Nehru Yuva
Kendra Sangathan Vs. Mehbub Alam Laskar [2008] Insc 72 (22 January 2008)
S.B.
Sinha & Harjit Singh Bedi
WITH CIVIL
APPEAL NO. 1125 OF 2006 S.B. SINHA, J:
1.
These two appeals involving common questions of fact and law were taken up for
hearing together and are being disposed of by this common judgment.
Appellant
is an autonomous body operating under the Department of Youth Affairs and
Sports, Ministry of Human Resource Development, Government of India. It is a
State within the meaning of Article 12 of the Constitution of India.
Respondent
herein was appointed as a Youth Co-ordinator in terms of an offer of
appointment dated 28.9.1994; paragraph 5 whereof reads as under:-
5. You
will be on probation for a period of one year from date of joining. Your
probation period may be extended if considered necessary by the Sangathan.
During the probation period, you will have the option of resigning, if you so
desire, without any notice. Likewise, the Sangathan will be at liberty to
terminate your services without any notice and without assigning any reasons
whatsoever, during the probation period. Upon successful completion of this
period you will be advised in writing of the fresh terms and conditions of your
employment.
2. He
allegedly withdrew some amount from the Government Fund (to which he was
entitled to) and deposited it in his personal bank account. An enquiry in that
behalf was conducted behind his back and on the basis of the result thereof,
his probation was terminated, stating:
Services
of Sh. Mehboob Alam Laskar S/o Late Latif Ahmed Laskar working as Youth
Coordinator in NYK-North Tripura, are terminated forthwith.
He
shall handover the charge to Sh. Topan Nag, Youth Coordinator, NYK-Karimganj
immediately after receipt of this order. Sh. Nag will hold the additional
charge of the Kendra till further orders.
Sd/-
S.Y. Quraiahi Director General
3. He
filed a representation before the appropriate authority for reconsideration of
his case. He also filed another representation/appeal seeking review of the
order of termination dated 24.5.1995 on or about 20.2.1999.
As the
said representation was not being responded to within a reasonable time by the
respondents, he filed a writ petition before the High Court which was marked as
Writ Petition (C) No. 3136 of 1999. The said Writ Petition was disposed of by
the High Court directing the appellant to consider his representation keeping
in mind the decision of the High Court in the case of Ajay Gupta being Civil
Rule No. 5582 of 1995 wherein an order of reinstatement had been passed.
4. The
said representation of the appellant was rejected by an Order dated 13.10.1999
stating that the case of Ajay Gupta which was the subject matter of
above-mentioned Civil Rule, was not similar, stating;
7.
In view of the above explained facts, it is submitted that your case cannot be
treated as similar with that of Shri Ajay Kumar Gupta, his services were
terminated during the probation period after conducting preliminary inquiry.
Later,
he refuted the allegations against him and appealed to the disciplinary
authority. Though his termination was well within the rules of the Sangathan
and also as per the conditions mentioned in the appointment letter, it was
decided to give him a chance as per principles of natural justice. However, on
further inquiry, he was found to be guilty of misappropriation and the
termination of his services was found justified.
On the
other hand, your services were terminated during the probation period on the
basis of certain prima facie allegations of financial irregularities. The same
charges were also admitted by you in your letter dated 14th June, 1995. Therefore, no other inquiry was
considered necessary by the competent authority since the charges were already proved/admitted
by you.
5. The
legality/validity of the said Order was questioned by the respondent by filing
another writ petition before the High Court which was registered as Writ
Petition (Civil) No. 480 of 2001. By reason of a judgment and order dated
9.4.2003, the said order was set aside and the writ petition was allowed, holding
:
The
law is well settled that if a probationer does not satisfy the requirements of
the employer, his services can be dispensed with by an order of discharge; but
if in the order of discharge there is any imputation of misconduct, which may
have a bearing on the future employment of the probationer an enquiry in the
matter should be conducted and the probationer ought to be given an opportunity
to defend himself. Though in the initial order of termination, there is no
imputation or any misconduct against the petitioner, in the subsequent order,
it has been elaborately recited that the foundation of the order of discharge
is on account of financial irregularities committed by the petitioner. The
subsequent order which is now challenged, has the effect of casting a stigma on
the petitioner and, therefore, not much persuasion is required for this Court
to hold that the authority should not have passed the order without affording a
reasonable opportunity to the writ petitioner to defend himself of the charges
leveled. Admittedly no enquiry was held. That being the position, this Court
has no Option but allow the writ petitioner and to interfere with the order
dated 18-10-99. The writ petitioner shall now be
reinstated in service and the Authority will be at liberty to initiate a fresh
proceeding against him in accordance with law, if is so advised. The question
of the entitlement of the writ petitioner to any back wages will be considered
by the authority in accordance such norms as may be in force.
6. The
Order dated 24.5.1995 was, indisputably based on the findings that an enquiry
had been made behind the back of the respondent. Had the result of the
preliminary enquiry been taken into consideration only for the purpose of
judging the suitability of the respondent to continue in service, the same
could not have been said to be a foundation for terminating the probation.
There
exists a distinction between motive and foundation. If misconduct is the
foundation of such an order, the same would be bad in law even if it appears to
an innocuous one.
7. As
the said Order was not complied with, a contempt petition was also filed
wherein by an Order dated 11.5.2004, the Contemnor was directed to comply with
the Orders of the Court without delay. A Writ Appeal was also preferred against
the Order dated 9.4.2003 which by reason of the impugned judgment dated
11.05.2004 has been dismissed.
These
appeals are directed against the aforementioned Orders dated 25.3.2004 and
11.5.2004.
8. Mr.
Rana Ranjit Singh, learned counsel appearing on behalf of the petitioner
submitted that a subsequent order which was passed on the representation of the
respondent himself could not have been taken into consideration by the High
Court for the purpose of arriving at a finding that the initial order of
termination of his probation was not valid. It was furthermore urged that, in
any event, the representation having been filed by the respondent in the year
1999, the writ petition ought not to have been entertained.
9. Mr.
P.K. Goswami, learned senior counsel appearing on behalf of the respondent, on
the other hand, submitted that the learned Single Judge, as also the Division
Bench of the High Court rightly opined that the foundation of the order being a
misconduct, the Order dated 24.5.1995 was wholly unsustainable. It was pointed
out that this Court by an order dated 14.6.2004 stayed the operation of the
order subject to the condition that until further orders, the appellant would
pay to the respondent, every month the last drawn salary but the said order was
vacated by an order dated 13.2.2006 and pursuant thereto the respondent had
been taken in service and in that view of the matter, this Court, may not
exercise its discretionary jurisdiction under Article 136 of the Constitution
of India.
10.
The Office Order dated 24.5.1995 was not a speaking one.
Respondent
was given a notice. He accepted that he had put the money withdrawn from the
banks in his own accounts. He justified his action in his letter dated
14.6.1995. It, however, does not transpire that any further enquiry was made.
Respondent was found to be guilty of misappropriation of the Appellants
fund. Evidently, the said explanation was not considered.
Had an
enquiry been held, the said explanation of the respondent might have been found
to be acceptable by the appellant.
11.
Respondent was appointed on a temporary basis. He was put on probation.
Indisputably, the period of probation was required to be completed upon
rendition of satisfactory service. Only in the event of unsatisfactory
performance by the employee, the termination of probation would have been held
to be justified. It is, however, well-known that when the foundation for such
an order is not the unsatisfactory performance on the part of the employee but
overt acts amounting to misconduct, an opportunity of hearing to the concerned
employee is imperative. In other words, if the employee is found to have
committed a misconduct, although an order terminating probation would appear to
be innocuous on its face, the same would be vitiated, if in effect and
substance it is found to be stigmatic in nature.
12.
Mere holding of a preliminary enquiry where explanation is called for from the
employee, if followed by an innocuous order of discharge, may not be held to be
punitive in nature but not when it is founded on a finding of misconduct. for
Basic Sciences, Calcutta and Others [(1999) 3 SCC 60], this Court held that the
material which amounts to stigma need not be contained only in the termination
order, but may also be contained in an Order or proceeding referred to in the
order of termination or annexure thereto.
When
the report submitted by a competent authority in a disciplinary proceeding
forms the foundation therefor, it would be stigmatic in nature as such an order
will have civil consequences.
14. It
is not necessary for us to consider a large number of decisions operating in
the field as this Court recently in Jaswantsingh Pratapsingh has considered the
question at some length.
Reliance,
however, is placed by Mr. Rana Ranjit Singh on Abhijit 469]. The said decision
has been taken into consideration in Jadeja (supra), stating :
If
the satisfaction of the employer rested on the unsatisfactory performance on
the part of the appellant, the matter might have been different, but in that
case, from the impugned order it is evident that it was not the unsatisfactory
nature and character of his performance only which was taken into consideration
but series of his acts as well, misconduct on his part had also been taken into
consideration therefor. It is one thing to say that he was found unsuitable for
a job but it is another thing to say that he was said to have committed some
misconduct. As in the instant case, it now stands admitted that the
services of the respondent had been terminated on a finding of misconduct, the
said decision of this Court in Abhijit Gupta (supra) has no application.
Others
[(2006) 9 SCC 717]. In that case, the appellants conduct was shown in the
records as Unsatisfactory.
Therein,
this Court noticed that the order of termination was the only motive and not
the foundation therefor stating :
9
. The question whether the termination of service is simpliciter or punitive
has been examined in several cases e.g. Dhananjay v. Chief Executive Officer, Zilla
Parishad and Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. 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
Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences and Pavanendra
Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences 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 Dipti Prakash Banerjee 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: (SCC pp. 71-72) 21 . 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 categorise
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. (emphasis in original)
16.
The respondent evidently, was not aware that his services had been terminated
on a finding of misconduct or the fact that an enquiry had been conducted by
the appellant behind his back. He pleaded bona fide in his action. It was not
an admission on his part in regard to the imputation of misconduct.
He
filed representations after representations. He also moved the High Court. If
the appellant had come to know at a later stage, the real object and purport
for which the order dated 24.5.1995 was issued, he could challenge the same
thereafter. The foundation of the order having been disclosed by the appellant,
at a later stage, the original order must be held to be vitiated in law.
In the
earlier round of the writ petition, the High Court did not go into the question
as to whether the order dated 24.5.1995 was legal or not. The High Court merely
asked the officers of the appellant to consider his representation. His
representation was also to be considered keeping in view the case of Ajay Kumar
Gupta. Ajay Kumar Guptas case was distinguished by the appellant on the
premise that whereas the services of Ajay Kumar Gupta were terminated upon
holding a disciplinary proceeding the services of the respondent had been
terminated on the basis of an enquiry.
A
State within the meaning of Article 12 of the Constitution of India
should have placed full facts before the High Court. Only in its anxiety to
show that the case of Ajay Kumar Gupta was different from that of the
respondent, it came out with the truth that the respondent was guilty of a
serious misconduct. We, therefore, do not find any legal infirmity in the
judgment of the High Court.
In any
event, the respondent is in service now. Appellant even in terms of the
direction of the learned Single Judge is entitled to initiate a departmental
proceeding against the respondent. If such a proceeding is initiated,
explanation offered by the respondent may be accepted or may not be accepted,
but in the facts and circumstances of this case, we are of the opinion that
services of the respondent could not have been terminated.
17.
We, however, are of the opinion that the respondent should not be granted the
entire backwages. He will be entitled to back wages only from the date of the
order of the learned Single Judge of the High Court, namely 9.4.2003. In view
of the aforementioned directions, we are of the opinion that no further order
is necessary to be passed in the contempt matter.
18.
Civil Appeal No. 1125 of 2006 is, therefore, allowed and Civil Appeal No. 1123
of 2006 is dismissed. No order as to costs.
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