Mahavir Singh vs D.T.C. And Anr.
1995 Latest Caselaw 65 Del

JUDGMENT

Anil Dev Singh, J.

(1) This is a Letters Patent Appeal against the order of the learned single Judge dated May 12, 1994 whereby the writ petition of the appellant challenging the order of his termination was dismissed.

(2) On October 22, 1984 the appellant was initially appointed as conductor (retainer crew) on daily wages. Subsequently, on June 27,1985 the appellant was appointed as conductor on probation with effect from April 22, 1985 on regular rate of pay. The period of probation was for one year but could be extended up to two years. However, before the expiry of the period of one year, on March 17,1986, the services of the appellant were terminated by an order of termination simpliciter which said:

"THE services of Sh. Mahavir Singh, s/o Sh.Manglu Ram,(conduc- tor) B.No-22009 T.No-48502 of this unit are hereby terminated w.-f.l8.3.1986, under clause 9 (a) (i) of the DRTA (conditions of appointment and service) Regulations, 1952.

HE is required to deposit all the D.T.C. articles in his possession within 24 hours on receipt of this memo. Non- deposit of the Dtc articles by him in accordance with the instructions as contained in office Order No.21 dated 27.1.54 will render him liable to pay penalty of Rs.2.00 per day for the days he keeps any of the Dtc articles in his possession after the specified period of 24 hours.

A cheque No.902057 date 17.3.85 amounting to Rs.l437.30 (Rupees one thousand four hundred eighty seven and paise thirty only) is also enclosed herewith."

(3) This order of termination was challenged by the appellant by means of a writ petition on the ground that the order of termination simpliciter was a camouflage and was in fact an order of dismissal based on allegations of misconduct and since no proper enquiry was held nor any opportunity of hearing was given to him, the order was illegal and violated the principles of natural Justice. Learned single Judge, however, did not accept the contention of the appellant and dismissed the writ petition holding that the order was an order of termination simpliciter which did not cast any stigma on the appellant. Against the order of the learned single Judge the appellant has filed the present Letters Patent Appeal.

(4) MR.GUPTA, learned counsel for the appellant argued before us that the order of termination was punitive in nature and was passed without affording any opportunity of being heard to the appellant. He submitted that the order needs to be X'rayed in order to judge its true nature and character. He invited our attention to the existence of the following allegations in the record of the respondent against the conduct of the appellant.

(5) On February 23, 1986 at 4.30 P.M bus No. 3052 was checked by Shetu Ram, Ati in the company of Shri Kishan Chand and Jogi Ram, ATls. It was found that a group of 16 persons boarded the bus from Zoo for Ashram. These passengers were issued only ten tickets of 50 paise denomination by the appellant who was the conductor of the bus. The remaining six tickets were not issued to the passengers of the said group but they were charged Rs.8.00 for all the 16 passengers. On being questioned by the aforesaid checking-staff, the appellant surrendered the remaining six unpunched tickets of 50 paise each. The appellant also admitted his fault in presence of the passengers. The statement of Daya Ram, one of the members of the group, was recorded. He stated that they were a group of 16 passengers but were issued only ten tickets by the appellant and the remaining six tickets were not issued to them. However, Rs.8.00 were charged from them by the appellant.This statement was countersigned by the appellant. LEARNED counsel for the appellant submitted that though these allegations were untrue, nonetheless they served as the foundation of the order of termination passed by the respondent. According to the learned counsel the order of termination has direct nexus with the aforesaid allegations which were levelled against the. appellant.

(6) On the other hand, Ms. Mamta Mehra, learned counsel for the respondents, submitted that the order of termination was not punitive in nature and was passed having regard to the overall performance of the appellant as the appellant was not found suitable his services were terminated before the completion of his period of probation.

(7) We have considered the submissions of the learned counsel for the parties and we are of the opinion that the order of the learned single Judge does not require any interference. It is well settled that an order of termination simpliciter of a probationer is not per se bad when it is preceded by a preliminary fact finding enquiry. It is only where a probationer is dismissed from service without a proper enquiry with a stigma as a result of some specific charge, the plea that the removal from service is by way of punishment can be sustained. In Governing Council of Kidwai Memorial institute of Oncology, Bangalore, Vs. Dr.Pandurang God- walker and another , the Supreme Court explained the principles thus:

"6.Generally in connection with an order of termination, a question is raised before the Court as to what is the motive beh ind the termination of the service of the employee concerned whether the reason mentioned in the order of termination has to be accepted on its face value or the background in which such order of termination simplicity has been passed should be examined to find out as to whether an officer on probation or holding a temporary appointment has been, in fact, dismissed from the service without initiating any departmental enquiry. If an employee who is on probation or holding an appointment on temporary basis is removed from the service with stigma because of some specific charge, then a plea cannot be taken that as his service was temporary or his appointment was on probation, there was no requirement of holding any enquiry, affording such an employee an opportunity to show that the charge levelled against him is either true or it is 'without any basis. But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simpliciter after some preliminary enquiry it cannot be held that as some enquiry had been made against him before the issuance of order of termination it really amounted to his removal from service on a charge as such penal innature."

"7...............THEprinciple of tearing of the veil for finding out the real nature of the order shall be applicable only in a case where the court is satisfied that there is a direct nexus between the charge so levelled and the action taken. If the decision is taken, to terminate the service of an employee during the period of probation, after taking into consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment. It need not be said that the appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation, is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee".

(8) In the present case, the termination of the appellant was by an order which did not cast any stigma on him. In order to examine the plea of the appellant that the termination was passed because of the allegations of misconduct against the appellant, we perused the record produced by the respondents. It appears that the allegations against the appellant were to the effect that he had charged Rs.8.00 from a group of sixteen passengers while only ten tickets of 50 paise each were issued to them. The file however does not show that any regular enquiry was ordered or conducted against the appellant. All the papers pertain to the date of the alleged incident viz February 23,1986 and consist of a statement of Daya Ram, one of the members of the group of 16 passengers, and a spot report of the ATI. After the report of the checking Ati no enquiry was ordered against the conduct of the appellant. There is not even a note on the file preceding his termination from service. There is no finding as to the guilt of the appellant in which any stigma has been cast on him. In a recent decision by us (judgment rendered by M.J.Rao, CJ.) in The Chairman, State Bank of India and others Vs. K.L.Sehgal 1994 (31) DRf 515 ( L.P.A No. 89 of 1986 decided on October 19,1994) in regard to somewhat vexed questions as to when an order of termination is said to be founded on the allegations of misconduct of an employee and when the allegations merely serve as the motive for passing the order, it was held as follows: "KRISHNAlyerJ. had occasion to explain the theory of motive and foundation in greater detail in Gujarat Steel Tubes Vs.Gujarat Steel Tubes Mazdoor Sangh of-the said judgment. It was clearly stated, adverting to Samsher Singh's case (Supra) that there are cases where an employer may have received allegations against an employee and may say to himself that he does not wish to conduct an enquiry, but would also not like to continue the employee. In such a case, the allegations are only a motive, but where the employer conducts an enquiry and is satisfied about the allegations and then passes an order of termination, it is a case of misconduct being the foundation of the termination".

(9) When we examine the present case in the light of the aforesaid observations, it is not possible to hold that the order of termination was not founded on the allegations of misconduct against the appellant.

(10) An employee is appointed on probation in order to test whether in the long run he could be retained in service. Probationary period is a trial period in which the suitability of the probationer for the job is determined. A chance is given to him to establish his credentials for the job and at the same time an option is given to the employer to terminate his services during the period of probation if he is found unsuitable. Any action or inaction on his part can be taken into consideration while judging his overall performance and suitability. In the case of the appellant what has happened is that the employer has exercised its option to terminate his services while he was still on probation without throwing any stigma on him. This action of the employer cannot be faulted. The Supreme Court in Oil and Natural Gas Commission and others Vs. Dr.Md.S.lskander All pointed out that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained. It also held that even if misconduct, negligence, inefficiency might be the motive or the inducing factors which influenced the employer to terminate the services of the employee such termination cannot be held to be punitive.

(11) Learned counsel for the petitioner however relied upon the decisions of the Supreme Court in State of U.P. and others Vs. Sughar Singh and L.Michael and another Vs. M/s. Johnson Pumps Ltd. . The principles laid down by the Supreme Court in these two decisions have been reflected in the subsequent decision as well including Governing Council of Kidwai Memorial Institute of Oncology, Bangalore (Supra). The application of principles depends upon the facts of each case. The question whether the allegations of misconduct against an employee are the foundation or mere motive for termination of his service depends upon the facts of a particular case. In case the order of termination is pitched on the foundation of misconduct of the employee, then it would be punitive in nature but where the allegations of misconduct, negligence, in efficiency are merely the motive or the inducing factors which influenced the employer to terminate the services of the employee, no fault can be found with it. In the instant case, the learned single Judge was right in holding that the order does not fall in the former category. HAVING regard to the above discussion, this appeal fails and is accordingly dismissed.