Prem Narayan vs State Of U.P. & Others
2018 Latest Caselaw 1611 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 6689 of 1989
 

 
Petitioner :- Prem Narayan
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Sri M.Kamaluddin,Madhu Singh,Yogendra Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

Heard learned counsel for the petitioner and Sri Vishal Verma, learned counsel appearing for the State-respondents.

By means of the present writ petition, the petitioner has prayed for the following reliefs:-

(i) To issue a writ, order or direction in the nature of mandamus/certiorari striking down/quashing both the termination orders dated 10.07.1989 and 19.07.1989 and commanding petitioner's reinstatement with all back benefits.

(ii) To issue a writ, order or direction in the nature of mandamus striking down and setting aside the selection, if any, scheduled for 10.08.1989 for filling up the petitioner's vacated post of Driver.

(iii) To allow the instant petition with costs and such favourable orders as may deem expedient in the interest of justice.

The case set forth by the petitioner is that he is continuously working as Driver after his appointment since 02.02.1982 driving the jeep of the Joint Director, Urban Land Ceiling, Agra, U.P. A seniority list was issued by the respondents, a copy of which is Annexure No.1 to the writ petition, in which the name of the petitioner finds place at serial no.9. The petitioner continued to work and discharge the duties of the post of Driver when respondent no.2 allegedly became prejudiced against the petitioner and started harassing him. Upon his harassment, the petitioner submitted a complaint dated 03.06.1989 to the employees' union indicating harassment meted out to him. The union referred the matter to another union namely U.P. Nagar Bhumi Seemaropan Chaturth Shreni Rajya Karmchari Sangh, Agra Shakha, which, as per the petitioner, was already having various complaints against respondent no.2 and consequently the matter was taken up with respondent no.2. Taking umbrage of such complaint submitted by the petitioner, it is contended that respondent no.2 became more prejudiced and show cause notices etc. were issued to the petitioner details of which have been indicated in the petition. It is alleged by the petitioner that all the harassment of the petitioner subsequently resulted in a termination order being issued to him dated 10.07.1989, a copy of which is Annexure-11 to the petition. Based on the said order dated 10.07.1989, a notice dated 19.07.1989, a copy of which is Annexure 15 to the writ petition was issued. A perusal of the order dated 19.07.1989 indicates that the said order has been issued under the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 (for short, '1975 Rules') by giving notice that the services of the petitioner shall stand dispensed with immediately on receipt of the said notice being issued in pursuance to the office order dated 10.07.1989 and for the balance period of one month, the pay would be paid to him.

Being aggrieved with the said termination order, the present petition was filed before this Court wherein this Court vide order dated 18.08.1989 passed the following order:-

"Opposite parties to show cause by 20.09.1989 as to why this writ petition be not admitted. Meanwhile, operation of the termination orders contained in Annexures 9, 11 and 15 shall remain stayed provided the persons appointed subsequently to the petitioner are still working."

Pursuant to the interim order passed by this Court, the petitioner continued in service. At the time of hearing, it has been contended that the petitioner has attained the age of 60 years on 31.03.2018 and consequently has been retired from service.

Placing reliance on the averments made in the writ petition, learned counsel for the petitioner has contended that once the respondents had issued a seniority list, copy of which is annexure-1 to the writ petition, and the name of the petitioner figures in the said seniority list then terminating the services of the petitioner by treating him as a temporary employee under 1975 Rules and at the same time  continuing his juniors as indicated in the said seniority list would be an arbitrary act on the part of the respondents and consequently impugned termination order merits to be quashed on this ground alone. Further the contention is that the termination order was not passed simplicitor rather the same has been occasioned on account of harassment the petitioner was suffering at the hands of respondent no.2 (Sri V.K. Gupta) and thus it is apparent that the impugned termination order being patently stigmatic and having been passed not as termination simplicitor but in order to punish the petitioner,  should be quashed on this ground also.

Learned counsel for the petitioner has invited the attention of this Court to the specific averments made in paragraph 1 sub-para IV of the writ petition whereby it has been contended that the juniors of the petitioner at serial nos.10, 11 and 12 had been retained in service and the petitioner, senior to all of them, was terminated.

A further ground has been taken in the writ petition by the petitioner that various posts were existing on which the petitioner could have validly been continued and there was no occasion to dispense with the services under 1975 Rules which also indicates that the termination order was on account of vindictive attitude on the part of respondent no.2, Sri V.K. Gupta.

Apart from above, learned counsel for the petitioner has submitted that once the petitioner has continued to work right since 1982 and even despite the termination order dated 19.07.1989, in pursuance of the interim order passed by this Court dated 18.08.1989, he continued in service and only retired on attaining the age of superannuation on 31.03.2018 meaning thereby that a period of almost 36 years has been spent by the petitioner working under the respondents and discharging the duties and shouldering the responsibility of the work which was entrusted on him consequently his claim for pension and other retiral dues may be directed to be considered by this Court.

Per contra, Sri Vishal Verma, learned counsel for the State-respondents, has contended that the petitioner has suppressed his appointment order and consequently it cannot be said as to in what capacity his services had been engaged by the department. It has also been contended on behalf of the respondents that the working of the petitioner was not satisfactory and he was regularly absent from his duties and was not discharging his duties sincerely. It has also been contended that the petitioner was guilty of lack of interest, sincerity, carefulness and almost every year of his working he was warned for his deliberate negligence and carelessness. The further contention is that the petitioner was charge sheeted by the then Joint Director in the month of February 1989 and adverse entry was also recorded against him. As regards the termination orders dated 10.07.1989 and notice 19.07.1989, it has been indicated that the said termination order was passed in strict consonance with the 1975 Rules and there is no illegality or infirmity in the same inasmuch as the petitioner did not have any right to hold the post in any substantive capacity not having been appointed by following the due process of law and consequently this Court may not interfere with the impugned termination order.

Having heard learned counsel for the parties and having perused the records, what this Court finds is that the working of the petitioner from 1982 to 1989 has not been denied by the respondents. The seniority list, a copy of which is annexure no.1, has also not been denied by the respondents. The seniority position of the petitioner as per the seniority list which is serial no.9 has also not been disputed by the respondents. The respondents have also not disputed the specific averments made in Paragraph 1 sub-para IV of the writ petition pertaining to the services of the petitioner having been dispensed with and at the same time his juniors having been continued inasmuch as the reply to the said paragraph as given in Para 1 [I (IV)] has not been specifically denied. Thus the presumption is that the service of the petitioner was sought to be dispensed with under 1975 Rules in a vindictive and punitive manner more particularly when as per the averments made by the petitioner in the writ petition respondent no.2 was harassing him.

It is also the specific averment in the counter affidavit that the work and conduct of the petitioner was not up to the mark and that the petitioner was not discharging his duties sincerely. Various imputations, allegations and instances have been indicated in the counter affidavit.

It is an undisputed fact that the petitioner has worked from 1982 till he retired on attaining the age of superannuation on 31.03.2018 i.e. a total period of 36 years and also had the interim order dated 18.08.1989 in his favour from this Court. The respondents have not made any serious efforts for having the stay order granted by this Court vacated and thus the petitioner has continued to work uninterruptedly since 1982 to 2018 and has carried out the duties and shouldered the responsibilities of the work entrusted by the respondents. It is not the case of the respondents, now at this stage either during the course of argument or by filing of the supplementary counter affidavit that the work and conduct of the petitioner was unsatisfactory or any complaint has been made against him subsequent to the interim order granted by this Court whereby he had been allowed to continue.

Here it would also be pertinent to mention the stand which has been taken by the respondents in the counter affidavit inasmuch as there is a categoric averment in para 7 of the counter affidavit that "the petitioner did not mend his ways and ultimately when his irresponsible and carelessness became intolerable, the petitioner's service had to be terminated". Similar incidences have been given in para 2(i) of the counter affidavit indicating the unsatisfactory working, irregular working, lack of interest, lack of sincerity etc. Likewise, in para 4 (IV) also, it has been contended that all along the petitioner was discharging his duties in a careless and indifferent manner. However, what clinches the issue against the respondents is the specific averment made in para 7 of the counter affidavit which has already been extracted above. Thus, it is apparent that the entire action on the part of the respondents which resulted in passing of the impugned orders dated 10.07.1989 and consequential order dated 19.07.1989 per which the services of the petitioners came to be terminated in terms of 1975 Rules cannot be termed to be simplicitor rather the same would be punitive and consequently the impugned orders would be bad in the eyes of law.

In this regard, the Court may refer to the judgment of this Court in the case of Brij Bhushan Singh v. State of U.P. reported in 2013 SCC On Line All 5580, wherein this Court considering a similar termination under the 1975 Rules has categorically held that where an order of termination simplicitor is camouflage and is founded on an act of misconduct and without holding any departmental inquiry, the same could not have been passed. This Court while arriving at the said conclusion had placed reliance on an earlier Division Bench judgment of this Court in the case of Paras Nath Pandey v. Director, North Central Zone reported in (2009) 1 UPLBEC 274. This Court after considering the Division Bench judgment in the case of Paras Nath Pandey (supra) has held as under:-

"6. Secondly an order of termination simplicitor is camouflage and is founded on an act of misconduct and without holding any departmental inquiry, the same could not have been passed. A Division Bench of this Court in Paras Nath Pandey Vs. Director, North Central Zone, Cultural Centre 2008 (10) ADJ 283 laid down certain guidelines to ascertain as to when an order of termination simplicitor would amount to punitive order and therein in para 57 the Court said:

"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."

Accordingly, when the facts of the instant case are tested on the touchstone of the law laid down by this Court in the case of Brij Bhushan Singh (supra) and Paras Nath Pandey (supra), what this Court finds is that there is specific admission made on the part of the respondents in their counter affidavit that the termination of the petitioner is not simplicitor rather has been occasioned on account of various acts of misconduct.

Consequently, keeping in view the aforesaid facts and circumstances of the case as well as law laid down by the Division Bench of this Court in the case of Paras Nath Pandey (supra) and Brij Bhushan Singh (supra), the impugned orders dated 10.07.1989 and consequential order dated 19.07.1989 cannot be held to be simplicitor and in accordance with 1975 rules and consequently the same are held to be bad in the eyes of law. Resultantly, the writ petition is allowed and the impugned orders dated 10.07.1989 and consequential order dated 19.07.1989, copies of which have been annexed as Annexure Nos.11 and 12 respectively to the writ petition, are hereby quashed. The petitioner shall be entitled to all consequential benefits.

Order Date :- 20.7.2018

A. Katiyar