Puran Singh Bisht vs The Cane Commissioner And Another
2018 Latest Caselaw 2305 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 27.08.2018
 
Delivered on 04.09.2018
 
Court No. - 21
 

 
Case :- SPECIAL APPEAL No. - 753 of 2018
 

 
Appellant :- Puran Singh Bisht
 
Respondent :- The Cane Commissioner And Another
 
Counsel for Appellant :- Shailendra,Chandan Sharma
 
Counsel for Respondent :- C.S.C.,Nripendra Mishra
 

 
Hon'ble Govind Mathur,J.

Hon'ble Chandra Dhari Singh,J.

(Delivered by Hon'ble Govind Mathur, J. under Chapter VII

Rule 1(2) of Allahabad High Court Rules, 1952)

To question correctness of the judgment dated 20.07.2018 passed by learned Single Bench in Writ-A No. 8563 of 1993, this appeal is before us.

Under the judgment impugned, learned Single Bench arrived at the conclusion that order terminating the appellant-petitioner from service is an order simplicitor, thus, no interference therein is warranted.

In brief, factual matrix of the case is that an appointment was accorded to the appellant-petitioner as Junior Engineer under an order dated 03.01.1987 passed by the Cane Commissioner, Uttar Pradesh. The appointment was on probation for a period of two years in temporary capacity against a substantive vacancy. On completion of two years of service, no order confirming the appellant-petitioner in service was passed but he was allowed to continue therein. A disciplinary proceeding was initiated against him under a statement of charges dated 26.04.1991. The proceedings, so initiated, were dropped under a letter dated 30.11.1992 after recording evidence adduced by the Department. On 03.12.1992, the Cane Commissioner terminated the appellant-petitioner from service by stating that his services are no more required. Being aggrieved by the same, the appellant-petitioner preferred a petition for writ that came to be dismissed under the judgment impugned. Learned Single Bench after referring several judgments of Hon'ble Supreme Court held as follows:-

"67. The aforesaid are not exhaustive, but lay down some of the principles to find out whether termination of an employee is simplicitor or punitive. Each and every case has to be considered in the light of the facts and circumstances of the case, but broadly the aforesaid are the factors to find out whether termination of an employee is punitive or not.

68. In the present case, there is nothing to show that termination of petitioner, in any manner, is stigmatic or by way of punishment. Petitioner was purely a temporary employee having been engaged as interim measure, hence had no right to hold the post or continue in service."

Validity of the judgment impugned is assailed on several counts inter-alia:-

1. Learned Single Bench failed to appreciate that the order terminating the appellant-petitioner from service was founded on an allegation of misconduct, therefore, the same was not a simplicitor one.

2. Learned Single Bench failed to appreciate that by the force of an interim order, the appellant-petitioner remained in service of the respondent-employer for a period of 26 years and during the period aforesaid, the services rendered were always found satisfactory. The employer also awarded all selection grades to the appellant-petitioner, hence the appropriate course before the Court was to assume that the appellant-petitioner deserves to be confirmed in service.

3. Learned Single Bench failed to assign any reason to arrive at the conclusion that order of termination was not stigmatic or by way of punishment.

Per contra, as per learned counsel appearing on behalf of the respondent-Cane Commissioner, the appellant-petitioner failed to discharge satisfactory services, therefore, the Cane Commissioner terminated him from service during the course of probation. The order impugned is not founded on any allegation of misconduct and, as such, the same is nothing but a termination simplicitor. It is asserted that a fine discretion is required to be made by the Court behind motive to pass the order terminating the appellant-petitioner from service and the foundation to that as alleged, but not existing.

We have scanned the entire record and considered the arguments advanced by counsels for rival parties.

At the threshold, we would like to state that learned Single Bench under the judgment impugned has referred several judgments relating to issue that "motive" and "foundation" for discontinuing a probationer from service are two entirely different things and if the order discontinuing a probationer from service is not having a foundation of misconduct then such an order cannot be termed and treated as a stigmatic one, but no reason has been given as to how those judgments are having application in the instant matter.

The sole consideration made by learned Single Bench to dismiss the petition for writ are given in paragraphs 67 and 68 quoted above and those nowhere mention the reasons to arrive at the conclusion that misconduct alleged or for which the appellant-petitioner was subjected to an enquiry was not a foundation for issuance of the order of termination.

We would have remanded the matter to learned Single Bench for readjudication of the entire issue and to supply reasons for the findings arrived, but, as the matter is quite old one, we considered it appropriate to examine merits of the case in detail.

As already stated, validity of an order discharging a probationer from service is required to be examined by taking into consideration that whether any act of the employee concerned giving rise to the order of discontinuation from service is merely a motive or sole foundation for that.

To adjudicate this aspect of matter, it is essential to understand the ingredients of "foundation" and "motive". Hon'ble Supreme Court in the case of Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and Others reported in AIR 1999 SC 983, dealt with this issue at length. Their Lordships in the case of Dipti Prakash Banerjee (supra) held as under:

"If findings were arrived at in inquiry 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 inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry 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 inquire 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 allegation would be a motive and not the foundation and the simple order of termination would be valid."

In the case of Chandra Prakash Shahi v. State of U.P. and others, reported in AIR 2000 SC 1706, Hon'ble Supreme Court in quite detail considered this issue and interpreted the terms "foundation" and "motive" as under:

"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 enquiry is held and it is on the basis of that enquiry 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 enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry 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."

29. - "Motive" is the moving power which implies action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act.

An order terminating the services of an employee is an act done by the employer. What is that factor which implied the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry."

In light of the judgments referred above, it can very well be said that if any enquiry was conducted against the employee concerned for an allegation of misconduct, the enquiry took place upto a substantial length or culminated into submission of enquiry report or the consideration of the enquiry report given and, on being failed to have adequate material to impose punishment, if the mode of termination simplicitor is resorted then such an order is said to be founded on the allegation of misconduct. On the other side, if no inquiry was conducted or if inquiry conducted but no substantial evidence was recorded and no finding was arrived and the employer after taking into consideration overall performance of the employees arrives at a conclusion to discontinue such employee from service then alleged misconduct is required to be treated as "motive" only.

In the case in hand, on applying the principles laid down by the Apex Court, we are of the opinion that the termination of the appellant-petitioner is founded on the allegation of misconduct. It is not in dispute that appointment was given to the appellant-petitioner in the year 1987 and after completing the term of two years, no order of confirmation was passed but in the year 1991, he was subjected to an inquiry. During the course of inquiry, substantial evidence was adduced by the Department authorities to substantiate the allegations but disciplinary action was withdrawn on 30.11.1992. The Cane Commissioner just after a period of three days passed the order dated 03.12.1992 terminating the appellant-petitioner from service just by saying that services are no more required. The appellant-petitioner, in quite unambiguous terms, states in the petition for writ that the allegation of misconduct being not supported by the evidence, the Cane Commissioner resorted to discontinue him from service by passing an order of simplicitor.

Though the respondents stated that termination of the appellant was effected by considering his overall performance but no material is placed on record to such consideration during the period of probation or during extended period of service. In absence of such material, we are having no hesitation in arriving at the conclusion that the alleged misconduct was the foundation for discontinuing the appellant-petitioner from service and, as such, the order terminating the appellant-petitioner from service is bad.

Now coming to the next issue as to whether learned Single Bench was right in not taking into consideration the subsequent events taken place by finally deciding the petition for writ.

True it is, validity of an order is always required to be examined on the date on which that was passed, but while awarding relief, the subsequent events taken place can certainly be looked into. In the case in hand, the appellant-petitioner preferred the petition for writ in the year 1992. The effect and operation of order terminating him from service then was stayed. As a consequence to the interim order passed by Single Bench, the appellant-petitioner remained in service for good 26 years and now he is at the verge of retirement on attaining the age of superannuation. During this period, the service rendered by the appellant-petitioner was satisfactory, he earned all annual grade increments and also the time-bound selection grades.

It is well settled that probation is a system given to newly recruited employee that allows the employer to evaluate the progress and skills of such recruit. While evaluation, several aspects are to be taken into consideration including commitment with service, honesty, integrity, reliability and other qualities which are desirable for efficiency of service. This step permits the employer to disengage the employee from service in a manner simplicitor if the probationer is not suitable for the job assigned. In the instant matter, the service of the appellant may had not been satisfactory in the year 1992, but admittedly, for good 26 years he discharged service with all satisfaction to the employer as that reflects from the grant of annual grade increments, with grant of time-bound selection scales, hence it can very well be said that the appellant-petitioner acquired necessary efficiency and skill to continue in service. Learned Single Bench while considering the issue for grant of relief to the appellant-petitioner should have considered this aspect of the matter too.

At the cost of repetition, we would like to state that the appellant-petitioner has already completed service of more than 26 years with the employer with desired satisfaction.

In view of it, now at this stage, termination of the appellant-petitioner on the count that much back in the year 1992, his service was not satisfactory is not desirable.

In view of whatever stated above, this appeal deserves acceptance, hence is allowed. Judgment impugned dated 20.07.2018 passed by learned Single Bench is set aside. The writ petition is allowed. Order dated 03.12.1992 terminating the appellant-petitioner from service is set aside. The appellant-petitioner is required to be treated in continuous service of respondents from the date of his initial appointment and shall be entitled for all consequential benefits.

Order Date :- 04.09.2018

Shubham

(Chandra Dhari Singh, J.)         (Govind Mathur, J.)