Arvind Kumar Sinha vs State Of U.P. And Others
2018 Latest Caselaw 1907 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 07.03.2018
 
Delivered on 09.08.2018
 
Court No. - 4
 
Case :- SPECIAL APPEAL No. - 1421 of 2007
 
Appellant :- Arvind Kumar Sinha
 
Respondent :- State Of U.P. And Others
 
Counsel for Appellant :- Arun Kumar Mishra,Ashok
 
Khare,Manish.Goyal.
 
Counsel for Respondent :- C.S.C.
 

 
Hon. Bala Krishna Narayana, J.

Hon. Irshad Ali, J.

(Delivered by Hon. Irshad Ali, J.)

Heard Sri Ashok Khare, Senior Advocate, assisted by Sri Arun Kumar Mishra, Advocate for the appellant and Sri V.C. Dixit, learned Addl. Chief Standing Counsel for the respondents.

The present special appeal has been preferred challenging the judgment and order dated 20.09.2007 passed by the learned Single Judge in Writ-A No. 37367 of 2007 (Arvind Kumar Sinha vs. State of U.P. and others) and order dated 26.07.2007 passed by the Director General (Prisons jail Administration & Reform Service) U.P. Lucknow, dispensing with the service of the appellant-petitioner.

The case of the appellant is that in the year 1999 the U.P. Public Service Commission issued an advertisement inviting applications from eligible and qualified candidates for the selection and appointment on different posts, including the post of Deputy Jailer. The petitioner being eligible and qualified applied for the post of Deputy Jailer. The petitioner appeared at each and every stage of selection, which comprises of preliminary examination, main written examination and interview, and pursuance to the said selection proceedings he was ultimately selected on the post of Deputy Jailer and he was issued an appointment letter dated 25.03.2001.

In the appointment letter a mention was made that the nature of appointment of the appellant-petitioner is temporary and said appointment can be dispensed with at any time without giving any notice. In the appointment letter it was specified that the probation period of the appointment of the appellant-petitioner would be for two years.

As per the appointment letter the petitioner was posted at District Jail Ghazipur, wherein he joined on 22.04.2001 and started discharging his duties on the said post. Two years probation period was completed by the appellant-petitioner on 21.4.2003 and probation period has never been extended.

The case of the appellant-petitioner is that on completion of probation period of two years, he has been sanctioned all benefits available to a confirmed and permanent employee, including sanction of annual increment, regular monthly deductions from his salary towards G.P.F. and group insurance.

On bare perusal of the paper book it transpires that on 19.06.2007 an order was issued by the Director General notifying the list of transferred Deputy Jailers, whereby the petitioner has been transferred and posted at Central Jail, Bareilly. The petitioner was relieved in pursuance thereof on 07.07.2007 from the District Jail, Ghazipur for joining at Central Jail, Bareilly. The appellant-petitioner joined at Central Jail, Bareilly on 09.07.2007 and thereafter he applied for leave for the period starting w.e.f. 10.07.2007 to 15.07.2007. The appellant-petitioner, after submitting the application for grant of leave for the aforesaid period, could not resume duties on 16.07.2007 on account of his illness. Accordingly, he moved another application on 14.07.2007 seeking medical leave. The application dated 14.07.2007 has been sent by speed post accompanying by a medical certificate on 17.07.2007. The intimation was further submitted through telegram in regard to his illness to the competent authority. The factum of his illness was also communicated to the Director General (Prisons jail Administration & Reform Service) U.P. Lucknow respondent no. 2 on 26.07.2007 detailing the facts pertaining to his illness and fitness with the further stipulation that he would be resuming his duty at Central Jail, Bareilly on 27.07.2007 and thereafter on 28.07.2007 the appellant-petitioner submitted his joining before the Senior Superintendent of Police, Central Jail, Bareilly along with the fitness certificate dated 26.07.2007.

The petitioner-appellant has been served with a copy of the office order dated 26.07.2007 issued by the Director General terminating the services of the petitioner-appellant as no longer required in purported exercise of power under Rule 2 of the U.P. Temporary Government Servant (Termination of Service) Rules, 1975 (hereinafter referred to as 'Rules, 1975').

Aggrieved by the aforesaid order, the petitioner-appellant filed Writ Petition No. 37367 of 2007 (Arvind Kumar Sinha vs. State of U.P. and others). After arguments advanced by the learned counsel for the parties the judgment was reserved in the said writ petition on 21.08.2007 and delivered on 28th of September, 2007 dismissing the aforesaid writ petition. Against the said order, the petitioner-appellant filed the present special appeal before this Court.

Assailing the impugned order of termination, the learned counsel for the petitioner raised mainly four arguments before the learned Single Judge:-

(a) Rule 20 of the U.P. Jail Executive Subordinate (Non-Gazetted) Service Rules 1980 envisaged an initial appointment to be made on probation of 2 years; such period of probation could be extended by the appointing authority; except for exceptional reasons the period of probation shall not be extended for more than one year and in no circumstances beyond a limit of 2 years. Clearly, the said provision prescribed a maximum period of 4 years for a person to be continued on probation. Such period of 4 years expired on 24.03.2005 and the petitioner-appellant was permitted to continue beyond the said period so that the petitioner-appellant would be deemed to have been confirmed in service.

(b) The petitioner being a confirmed employee his services could not be terminated by recourse to the provisions of U.P. Temporary Government Servant (Termination of Service) Rules, 1975.

(c) The appointment of the petitioner-appellant had been made on substantive basis on a substantive post and the services of the petitioner-appellant could not be treated as temporary services in terms of Rule 2 of U.P. Temporary Government Servant (Termination of Service) Rules, 1975.

(d) In any view of the matter even in case the petitioner-appellant was held to be continuing on temporary basis his services could not have been terminated in the manner it had been done, as it was clearly founded upon allegation of absence from duty and being punitive in nature recourse to regular departmental proceedings were necessary even in case the petitioner-appellant was treated to be temporary.

Challenging the judgment of the learned Single Judge and the order of termination passed by the respondent no. 2, Sri Ashok Khare, Senior Advocate submitted that reasoning adopted by the learned Single Judge in rejecting deemed confirmation on account of requirement of a specific order of confirmation under the U.P. State Government Servant Confirmation Rules 1991 would completely make rule 20 of the 1980 Rules to be nugatory despite a specific prohibition against an employee being continued on probation beyond 4 years. A part from the aforesaid the learned Single Judge fails to appreciate that U.P. State Government Servant Confirmation Rules 1991 by virtue of Rule 1(3) is limited to persons holding a civil post in connection with the affairs of the Uttar Pradesh. The said language would clearly exclude the applicability of 1991 Rules to the Police Department and Jail Administration.

He further submitted that in case the argument referred herein above is accepted then automatically the petitioner goes out of the definition of a temporary Government servant under Rule 2 of 1975 Rules.

He next submitted that during the course of hearing of the special appeal under an order passed by the Division Bench on 15.02.2017, the State Counsel was required to produce original record. The original record so produced clearly demonstrate that upon a query of the Director General from the Senior Superintendent of Police, Central Jail, Bareilly, as to if all transferred employees had joined, there exists a report of the Senior Superintendent of Police on the record to the effect that the petitioner-appellant had joined on 09.07.2007, but had proceeded on leave on 10.07.2007. On this report there exists an endorsement of the Director General directing the services of the petitioner-appellant to be terminated.

The same is followed on the same date or the next date by order dated 26.07.2007 terminating services of the petitioner.

Further submission of the learned Senior Advocate is that on perusal of records produced by the State Counsel, it is apparent that the termination of service is not based upon the service record of the petitioner-appellant, but is founded solely upon the allegation of the petitioner-appellant having proceeded on leave on 10.07.2007 after having submitted his joining on 09.07.2007 at Central Jail, Bareilly. The said allegation is the foundation of the order of termination and even assuming the petitioner-appellant being still temporary employee/continuing on probation, on account of the punitive nature of order, it was incumbent upon the respondents to have complied with the procedure under Article 311 of the Constitution and U.P. Govt. Servant (Punishment and Appeal) Rules 1999. No such procedure has been followed n the present case.

Learned Senior Advocate, in support of his arguments, has relied upon the judgment of the Apex Court in the case of State Bank of India and others vs. Palak Modi and another, reported in (2013) 3 SCC 607 and submitted that the learned Single Judge has heavily relied upon paragraph 41 of the judgment in the case of Krishna Devaraya Education Trust vs. L.A. Balkrishna, which has been distinguished with the law laid down in the case of State Bank of India and others vs. Palak Modi and another (supra).

He further relied upon two other judgments in the case of Chandra Prakash Sahi vs. State of U.P. and others; 2000 (5) SCC 152 and in the case of Paras Nath Pandey vs. Director, NCZCC, Allahabad; 2008 (10) ADJ 283.

Per contra learned counsel for the respondents Sri V.C. Dixit, learned Addl. Chief Standing Counsel submitted that the respondents while passing the impugned order has not committed any error of law. The order does not suffer from any infirmity or illegality and is a just and valid order. He further submitted that the petitioner is a temporary Deputy Jailer and the respondents, taking into consideration his status, has passed the order of termination which does not cast stigma on the petitioner-appellant.

He next submitted that the learned Single Judge, while passing the judgment, has considered all aspect of the matter which does not require any interference in the appeal filed by the petitioner-appellant. Thus, the appeal has no merit and is liable to be dismissed.

After having heard learned counsel for the petitioner and the learned Addl. Chief Standing Counsel, we have perused the material on record.

Learned Senior Advocate, while assailing the judgment and order passed by the learned Single Judge, has first submitted that reasoning adopted by the learned Single Judge in rejecting deemed confirmation on account of requirement of a specific order of confirmation under the U.P. State Government Servant Confirmation Rules 1991 would completely make rule 20 of 1980 Rules to be nugatory, despite a specific prohibition against an employee being continued on probation beyond 4 years.

On perusal of Rule 20 of 1980 Rules and Rule 1(3) of Rules 1991, the argument advanced by the learned counsel for the petitioner-appellant has substance. Language of the aforesaid rules, clearly exclude the applicability of 1991 Rules to the Police Department and Jail Administration. Thus the analogy adopted by the learned Single Judge in the impugned judgment cannot be accepted.

While considering the submissions made by the learned Senior Advocate, we have perused the original records produced before this Court. In its perusal it clearly demonstrate that upon a query of the Director General from the Senior Superintendent of Police, Central Jail, Bareilly, as to if all transferred employees had joined, there exists a report of the Senior Superintendent of Police on record to the effect that the petitioner had joined on 09.07.2007 but had proceeded on leave on 10.07.2007. On the said report there exist an endorsement of the Director General directing the services of the petitioner-appellant to be terminated. In compliance of that endorsement the order dated 26.07.2007 terminating the services of the petitioner-appellant has been passed. It is apparent that the termination of service is not based upon the service record of the petitioner-appellant, but is founded solely upon the allegation of the petitioner-appellant having proceeded on leave on 10.07.2007 after having submitted its joining on 09.07.2007 at Central Jail, Bareilly. Therefore, the termination of service founded solely upon the allegation made by the respondent regarding the petitioner having proceeded on leave on 10.07.2007.

On a pointed query being made by this court as to how services of the petitioner-appellant could be terminated only on the basis of the endorsement made on the letter dated 24.07.2007 for termination of service of the petitioner-appellant, learned Addl. Chief Standing Counsel could not submit reply to the query made by this Court.

Assuming the petitioner-appellant, being a temporary employee continuing on probation, on account of the punitive nature of the order, it was incumbent upon the respondents to have complied with the procedure prescribed under Article 311 of the Constitution of India and U.P. Government Servant (Punishment and Appeal) Rules, 1999. On perusal of the records there is no material, which reflect upon that the procedure prescribed under the aforesaid Article has been followed in passing the impugned order neither the aforesaid aspect of the matter has been considered by the learned Single Judge while dismissing the writ petition.

The learned counsel for the petitioner-appellant has relied upon the judgment in the case of State Bank of India vs. Palak Modi (supra). The relevant paragraphs 39 and 41 of the said judgment is extracted below:

"39. One of the several grounds on which the appellants challenged the termination of their services was that the action of the employer was wholly arbitrary, discriminatory and violative of equality clause contained in the Constitution. While quashing orders dated 25.9.1980, this Court observed:

" 7. When the master-servant relation was governed by the archaic law of hire and fire, the concept of probation in service jurisprudence was practically absent. With the advent of security in public service when termination or removal became more and more difficult and order of termination or removal from service became a subject-matter of judicial review, the concept of probation came to acquire a certain connotation. If a servant could not be removed by way of punishment from service unless he is given an opportunity to meet the allegations if any against him which necessitates his removal from service, rules of natural justice postulate an enquiry into the allegations and proof thereof. This developing master-servant relationship put the master on guard. In order that an incompetent or inefficient servant is not foisted upon him because the charge of incompetence or inefficiency is easy to make but difficult to prove, concept of probation was devised. To guard against errors of human judgment in selecting suitable personnel for service, the new recruit was put on test for a period before he is absorbed in service or gets a right to the post. Period of probation gave a sort of locus pententiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserved a right to dispense with his service without anything more during or at the end of the prescribed period which is styled as period of probation. Viewed from this aspect, the courts held that termination of service of a probationer during or at the end of a period of probation will not ordinarily and by itself be a punishment because the servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to (see Parshotam Lal Dhingra v. Union of India). The period of probation therefore furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service. Period of probation may vary from post to post or master to master. And it is not obligatory on the master to prescribe a period of probation. It is always open to the employer to employ a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer."

41. In Krishnadevaraya Education Trust v. L.A. Balakrishna (supra), the Court noted that the services of the respondent, who was appointed as Assistant Professor on probation were terminated on the ground of unsuitability and observed:

"5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, naturally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.

6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.

7. In the instant case, the second order which was passed terminating the services of the respondent was innocuously worded. Even if we take into consideration the first order which was passed which mentioned that a Committee which had been constituted came to the conclusion that the job proficiency of the respondent was not up to the mark, that would be a valid reason for terminating the services of the respondent. That reason cannot be cited and relied upon by contending that the termination was by way of punishment."

The judgment relied upon by the learned counsel for the petitioner-appellant is fully applicable in the facts and circumstances of the present case and distinguishable with the judgment relied upon by the learned Single Judge in the case of Krishna Devaraya Education Trust vs. L.A. Balkrishna (supra).

He further relied upon the judgment in the case of Chandra Prakash Shahi (supra). The relevant paragraph 8, 12, 22 to 28 of the said judgment are being quoted herein below:

8. The first contention of the learned counsel for the appellant is about the status of the appellant. Learned counsel has contended that the appellant could not have been legally removed from service, except by way of disciplinary action in accordance with the requirements of Article 311(2) of the Constitution. It is contended that after completion of the period of probation, the appellant had acquired "permanent" status and, therefore, his services could not have been terminated by a mere notice or a month's pay in lieu thereof. This argument cannot be accepted.

12. Now, it is well settled that the temporary government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated 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 face of the order and to find out whether it is as innocent as worded. (See: Parshotam Lal Dhingra v. Union of India6.) It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee 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 make the order punitive unless the order was "founded" on those factors or other disqualifications.

22. The tests for determining whether termination was a termination simpliciter or by way of punishment laid down in earlier decisions were reiterated in Oil & Natural Gas Commission v. (Dr) Mohd. S. Iskender Ali25 and Nepal Singh v. State of U.P.26 The latter was a case of termination simpliciter on account of the drive launched by the Inspector General of Police for weeding out police officers who were unsuitable or unfit to be continued in service. On the facts and circumstances of that case, it was held that the question whether the appellant, who was a temporary servant, should be retained in service, directly arose during the drive launched to weed out unsuitable officers and it was for this reason that the termination order was upheld, particularly as there was nothing to show that the termination order was made by way of punishment. In another decision which, incidentally, again is Nepal Singh v. State of U.P.27, the Court held that where the services of a temporary government servant are terminated on the ground that his reputation for corruption makes him unsuitable for retention in the service, the State, or for that matter, any statutory employer, must take great care when proceeding to terminate a career on the ground of unsuitability, to ensure that its order is founded on definable material, objectively assessed and relevant to the ground on which the termination is effected. It was observed that the Court will view with great disfavour any attempt to circumvent the requirement of Article 311(2). In Anoop Jaiswal v. Govt. of India28 it was found on a consideration of the entire record that the real foundation for the order of discharge of the appellant probationer was the alleged act of misconduct. This, it was observed, made the impugned order punitive in nature and was, therefore, held to be bad.

23. Shesh Narain Awasthy v. State of U.P.29 was a case of a temporary Constable in the U.P. Police whose services were terminated by an apparently innocuous order. On scrutiny it was found that the services were terminated on account of his alleged participation in activities of an unrecognised Police Karamchari Parishad. The termination order, therefore, was held to be bad as having been passed without following the procedure prescribed under Article 311(2) of the Constitution.

24. In Ravindra Kumar Misra v. U.P. State Handloom Corpn. Ltd.30 it was held that for finding out the effect of the order of termination, the concept of "motive" and "foundation" has to be kept in mind. It was further observed that no straitjacket test can be laid down to distinguish the two, namely, the "motive" and the "foundation". Whether motive has become the foundation has to be decided by the court with reference to the facts of a given case. It was also observed that "motive" and "foundation" are certainly two points of one line -- ordinarily apart but when they come together, "motive" gets transformed and merged into "foundation". It was also observed that since in regard to a temporary employee or an officiating employee an assessment of the service is necessary, merely because the authority proceeds to make an assessment and records its views, it would not be available to be utilised to make the order of termination, following such assessment, punitive in character. It was observed by this Court that in the relationship of master and servant there is a moral obligation to act fairly. There should be an assessment of the work of the employee and if any defect is noted in his working, the employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiency, indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, it was observed, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.

25. In State of U.P. v. Kaushal Kishore Shukla2 which has been relied upon by the High Court in the impugned judgment, it was held that merely because a preliminary inquiry was held against a temporary government servant, would not be a ground to hold that an order, otherwise innocuous on the face of it, by which the services were terminated, was punitive in nature. The decision in Nepal Singh v. State of U.P.27 was held to be per incuriam as in that case, Champaklal case12 was not considered, but the Court did observe that if on an overall assessment of the work and conduct of the employee the authority competent in that behalf to terminate the service, is satisfied that on account of the employee's general unsuitability and inefficiency or misconduct it would not be in the public interest to retain him in service, it may either terminate the services by an innocuous order or may proceed to take punitive action by holding a regular departmental enquiry. The Court, however, emphasised that the termination has to be in accordance with the terms and conditions of service regulated by the relevant rules.

26. In Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd31 which related to a probationer, the whole legal position was reviewed by brother M. Jagannadha Rao, J., in an illuminating and research-oriented judgment and after considering various decisions including the decision in Kaushal Kishore Shukla case2 and a still later decision in Commr., Food & Civil Supplies, Lucknow, U.P. v. Prakash Chandra Saxena32 so as to trace the development of law relating to this aspect of service jurisprudence, laid down that there has not been any conflict of opinion inter se various judgments including those laying down the "motive" and "foundation" theory. It was held that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. The benefit and protection of Article 311(2) of the Constitution is available not only to temporary servants but also to a probationer and the court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated.

27. The whole case-law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulum; right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi case21 that there was a conflict of decisions on the question of an order being a simple termination order or a punitive order, but every time the Court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of "motive" and "foundation" was always kept in view.

28. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".

In paragraph 57 of the judgment in the case of Paras Nath Pandey vs. Director, NCZCC, Allahabad, it has been held as under:

"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."

The Addl. Chief Standing Counsel does not dispute the law laid down in the aforesaid judgments.

On perusal of the impugned judgment, it is crystal clear that the petitioner-appellant continued for almost 6 years in service and has been provided all the benefits available to a regular employee like increment, deduction of GPF and GIS etc. The aforesaid benefits can only be provided to an employee whose services have been found satisfactory. Meaning thereby his services rendered in the respondent department was satisfactory.

From the perusal of the material placed before this Court and the records produced by the State counsel as well as on perusal of the judgments relied upon, it is crystal clear that the action against the petitioner-appellant has been taken on the ground of absence from duties and due to non-joining at the transferred place, and the letter dated 24.07.2007 has been made foundation whereupon endorsement was made for terminating the services of the petitioner-appellant due to absence from duties. Therefore, due to non-consideration of this aspect of the matter by the learned Single Judge, the judgment vitiated in law and is liable to be set aside. The order of termination dated 26.07.2007 is also stigmatic and punitive in nature as the same is based on the endorsement made on the letter dated 24.07.2007. Thus, Article 311 of the Constitution of India is attracted and the petitioner was entitled for reasonable opportunity to be provided prior to passing of the order dated 26.07.2007.

The learned Single Judge has committed manifest error of law and has not taken into consideration the arguments advanced by the learned counsel for the petitioner-appellant merely because the said letter was annexed along with the counter affidavit. Before passing the impugned judgment the learned Single Judge would have been summoned the records for its verification that whether the letter dated 24.07.2007 is the foundation for passing the order of termination or not.

Therefore, the impugned order dated 26.07.2007, being violative of Article 311 of the Constitution of India, is not sustainable in law and due to non-consideration of the aforesaid aspect of the matter by the learned Single Judge the impugned judgment and order dated 20.09.2007 is also not sustainable.

Accordingly, the impugned judgment and order dated 20.09.2007 and the order of termination dated 26.07.2007 are hereby set aside and the writ petition and the special appeal succeed and are allowed.

The respondents are directed to reinstate the petitioner in service with all consequential benefits for which the petitioner-appellant is entitled, preferably within a period of three months from the date of production of a certified copy of this order.

No order as to costs.

Dated:09.08.2018

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