Hon'ble Ajai Kumar Srivastava-I, J.
1. Heard Sri R.B.S. Rathaur, learned counsel for the appellant and Sri Gaurav Mehrotra, learned counsel representing the respondent No.1.
2. This intra-court appeal has been filed challenging the judgment and order dated 02.05.2012 passed by the learned Single Judge whereby the writ petition filed by the appellant/petitioner challenging the order dated 13.09.2000 terminating his services on the post of driver at District Judgeship, Shravasti was dismissed.
3. Learned counsel for the appellant has vehemently argued that in this case though there was overwhelming material available to suggest that the order dated 13.09.2000 was punitive in nature, however, learned Single Judge by ignoring the said material has erred and has thus wrongly dismissed the writ petition. The ground of challenge to the order of termination from service dated 13.09.2000, according to the learned counsel appearing for the appellant, was that though apparently the said order was an order of termination simplicitor, however, under the facts and circumstances brought before the Writ Court, learned Single Judge ought to have lifted the veil to come to correct conclusion in relation to the issue as to whether the impugned order was an order of termination simplicitor or punitive.
4. Drawing attention of the Court to various documents including the two reports submitted by the learned Chief Judicial Magistrate dated 02.09.2000 and 08.09.2000 and also to the notice dated 11.09.2000 issued by the District Judge to the appellant/petitioner, it has been contended by learned counsel for the appellant that the said material amply demonstrates that in fact the order dated 13.09.2000 was founded on the said material, which alleged certain misconduct on the part of the petitioner/appellant and as such the learned Single Judge has not correctly appreciated the aforesaid facts and the law applicable thereto.
5. Sri Rathaur, in support of his submissions, has also drawn attention to the averments made in para-29 of the counter affidavit filed before the writ Court by the respondents where it has been stated that the order dated 13.09.2000 was passed by the Competent Authority after the petitioner was found guilty in the departmental inquiry and accordingly the order has been passed by the Competent Authority in accordance with the provisions of law.
6. Learned counsel for the appellant, in fact, has stated that as a matter of fact the respondents in this case had admitted that the order dated 13.09.2000 was a result of departmental inquiry wherein the petitioner/appellant was found guilty and since the said alleged department inquiry has not been held in accordance with law and the petitioner/appellant has been held guilty, the order dated 13.09.2000, even as per the admission of the respondents, is punitive in nature and thus is violative of Article 311 of the Constitution of India.
7. Sri Rathaur, learned counsel for the appellant has relied upon the decision of the Hon'ble Apex Court in the case of Union of India and others vs. Mahaveer C. Singhvi, reported in (2010) 8 SCC 220 and has submitted that if it has been admitted by the respondents that the impugned order dated 13.09.2000 was a result of departmental inquiry conducted by them and the averments made in para-29 of the counter affidavit shall be constituted as admission of this fact by the respondents and accordingly the order dated 13.09.2000 cannot be said to be an order of termination simplicitor, rather it is punitive in nature.
8. He has further drawn attention to the Court to para-46 of the judgment in the case of Mahaveer C. Singhvi (supra) to state that in case the material relied upon by the Appointing Authority is the foundation of the order of termination, such order of termination cannot be termed to be an order terminating the services simplicitor; rather it would be an order punitive in nature and thus is not sustainable. The submission is that the facts as pleaded before the learned Single Judge in the writ petition clearly reveal that the reports dated 02.09.2000 and 08.09.2000 submitted by the Chief Judicial Magistrate coupled with the notice dated 11.09.2000 issued by the District Judge to the appellant/petitioner would in this case constitute the foundation of the order dated 13.09.2000 and as such the judgment rendered by the learned Single Judge is not sustainable. In support of his submission, he has also placed reliance upon the judgment of Hon'ble Apex Court in the case of Samsher Singh vs. State of Punjab and another reported in (1974) 2 SCC 831.
9. Per contra, Sri Gaurav Mehrotra, learned counsel representing the respondent No.1 has argued that in the facts and circumstances of the case, it, cannot, by any stretch of imagination, be said or inferred that the impugned order dated 13.09.2000 that is the order impugned in the writ petition is an order punitive in nature; rather there is overwhelming material available, which suggests that it is an order terminating the services of the appellant/petitioner simplicitor. In support of his submission, he has relied upon a Division Bench judgment of this Court in the case of Paras Nath Pandey vs. Director, North Central Zone, Cultural Centre, Nyaya Marg, Allahabad, reported in 2009 (2) AWC 1777. He has also relied upon another judgment of Hon'ble Supreme Court in the case of State of U.P. and another vs. Prem Lata Misra (Km) and others, reported in (1994 ) 4 SCC 189.
10. Having heard the learned counsel representing the respective parties and having perused the record available before us, what we find is that the submissions made by learned counsel for the appellant, in the facts of the present case, are not sustainable. It is not in dispute that the petitioner/appellant was appointed not only as a temporary employee but also against a temporary post of driver in Shravasti District Judgeship. It is also not denied; neither is it in dispute that no full-fledged departmental disciplinary inquiry/proceedings as contemplated in the Rules was ever instituted/initiated/carried against the petitioner/appellant. The averments made in para-29 of the counter affidavit filed by the respondents before the learned Single Judge in the writ petition, are not borne out from the record.
11. Learned counsel appearing for the appellant/petitioner has also not been able to show any document even for the namesake, which may suggest that any departmental full-fledged inquiry/proceedings against the petitioner was ever instituted or initiated. In absence of any such document, the reliance being placed by the learned counsel for the appellant/petitioner on the assertions made in para-29 of the counter affidavit cannot be accepted.
12. The concept of "foundation" and "motive" in service jurisprudence relating to termination of services of a probationer/temporary government servant is well known. If some material or document or any evidence in the form of some memorandums or orders or even inquiry report is available on record and if such material forms the foundation for passing an order though described as order of termination simplicitor, in such an eventuality since the material relied upon forms the foundation, the order has to be termed to be punitive in nature, which could not be passed in absence of any departmental full-fledged inquiry/disciplinary proceedings. However, we may state in the same breath that in case such material, as observed above, in the form of any memorandum/office order/executive order/report/show cause etc., is only the motive impelling the Appointing Authority to consider termination of services of a temporary government servant simplicitor, such order cannot be termed to be punitive in nature and in such a situation, neither the provisions of Article 311 of the Constitution of India would be attracted nor would there be any legal requirement of conducting any departmental proceeding to return a finding of guilt in respect of any misconduct. In this regard, a Division Bench of this Court, in the case of Paras Nath Pandey (supra) after review of the entire law, on the subject, has culled out the principles which determine as to whether a simple order of termination/discharge of a temporary government servant or probationer is punitive or not.
13. Para-57 of the judgment of Division Bench of this Court in the case of Paras Nath Pandey (supra) is extracted herein below:-
"57. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under :
(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution;
(b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences;
(c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order;
(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct;
(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary;
(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping. "Motive" is the moving power, which impels action for a definite result, or to put it differently. "Motive" is that which incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation;
(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not;
(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive;
(i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed;
(j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive;
(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive;
(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee;
(m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive;
(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct;
(o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive;
(i) "want of application";
(ii) "lack of potential";
(iii) "found not dependable";
(iv) "under suspension";
(v) "work is unsatisfactory";
(vi) "unlikely to prove an efficient officer".
(p) Description of background facts also have not been held to be stigmatic;
(q) However, the words "undesirable to be retained in Government service", have been held stigmatic;
(r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive."
14. We now need to examine the submissions made by learned counsel for the appellant/petitioner in the light of the aforesaid principles laid down by the Division Bench of this Court in the case of Paras Nath Pandey (supra). It is needless to say that an order of termination simplicitor is not punishment for the reason that it does not carry any civil consequences. It is also not in dispute that when such an order of termination simplicitor is challenged taking the ground that it casts stigma or it is punitive in nature, the Court is fully within its jurisdiction to lift the veil and find out as to whether the material relied upon is foundation or motive. In case, the Court comes to the conclusion that the material so relied upon for passing the order is only a motive, no interference in such a case would be warranted, whereas in case, the Court comes to the conclusion that the material relied upon for passing such an order forms the foundation of the order, it may interfere in such a case.
15. The Division Bench in the said case of Paras Nath Pandey (supra) has even held that even if in a fact situation a formal department inquiry is commenced but it is not pursued to the end and order of termination simplicitor is passed, such an order would be non-punitive.
16. When the facts of this case are analyzed in the light of the law, as discussed above, what we need to examine, as emphasized by learned counsel for the appellant/petitioner, are the two reports submitted by the Chief Judicial Magistrate on 02.09.2000 and 08.09.2000 as also the notice dated 11.09.2000 issued by the District Judge to the appellant/petitioner and the order dated 13.09.2000 itself.
17. The report dated 02.09.2000 was submitted by the Chief Judicial Magistrate in relation to certain acts of the appellant/petitioner noticed by none other than the District Judge himself, who is his Appointing Authority. The said report clearly indicates that it was submitted in pursuance of a preliminary inquiry. So far as the report of Chief Judicial Magistrate, dated 08.09.2000 is concerned, the said report is also not in relation to any full-fledged departmental disciplinary proceedings, rather it is a report which was called for by the District Judge himself in relation to an incident where the District Judge, despite being the Appointing Authority of the petitioner/appellant, was made to wait for three long hours on a barren road when he was to undertake a journey from his official vehicle from Bhinga to Lucknow. The third document on which the learned counsel for the appellant has drawn attention to the Court is the notice dated 11.09.2000 issued by the District Judge. The said notice also in our considered opinion does not form the foundation of the order dated 13.09.2000 for the reason that the notice itself requires the appellant/petitioner to show cause as to why he should not be declared to be non-suitable for being retained in government service. As regards the order dated 13.09.2000 whereby the services of the petitioner/appellant were terminated except for mentioning certain uncalled for acts and behaviour on the part of the appellant/petitioner, who was employed as driver in the Shravasti Judgeship, nothing has been indicated by the District Judge. The order clearly states that the petitioner/appellant was a temporary driver and even the post against which he was appointed was also temporary in nature. Accordingly, services of the petitioner/appellant were terminated under the provisions contained in the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. From the said documents, namely, the two reports dated 02.09.2000 and 08.09.2000 submitted by the Chief Judicial Magistrate, the notice dated 11.09.2000 and the order dated 13.09.2000, it is absolutely difficult to find any material, which can be said to constitute the misconduct simultaneously forming the foundation or basis of the order dated 13.09.2000. The said material, to us, only appears to be a motive which impelled the District Judge to pass the order terminating the services of the appellant/petitioner as a temporary government servant for the reason that he was not found suitable.
18. It is interesting to notice that acts of negligence, carelessness, and not being mindful while attending the duty etc. were not based on any complaint received from any corner against the appellant/petitioner, rather such acts were noticed by the District Judge himself, who is the Appointing Authority.
19. In our considered opinion, in case any such acts, as in the present case, are noticed by the Appointing Authority in respect of a temporary government servant and on such motive the services are terminated by passing an order under the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975, the same would be an order of termination simplicitor and it would not, on any count, be termed to be an order which may be punitive in nature requiring full-fledged department proceedings to precede the order.
20. In view of the aforesaid discussions, we do not find it a case fit for interfere in the order passed by the learned Single Judge.
21. This appeal is, thus, dismissed.
Order Date :- 16.08.2021 cks/-