Jai
Singh Vs. Union of India & Ors [2006] Insc 498 (18 August 2006)
Arijit
Pasayat & S.H. Kapadia
[With
Civil Appeal Nos. 512/2006, 513/2006. 511/2006 and 514/2006] ARIJIT PASAYAT, J.
These
appeals involve identical questions and, therefore, are disposed of by this
common judgment. Writ Petitions filed by the Appellants were dismissed by a
Division Bench of the Delhi High Court holding that termination of their
services suffered from no infirmity.
Civil
appeal No. 510 of 2006 relates to writ petition no. 4794 of 1995 while other
appeals relate to other writ petitions which were disposed of following the
view expressed in the common judgment.
Factual
background in a nutshell is as follows:
The
appellants were recruited by the respondent No.3 as "Daily Wage
Constables" and they were posted in an auxiliary battalion namely 124
Auxiliary Battalion. While the appellants were thus serving on ad-hoc basis, a
decision was taken by the respondents to disband the said Battalion and to
install a permanent battalion in its place. At that stage the appellants along
with others went on a general strike in Moradabad. Subsequently, they withdrew their strike. Cases of all the Daily Wage
Constables including that of the appellants was considered for their
regularization and for placing them in a permanent Battalion. The services of
the appellants were, however, terminated and similar certificates of service
were issued to all the appellants. As against Clause No.10 of the said
certificate of service giving reason for termination, it was stated that since
the services were no longer required due to disbandment of the unit, the
services of the appellants were being terminated. Clause No.12 of the said
certificate speaks of the conduct as against which three heads were provide as
good, satisfactory and unsatisfactory. The appellants conduct had been shown in
the said column as "unsatisfactory".
Being
aggrieved by the said orders of termination, the appellants submitted
representations, which were considered by the Deputy Inspector (General) of
Police, CRPF. By a communication dated 5th April, 1995, representations filed by the
appellants were disposed of. In the said order it was stated that the
appellants were engaged as auxiliary constable with CRPF purely on ad-hoc basis
on daily wages and that they were not found suitable for absorption on regular
basis in CRPF on disbandment of Auxiliary Battalion due to misconduct and
attitude as reported by the Commandant of the 124 Auxiliary Battalion.
For
the aforesaid reasons, the said representations were found to be devoid of
merit and were rejected.
Being
aggrieved by the same an appeal was also preferred which also came to be
disposed of by order dated 4th June, 1994.
This order states that the appellants were engaged in 124 Auxiliary Battalion
CRPF on daily wage basis and services of such persons could be terminated at
any time without assigning any reason. It was observed that Auxiliary Battalion
stood disbanded on 31st
March, 1994 and only
those constables who were fit in all respects were engaged and as the
appellants did not fall in the said category, their services were terminated.
Consequently, their appeals were rejected.
The
appellants preferred three writ petitions before the High Court challenging the
orders and actions aforestated of the respondents.
The
High Court on consideration of the rival submissions held that conduct for
which the appellants were not found suitable for regularization cannot by any
stretch of imagination be said to be becoming of members of a disciplined
force. Accordingly, the writ petition was dismissed. It was held that the act
of the respondents before it finding out the suitability of the appellants did
not amount to imposition of any punishment and, therefore, no enquiry was
required to be initiated. The writ petitioners were at the relevant point of
time members of the CRPF, a disciplined force and higher degree of discipline
was called for. The employer passed a simple order of termination as permitted
by the terms of appointment and/or permitted by the rules.
The
indiscipline to which reference was made to find the appellants unsuitable was
not the foundation of the order of termination, but at the most the motive for
it.
As
noted above, the writ petitions were dismissed.
Learned
counsel for the appellants submitted that the termination simpliciter was a
camouflage. The alleged indiscipline was the foundation for the termination for
the termination and not the motive as noted by the High Court.
There
was no material to describe the appellants as the ring leaders who allegedly
instigated the other ad-hoc Constables of the erstwhile 124 Auxiliary
Battalion. There was no full- fledged investigation in this regard. It appears
that preliminary enquiry was conducted by a higher ranked officer of the post.
According to learned counsel for the respondents the authorities were satisfied
that the unwarranted act the appellant rendered them unfit for employment in an
organization which demands forbearance, endurance and high order of discipline
to serve in the most hostile conditions. The appellants were not recruited in
the force as regular cadets and were, in fact, daily wage cadets.
It was
pointed out that in view of the unsatisfactory conduct they were not considered
for absorption.
In
what situation the allegation of misconduct will be the motive and in what
cases they will be foundation has to be adjudged in the factual background of
each case. The issue has been examined in several decisions including several
Constitution Bench judgments and a judgment of 7- judges. An elaborate analysis
of the various decisions was made by this Court in Radhey Shyam Gupta v. U.P. State Agro
Industries Corpn. Ltd. and Anr. (1999 (2) SCC 21). The matter was examined
elaborately by 7-Judges in Samsher Singh v. State of Punjab and Anr. (1974 (2) SCC 831). In the
said case it was noted in paragraphs 79 and 80 as follows:
-
"The
Enquiry Officer nominated by the Director of Vigilance recorded the statements
of the witnesses behind the back of the appellant. The enquiry was to ascertain
the truth of allegations of misconduct. Neither the report nor the statements
recorded by the Enquiry Officer reached the appellant.
The
Enquiry Officer gave his findings on allegations of misconduct. The High Court
accepted the report of the Enquiry Officer and wrote to the Government on June 25, 1969 that in the light of the report the
appellant was not a suitable person to be retained in service. The order of
termination was because of the recommendations in the report.
-
The order of termination
of the services of Ishwar Chand Agarwal is clearly by way of punishment in the
facts and circumstances of the case. The High Court not only denied Ishwar Chand
Agarwal the protection under Article 311 but also denied itself the dignified
control over the subordinate judiciary. The form of the order is not decisive
as to whether the order is by way of punishment. Even an innocuously worded
order terminating the service may in the facts and circumstances of the case
establish that an enquiry into allegations of serious and grave character of
misconduct involving stigma has been made in infraction of the provision of
Article 311. In such a case the simplicity of the form of the order will not
give any sanctity. That is exactly what has happened in the case of Ishwar Chand
Agarwal. The order of termination is illegal and must be set aside." In
Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Mazdoor Sabha and Ors. (1980 (2) SCC 593) it was observed
as follows:
-
"Masters
and servants cannot be permitted to play hide and seek with the law of
dismissals and the plain and proper criteria are not to be misdirected by
terminological cover-ups or by appeal to psychic processes but must be grounded
on the substantive reason for the order, whether disclosed or undisclosed. The
Court will find out from other proceedings or documents connected with the
formal order of termination what the true ground for the termination is. If,
thus, scrutinized, the order has a punitive flavour in cause or consequence, it
is dismissal. If it falls short of this test, it cannot be called a punishment.
To put it slightly differently, a termination effected because the master is
satisfied of the misconduct and of the consequent desirability of terminating
the service of the delinquent servant, is a dismissal, even if he had the right
in law to terminate with an innocent order under the standing order or
otherwise. Whether, in such a case the grounds are recorded in a different
proceeding from the formal order does not detract from its nature. Nor the fact
that, after being satisfied of the guilt, the master abandons the enquiry and
proceeds to terminate. Given an alleged misconduct and a live nexus between it
and the termination of service the conclusion is dismissal, even if full
benefits as on simple termination, are given and non-injurious terminology is
used.
-
On the contrary,
even if these is suspicion of misconduct the master may say that he does not
wish to bother about it and may not go into his guilt but may feel like not
keeping a man he is not happy with. He may not like to investigate nor take the
risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter,
if no injurious record of reasons or punitive pecuniary cut-back on his full
terminal benefits is found. For, in fact, misconduct is not then the moving
factor in the discharge.
We
need not chase other hypothetical situations here." In A.G. Benjamin v.
Union of India (1967 (1) LLJ 718 (SC) the factual position was as follows:
"A
charge memo was issued, explanation was received and an enquiry officer was
also appointed but before the enquiry could be completed, the proceedings were
dropped stating that "departmental proceedings will take a much longer
time and we are not sure whether after going through all the formalities, we
will be able to deal with the accused in the way he deserves." In that
case, order of termination was held not to be punitive. The ratio was adopted
in State of Punjab v. Sukh Raj Bahadur (AIR 1968 SC
1089) and it was concluded as follows:
"The
departmental enquiry did not proceed beyond the stage of submission of a charge
sheet followed by the respondent's explanation thereto. The enquiry was not
proceeded with; there were no sittings of any enquiry officer, no evidence
recorded and no conclusion arrived at on the equity." The question whether
termination of service is simpliciter or punitive has been examined in several
other cases e.g. Dhananjay v. Chief Executive Officer, Zilla Parishad, Jalna
(2003 (2) SCC 386) and Mathew P. Thomas v. Kerala State Civil Supply
Corporation Limited and Ors. (2003 (3) SCC 263). An order of termination simpliciter
passed during the period of probation has been generating undying debate. The
recent two decisions of this Court in Dipti Prakash Bamerjee v. Satyendra Nath
Bose National Centre for Basic Sciences, Calcutta (1999 (3) SCC 60) and Pavanendra
Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (2002(1) SCC 520) after
survey of most of the earlier decisions touching the question observed as to
when an order of termination can be treated as simpliciter and when it can be
treated as punitive and when a stigma is said to be attached to an employee
discharged during the period of probation. The learned counsel on either side
referred to and relied on these decisions either in support of their respective
contentions or to distinguish them for the purpose of application of the
principles stated therein to the facts of the present case. In the case of Dipti
Prakash Banerjee (supra) after referring to various decisions it was indicated
as to when a simple order of termination is to be treated as
"founded" on the allegations of misconduct and when complaints could
be only as a motive for passing such a simple order of termination. In para 21
of the said judgment a distinction is explained thus:
"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
doubtful 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 simpliciter
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 simpliciter
falling in one or the other category, based on misconduct as foundation for
passing the order of termination simpliciter or on motive on the ground of
unsuitability to continue in service." These aspects were highlighted
recently in State of Haryana and Another v. Satyender Singh Rathore
[2005 (7) SCC 518].
In the
background of facts as noticed by the High Court the order of termination
cannot be faulted. The High Court had rightly declined to interfere. We find no
reason to take a different view. The appeals are accordingly dismissed.
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