This special appeal is directed against the judgement of a learned Single Judge dated 10 April 2013 by which a petition under Article 226 of the Constitution filed by the appellant to challenge an order of termination from service has been dismissed.
2. The appellant was appointed by the second respondent in the Directorate of Prosecution as an Orderly on a temporary basis by a letter dated 24 February 1987. A charge sheet was issued to the appellant on 29 January 2002 stating that on 18 December 2001, he was assigned duties to the Camp Office of the Director General. It was alleged that the appellant had willfully not complied with the administrative direction as a result of which he had displayed gross indiscipline and breach of directions. A memo setting out inter alia the direction dated 18 December 2001, the finding contained in the preliminary inquiry dated 24 December 2001 and a list of witnesses by which the charge was to be established was furnished together with the charge sheet. A regular departmental inquiry was convened. On 20 March 2002, the Inquiry Officer submitted his report to the Director General. The inquiry report contained a detailed analysis of the evidence which was produced during the course of inquiry. The Inquiry Officer concluded that the appellant had willfully not remained present when he was directed to report to the residence-cum-camp office of the Director General on 20 December 2001. The appellant was held to be guilty of misconduct. Thereafter, upon the receipt of the inquiry report, the second respondent passed an order dated 3 April 2002 purportedly in exercise of the powers conferred by The Uttar Pradesh Temporary Government Servants (Termination of Services) Rules, 1975, terminating the services of the appellant on the ground that in view of his indiscipline and the breach of administrative directions, the services of the appellant were no longer required.
3. The appellant filed a writ petition under Article 226 of the Constitution. Before the learned Single Judge, the specific contention which was raised by the appellant was that the termination was penal in nature on the ground of indiscipline and hence an order passed under Rule 3 (1) of the 1975 Rules was unlawful. The appellant submitted that the Supreme Court, while considering the provisions of Article 311 of the Constitution has held that the safeguards available to permanent government servants thereunder are equally available to temporary government servants.
4. The learned Single Judge dismissed the petition holding that the order which was passed by the competent authority was not cryptic but stated that the services of the appellant were being terminated on the ground of indiscipline and non compliance of the order of the higher authorities. The learned Single Judge held as follows:
"In the present case, the order is not cryptic. The order has stated that his services are being terminated on the ground of indiscipline and non-compliance of the orders of higher authorities. It need not be reminded that petitioner's services were not regularized. His services were dispensed with under Uttar Pradesh Temporary Government Servants (Termination of Services) Rules, 1975. Still an inquiry was conducted and a show cause notice in the form of charge-sheet along with allegations was issued to him in which charges were specifically mentioned. Even the evidence which was to be used against him has been annexed as a separate charge sheet. The officials whose evidence is to be used against him have also been enumerated. Petitioner has submitted his reply. Along with reply he has also given the names of the persons whom he wanted to use as his witness. The inquiry has been completed thoroughly. In such a situation it can not be said that the petitioner could not know as to on what grounds his services have been terminated. The order is a formal communication but prior to it a detailed inquiry was held and the petitioner has fully participated in the inquiry, hence the judgements relied upon by the petitioner are not applicable in this case."
5.The learned counsel appearing on behalf of the appellant submits that in the present, the order of termination is penal and stigmatic since it was preceded by a full fledged disciplinary inquiry. A charge sheet was issued, an inquiry was convened, evidence was adduced in the inquiry and a finding of misconduct was arrived at by the Inquiry Officer in his report, yet the competent authority has purported to exercise powers under the 1975 Rules under which the services of a temporary employee can be dispensed with by a notice simplicitor. In the present case, it is urged that the termination is clearly unlawful because the foundation of the order is an allegation of misconduct and hence, the order was of penal consequences.
6.On the other hand, learned counsel appearing on behalf of the respondents has supported the order of the learned Single Judge.
7.Rule 3 (1) of The Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 provides as follows:
"3(1). Notwithstanding anything to the contrary in any existing rules or orders on the subject, the services of a Government servant in temporary service shall be liable to terminate at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant."
8.Rule 3(1) contemplates that the services of a temporary government servant can be terminated at any time by a notice in writing. The period of notice under sub-rule (2) of Rule 3 is to be one month.
9.The law on the subject has now been settled by a series of judgements of the Supreme Court. In Samsher Singh vs. State of Punjab and Anr1, a Bench of seven learned Judges of the Supreme Court held, while dealing with the case of a probationer that the authority may, in certain cases, be of the view that the conduct of the probationer would be such as to result in a dismissal on an inquiry but the authority may not hold an inquiry and simply discharge the probationer in order to enable him to pursue his vocation elsewhere. However, if on the other hand the probationer is faced with an inquiry on a charge of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) of the Constitution, the probationer can claim protection. The mere fact that an inquiry was held is not always conclusive. What is decisive is whether the order is really by way of punishment. For instance, an inquiry to assess the suitability of a probationer for being confirmed in service can be held and if the authority comes to the conclusion that the probationer is not suitable for being confirmed, an order of termination would not be regarded as punitive in nature. These principles were applied by the Supreme Court in the context of a termination of an ad hoc or a temporary government servant in State of Uttar Pradesh and Anr. vs. Kaushal Kishore Shukla2. The Supreme Court held as follows.
"A temporary government servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary government servants. A temporary government servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary government servant. If it decides to take punitive action it may hold a formal inquiry by framing charges and giving opportunity to the government servant in accordance with the provisions of Article 311 of the Constitution. Since, a temporary government servant is also entitled to the protection of Article 311(2) in the same manner as a permanent government servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now well settled that the form of the order is not conclusive and it is open to the court to determine the true nature of the order..."
10.In a decision in Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and Anr3, the Supreme Court held that the termination of the services of a temporary servant on the basis of an assessment that his work is not satisfactory will not be punitive since the assessment that the work is merely the motive and not the foundation of the order. The situation would be different where the termination is preceded by an inquiry and where evidence is led and a finding of misconduct of a definitive nature is arrived at behind the back. The Supreme Court held as follows:
"But in cases where the termination is preceded by an enquiry 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 the principles of natural justice inasmuch as the purpose of the enquiry 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 employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee - even though 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."
11.Consequently, where an inquiry has been held not for the purposes of establishing a misconduct but for the purposes of assessing the suitability of a temporary government servant, an order of termination simplicitor would not be contrary to law. In many cases, the employer may hold a preliminary inquiry and thereafter terminate the services of a temporary government servant. The object of a preliminary inquiry is not to establish misconduct and the termination would not be regarded as punitive in nature.
12.These principles were revisited in Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences4. The Supreme Court formulated the test to determine whether an order of termination is punitive as follows:
"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 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."
13.The Supreme Court reiterated that an employer is entitled to satisfy itself of the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of the allegations that may have been made about the employee. In that case, it was held that charge sheet merely details the allegations to enable the employer to deal with them effectively and the report of the inquiry had found nothing than the inability to meet the requirements of the post. Hence, none of the three factors for holding the termination in sum and substance to be punitive were found to be present.
14.In the present case, the facts are not in dispute. A regular departmental inquiry was held against the appellant. A charge sheet dated 29 January 2002 was issued. This was not a preliminary inquiry since admittedly a preliminary inquiry had already been held in this case on 24 December 2001. A Specific charge of misconduct was leveled against the appellant. The charge sheet contained inter alia a list of witnesses. The inquiry was thereafter pursued in the course of which evidence was received. The Inquiry Officer submitted his report dated 20 March 2002 to the Director General holding that the charge of misconduct had been established. There is a specific finding of misconduct in the report of the Inquiry Officer. An order of termination dated 3 April 2002 has been passed invoking the provisions of the 1975 Rules. This was clearly not a termination simplicitor within the meaning of rule 3 (1) of the 1975 Rules.
15.As a matter of fact, it must be mentioned here that even the impugned order of the learned Single Judge proceeds on the basis that an inquiry was conducted, preceded by a charge sheet, evidence was received and a finding of misconduct was arrived at.
16.In these circumstances and for the reasons which we have indicated above, we are of the view that the termination of services of the appellant could not have been effected by invoking the provisions of the 1975 Rules. This was not a termination simplicitor but a termination for misconduct, preceded by a full fledged departmental inquiry based on a charge of misconduct which was found to be established in the departmental inquiry. In the circumstances, the impugned order dated 3 April 2002 which was challenged before the learned Single Judge was unsustainable. The learned Single Judge has, in our view, completely failed to take cognizance of the governing position of law as laid down in the judgements of the Supreme Court which indicate that though the appellant was a temporary government servant and it was open to the competent authority to dispense with the services of the appellant simplicitor under Rule 3 (1) of the 1975 Rules, the termination order dated 3 April 2002 is on a charge of misconduct and the invocation of the 1975 Rules was clearly unlawful. The order of termination dated 3 April 2002 is punitive in nature.
17.We are, accordingly, of the view that the order of the learned Single Judge is unsustainable and the dismissal of the appellant was improper. The petition would have to be, accordingly, allowed by setting aside the order of termination dated 3 April 2002.
18.On the question of back wages, it is now well settled that there is an element of discretion which vests in the Court in regard to the quantum of back wages that must follow the setting aside of an order of termination.
19.Having due regard to the facts and circumstances of the case, we order while setting aside the order of the learned Single Judge dated 10 April 2013 and the order of termination dated 3 April 2002 that the appellant would be entitled to his back wages which are quantified at 50%.
20.The special appeal is, accordingly, allowed in these terms. There shall be no order as to costs.