off strength from this Unit with effect from the same date 13.12.2003 (AN).
Sd.
A.M. Muhammed Commandant-145
8. A bare perusal shows it an order of termination simpliciter. It is also apparent from averments in Para 19 of the writ petition that show-cause-notice was issued to the petitioner with respect to his work and performance during training which was not found to be satisfactory Thus, it is evident that the petitioner has been terminated after assessment of his performance during training. Neither any stigma has been caused by making such aspersion in the order of termination nor attending circumstance preceding impugned order of termination leads to such conclusion. The petitioner has been terminated exercising power under Rule 5(1) of 1965 Rules, It would be appropriate to reproduce the relevant Rule as under:
Rule 5(1)(a):-The service of a Government Servant who is not Quasi permanent service shall be liable to be terminated at any time by a notice in writing given either by the government servant to the appointing authority or by the appointing Authority to the Government Servant.
(b) :-The period of such notice shall be one month; provided that the services of any such Government servant may be terminated forth with and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he is drawing them immediately before the termination of his service, or as the case may be for the period by which such notice falls short of one month.
9. It is not disputed that so long as the petitioner was not confirmed, he could have been terminated under 1965 Rules. When the order of termination is couched in plain words without casting any aspersion upon the employee, it cannot be made or read to be a termination by way of punishment by looking to any background. The golden rule in normal case is to consider the order of termination itself to find out its nature. From the bare perusal of the impugned order, it cannot be said to be stigmatic or founded on any alleged misconduct. Merely if a preliminary enquiry was conducted to assess the work and performance of the employee, it cannot be said that the termination is founded on alleged misconduct. The question as to when an order is termination simplicitor or by way of punishment founded on alleged misconduct has been considered by the Apex Court in Dipti Prakash Banerjee v.
S0 atvendra Nath Bose AIR 1999 SC 983 and in para 21 of the judgment the distinction has been explained as under:
If findings were arrived at in an enquiry 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 enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry 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 enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtf0ul about securing adequate evidence. In such a circumstance, the allegations 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 simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a 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 simplicitor or on motive on the ground of unsuitability to continue in service. (para 9) (emphasis added) When the factual scenario of the present case is considered in the background of legal principles set out above, the inevitable conclusion is that the High Court was not justified in interfering with the order of termination. (para 10)
10. Similar situation arises in the case of State of Punjab v. Balbir Singh 2002(1) SCC 743. The order of discharge mention the words "unlikely to prove an efficient police officer." Further before passing the aforesaid order of discharge it appears that Shri Balbir Singh, who was found to have consumed Iiquor and misbehaved with a lady constable was medically examined and thereafter discharge order was passed. The appeal, which was filed before the Deputy Inspector General of Police, was rejected and while rejecting the appeal, he referred to the aforesaid facts and stated that the discharge order was correct. Shri Balbir Singh challenged the order of discharge on the basis of the averments contained therein as well as in the order of the Deputy Inspector General of Police. The Hon'ble Apex Court upholding the aforesaid order of discharge held as under;-
In the present case, order of termination cannot be held to be punitive in nature. The misconduct on behalf of the respondent was not the inducing factor for the termination of the respondent. The preliminary enquiry was not done with the object of finding out any misconduct on the part of the respondent, it was done only with a view to determine the suitability of the respondent within the meaning of Punjab Police Rule 12.21. The termination was not founded on the misconduct but the misbehaviour with a lady constable and consumption of liquor in office were considered to determine the suitability of the respondent for the job, in the loight of the standards of discipline expected from police personnel, (para 17)
11. In Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. and Ors. after following Dipti Prakash Banerjee (supra) and Pavanendra Naravan Verma v. Saniav Gandhi Post Graduate Institute of Medical Sciences and Anr. , the Hon'ble Apex Court has observed as under:
From a long line of decisions it appears to us that whether on order of termination is simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a 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 simplicitor jailing in one or the other category, based on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of unsuitability to continue in service. If the form and language of the so called order of termination simplicitor of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simplicitor or punitive. In cases where the services of a probationer are terminated by an order of termination simplicitor and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simplicitor, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simplicitor to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service as he is in reality removed from service on the foundation of his misconduct. (Para 11)
12. Even otherwise in some case when the order of termination contains the words "unsatisfactory work and conduct" or factum pertaining to suspension etc. the question was raised as to whether such order is stigmatic in nature or not. In Dipti Prakash Banerjee (Supra), the order of termination mentions the word 'unsatisfactory work and conduct'. After review of entire case-law, the Apex Court did not find the aforesaid order to be stigmatic and held as under:
At the outset, we may state that in several cases and in particular in State of Orrisa v. Ram Narain Dass it has been held that the use of the word 'unsatisfactory work and conduct' in the termination order will not amount to a stigma
13. Similarly, in Pavanendra Narayan Verma (Supra), it was mentioned that 'the work and conduct was not found satisfactory'. Following the Dipti Prakash Banerjee (Supra), the Apex Court in Pavanendra Narayan Verma held as under:
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 (para 31).
14. In Dhananjay v. Chief Executive Officer, Zila Parishad, Jaina 2003 (96) FLR 1002 mention of the word "suspension' in the order of termination was not held to be stigmatic or punitive. In State of U.P. and Ors. v. Ram Bachan Tripathi 2005 (106) FLR 1214 the Hon'ble Apex Court considering as to when the order of termination can be said to be stigmatic held as under:
We shall first examine the plea relating to the stigma. Usually a stigma is understood to be something that is detraction from the character or reputation of a person. It is blemish, imputation, a mark or label indicating a deviation from a norm. (Para 6) Mere description of a background fact cannot be called as stigma. In the termination order it was merely stated that the show cause notices were issued and there was no response. This can by no stretch of imagination be treated as a stigma as observed by the Tribunal and the High Court.(Para 7)
15. In Raiasthan State Road Transport Corporation and Ors. v. Zakir Hussain the Hon'ble Apex Court following its earlier judgment in the case of State of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla has held as under:
In State of Uttar Pradesh and Anr. v. Kaushal Kishroe Shukla this Court has observed in Para 6 as under: "The High Court held that, the termination of respondent's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate. It is unfortunate that the High Court has not recorded any reasons for this conclusion. The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorized audit of the boys fund in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service. The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorized audit constituted adequate material to enable the competent authority to form the requisite opinion regarding the respondent's suitability for service. Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against on employee, the competent authority is satisfied that the employee is not suitable for the whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination. (Para 20) (emphasis added)
16. In Registrar, High Court of Gujarat and Anr. v. C.G. Sharma the Hon'ble Apex Court has held as under:
We are also satisfied, after perusing the Confidential Reports and other relevant vigilance filed etc. that the respondent is not entitled to continue as a judicial Officer. The order of termination is termination simplicitor and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of there was found to be unsatisfactory by the High Court during the period of probation. It was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simplicitor cannot be said to be violative of Articles 14, 16 and 311 of the Constitution of India. The law on the point is crystallized that the petitioner remains probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on the regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent services were deemed to have been continued on the expiry of the probation period, are misconceived.
17. Learned Counsel for the petitioner, however, has placed reliance on the Apex Court Judgment in Chandra Prakash Shahi v. State of U.P. and Ors. 2000(2) UPLBEC 1961 (SC). However, in my view, the aforesaid judgment does not help at all. It has been held therein that the Court can lift veil of an innocuously worded order to look at the real facet of the order and to find out whether it is innocent as worded or not. The mere fact that negligence or misconduct may have been the factors for inducing the government to terminate service of a temporary employee does not mean that it is founded on misconduct. Para-11 of the judgment, which highlights this aspect is reproduced as under:
Now, it is well-settled that the temporary Government servants or probationers are as much entitled to the protection of to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary Government at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions 'of such service. The Courts can, therefore, lift the veil of an innocuously worded order to look at the real fact of the order and to find out whether it is as innocent as worded See: Parshotam Lal Dhingra v. Union of India . It was explained in this decision that sufficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee under the terms under the terms of the contract or under the statutory Service Rules. Regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make3 the order punitive unless the order was "founded" on those factors or other disqualifications.
18. In the present case, however, merely for the reason that a show-cause notice was issued to the petitioner or a preliminary enquiry was conducted, I am not inclined to hold that the order of termination, impugned in the writ petition is punitive in nature, since, the aforesaid material is only to aid & assist the authorities to form an opinion as to whether the petitioner should be continued in service or not. They possess power to terminate him simplicitor and have exercised the same under the Rules. Therefore, in my view, it cannot be said that the order impugned is stigmatic or founded on alleged misconduct and, therefore, vitiated in law.
19. The next question as to whether the reasons, if any, mentioned in the counter affidavit may be taken as constituting foundation rendering an order of termination as dismissal or removal or termination by way of punishment. It is also no more res-integra, since this aspect has been considered by Apex Court in Pavnanendra Narayan Verma (Supra) and in para 34 and 35 of the judgment, it has been held as under:
That an affidavit cannot be relied on to improve or supplement on 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 n 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....(para 34) 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 ajfidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination. (para35)
20. In view of law as laid down and discussed above, neither from the averments contained in the counter affidavit nor from the order of termination or show-cause notice, it can be said that the impugned termination is stigmatic in nature instead of termination simplicitor.
21. In the result, the writ petition lacks merit and is, accordingly, dismissed without any order as to costs.