J.K. Thakur vs Delhi Administration & Others
1998 Latest Caselaw 1045 Del

ORDER

Vijender Jain, J.

1. Aggrieved by the order dated 22.9.1987 terminating the services of the petitioner, the petitioner has filed this writ petition. The petitioner was employed as a daily wager on 18.6.1980 at Group D post. It is the case of the petitioner that the petitioner right from the date of his appointment was given the duties attached to the post of Assistant Grade III. The petitioner has been representing to the respondent that he may be given the daily wage according to rates applicable to the post of Assistant Grade III. It has also been contended by Mr. Gupta, learned counsel appearing for the petitioner that petitioner submitted representations after representations for grant of Assistant Grade III to the petitioner, which was rejected by the respondent. On the representation dated 5.1.1985 of the petitoner respondent admitted that on account of paucity of Assistant Grade III, the petitioner was deployed on diary despatch work. As a matter of fact in the counter affidavit filed by the respondent it has been stated that the petitioner was given the duties of AG-III continuously from 17th December, 1984 and was paid from that date daily wages as permissible to AG-III. It is the case of the petitioner that in the meanwhile, he passed the typing test and he ought to have been regularised as Assistant Grade III. He has further contended that persons who were junior to him were appointed as AG-III and their services were regularised. It is the case of the petitioner that the petitioner's services were not regularised on the pretext that one Rajinder Bist who was working as class IV employee with the respondent had filed a writ petition in the High Court (CW 377/85), challenging the regularisation of the persons who were junior to the petitioner and on account of interim order passed by the High Court, the petitioner was not regularised. The services of the petitioner were terminated on the ground that he had accepted Rs.150/- from one M/s. S.R. Chadha & Sons. It is the case of the petitioner that no such money was recovered from him, no inquiry was instituted against the petitioner and as a matter of fact money was actually recovered from the bunch of bills where the money was hidden and was not in the knowledge of the petitioner. Mr. Gupta has vehemently contended that no opportunity was afforded to the petitioner and no inquiry was held, the termination of the services of the petitioner were illegal. He has further contended that as a matter of fact, the persons who were junior to the petitioner were employed as daily wager and their services were regularised as Asstt. Grade III and the services of the petitioner could not be terminated without first regularising him as AG-III and without affording him an opportunity of being heard. It has been contended that for all purposes, the petitioner was the regular employee having served the respondent from 1980 till 1987 when his services were terminated. He has further contended that no notice in terms of Section 25F of the Industrial Disputes Act was given by the respondent. Mr.Gupta has contended that the order of termination was not an order of termination simpliciter. The foundation of the order rested on the report of two officers who alleged that currency notes of Rs.150/- were found from the possession of the petitioner. Mr. Gupta has contended that if an order though apparently looking innocuous whose foundation is based on misconduct is passed by the employer opportunity of being heard, a show cause notice or a preliminary enquiry was to be held by the respondent which was admittedly not held by the respondent. In support of his submission, learned counsel for the petitioner has cited Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India and Others , Anoop Jaiswal Vs. Govt. of India and Another , Jarnail Singh and Others Vs. State of Punjab and Others , Smt. Rajinder Kaur Vs. Punjab State and Another , Appar Apar Singh Vs. State of Punjab & Others 1971 (2) SLR 71, K.H. Phadnis Vs. State of Maharashtra 1971 (2) SLR 345 and Madan Mohan Prasad Vs. State of Bihar 1973 (1) SLR 630.

2. On the other hand, counsel for the respondent, Ms.Salwan has contended that the petitioner was a temporary employee. Learned counsel for the respondent has argued that in terms of the order dated 23.4.1985, which was issued in relation to the class of employees like the petitioner, the appointment was purely on temporary basis and the services were liable to be terminated at any time without assigning any reason thereof in accordance with the conditions mentioned in the offer of appointment. She contended that DSIDC Service Regulation, Rule 2 (h) which defines employee is as under :

"Employee means a person who is in the whole time regular service of the corporation but does not include a person employed by the corporation on daily wage, ad hoc and on consolidated pay including the persons employed under apprenticeship training scheme and subsidised scheme."

3. On the basis of the aforesaid definition, the learned counsel for the respondent has contended that the petitioner did not have a right to the post being a temporary employee. She has further contended that in view of the fact that 150 rupees were recovered at the complaint of M/s S.R. Chadha & Sons from the person of the petitioner, no further enquiry was instituted by the respondent and it was expedient in the interest of the respondent to terminate the services of the petitioner. She has further contended that the order of termination was without any stigma attached to the petitioner.

In support of her contention, she has cited State of Uttar Pradesh & Another Vs. Kaushal Kishore Shukla 1991(2) JT 108, Ravindra Kumar Mishra Vs. U.P. State Handloom Corpn. Ltd. and Another 1987 (Supp) SCC 739, Union of India and Another Vs. Bihari Lal Sidhana , State of Orissa and Another Vs. Ram Narayan Das and Life Insurance Corporation of India and Another Vs. Raghavendra Seshagiri Rao Kulkarni .

4. On the basis of the aforesaid authorities, learned counsel for the respondent has contended that the order of termination simpliciter has not visited any evil consequences. The petitioner not being a regular employee of the Corporation, the respondent has rightly terminated the services of the petitioner.

5. Ms. Ansuya Salwan, learned counsel for the respondent took great pain in stressing that the petitioner has no right to hold the post as he was a temporary employee and the termination of the services by an innocuous order without casting any stigma on the petitioner and no punitive action had been initiated against the petitioner, no charges were framed against the petitioner, the order simpliciter of termination has not resulted into any evil consequences on the petitioner and therefore, the order of termination is valid and legal. In support of her contention she has cited State of Uttar Pradesh & Another Vs. Kaushal Kishore Shukla JT 1991 (2) SC 108, wherein the Court observed as under :

"In the instant case the respondent was a temporary Government servant there was adverse report regarding his work which was reflected in the adverse remarks made for the year 1977-78. The competent authority held a preliminary inquiry on the allegations of improper conduct in carrying out unauthorised audit of Boys Fund of an educational institution, on result of the preliminary enquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondents' services in exercise of its powers under the terms of contract as well as under the relevant rules applicable to a temporary Govt. Servant. It never intended to dismiss the respondent from service. Holding of preliminary inquiry does not effect the nature of the termination order. The allegations made against the respondent contained in the counter-affidavit by way of a defense filed on behalf of the appellants also do not change the nature and character of the order of termination. The High Court failed to consider the question in proper perspective and it interfered with the order of termination in a casual manner."

6. There can be no dispute to the proposition of law as enunciated in State of Uttar Pradesh Vs. Kaushal Kishore Shukla (supra). The order of termination was founded on the ACRs of the respondent in that case. Therefore, the Court held that on the basis of preliminary inquiry, the competent authority was satisfied that the person concerned was not found fit to continue and therefore the services of the respondent were terminated. The termination order was based and had the foundation on the confidential report of the respondent. Whereas in the present case before me the foundation of the order is on account of the misconduct of the petitioner. Further more it emanates from the note dated 21.9.1987 and the proximity of order of dismissal which was passed on the basis of the said note on the next date by the Managing Director of the respondent. Therefore, the authority cited by the learned counsel for the respondent has no application to the facts of this case.

7. To the same effect counsel for the respondent has cited Ravindra Kumar Misra Vs. U.P. State Handloom Corpn. Ltd. & Another 1987 (Supp) SCC 738 in which it was held :-

"Keeping in view the principles indicated above, it is difficult to accept the claim of the appellant. He was a temporary servant and had no right to the post. It has also not been denied that both under the contract of service as also the Service Rules governing him the employer had the right to terminate his services by giving him one month's notice. The order to which exception is taken is expressly an order of termination in innocuous terms and does not cast any stigma on the appellant nor does it visit him with any evil consequences. It is also not founded on misconduct. In the circumstances, the order is not open to challenge."

8. The ratio of this judgment does not help the case of the respondent. As discussed above respondent has been working as Assistant Grade-III for seven years. Respondents themselves have conducted a typing test for regularising the services of the respondent. Petitioner's services were not regularised in view of the pendency of the writ petition. To say that the petitioner did not have legitimate expectation of regularissation is far from truth. For all intent and purposes the petitioner who was working for seven years was to be regularised by the respondent in terms of their policy and to say that the petitioner did not have any right to the post is misconceived. Reasonable opportunity in terms of the law developed on service jurisprudence was to be given to the petitioner.

9. In Union of India and Another Vs. Bihari Lal Sidhana , the Supreme Court was considering the order of the High Court in directing payment of the arrears as compensation which on account of the acquittal of the respondent who after acquittal in a criminal case sought reinstatement and on the basis of the acquittal by criminal Court, the High Court found that the respondent was entitled for payment of the arrears. Supreme Court quashed the order of High Court holding that grant of compensation in lieu of arrears will amount to premium on misconduct. The aforesaid authority in no way helps the respondent.

10. In State of Orissa and Another Vs. Ram Narayan Das , a Constitutional Bench of the Supreme Court held that the petitioner whose services were dismissed did not enjoy the protection of Article 311 (2) of the Constitution as he was a probationer. In view of the facts which I have summarised above for all intent and purposes the petitioner herein was not a probationer but as a matter of fact has worked for more than 7 years with the respondent. Therefore, the ratio of this authority is also not applicable to the facts of this case.

11. I have given my careful consideration to the arguments advanced by both the parties. It is an admitted case that the petitioner was appointed as a daily wager in the year 1980. It is also admitted in the counter affidavit filed by the respondent that from 1984 the petitioner was performing the duties of AG-III. In the counter affidavit in paragraphs 4 to 9, the respondent has taken the stand the the petitioner some time performed the duties of AG-III voluntarily of his own insistence as stop gap arrangement. Subsequently in the same paragraph respondent has admitted that he was given the duties of AG-III continuously from 17th December, 1984.

12. I cannot comprehend that a daily wager can perform the duties of AGIII on his own insistence. I do not think that the petitioner was working as AG-III only from 1984 and not since 1980 in view of the vague reply given by the respondent. As a matter of fact, the respondents on 6.11.1980 has circulated a circular requesting all the Divisional Heads to furnish the information in respect of officials/officers working under their administrative control. The same is at page 89 of the paper-book. It seems that pursuant to the said circular the information was received of the duty list of the staff which has also been brought on record by the petitioner from page 90 to 93. The name of the petitioner finds mention at paragraph 16 wherein it has been circulated that the petitioner who was appointed on daily wages was working as (diary despatch work of IMFL Accounts work. Any other duty as allotted by SO/AO (IMFL) from time to time.) That duty list of the staff which is at page 90 to 93, clearly indicates and supports the stand of the petitioner that he was asked to work as AG-III right when he joined as a casual worker in Group D post. This particular duty staff chart is dated 17th December, 1981.

13. The date of the letter of termination which is at page 23 of the paper-book is 22nd September, 1987. It simply states that the petitioner stood discharged w.e.f. the forenoon of 22nd September, 1987. I find considerable force in the arguments of the learned counsel for the petitioner that this order of discharge or termination of the services of the petitioner is on the basis of a raid which was conducted on 21st September, 1987. There was a note prepared by two officers of the respondent which reads as under :

URGENT (SECURITY WING) No.DSIDC/U.C.-13/87 the 21st,September.1987

Today in the evening around 5 p.m. one Sh. Sanjay Chadha of M/s. S.R. Chadha & Sons Chadha Associate personally met and complained to the Chairman that his representatives were being harassed now and then by one Sh. J.K. Thakur working with IMFL Accounts while submitting his bills etc. He further stated to Chairman that it was so that he finally opted to personally refer the matter to Chairman, with an incident that occurred with him personally on 21st September.1987.

The incident that occurred with Mr. Sanjay Chadha on 21st Septem ber1987 as reported to Chairman by him was that Sh. Chadha on demand gave rupees one fifty (Rupees one hundred fifty only) consisting of one currency note of rupees one hundred bearing No. 443234 and one currency note of rupees fifty bearing No.6211043 before his bills were accepted by Sh.Thakur. Soon after the deal between the two was over, Sh. Sanjay Chadha immediately reported the incident verbally to the Chairman. Under instructions the raid was conducted and the currency notes referred above were recovered from Sh. J.K. Thakur.

The Chairman further desired that a formal written complaint may also be obtained from the complainant Sh.Sanjay Chadha. It is regretfully stated that the complainant declined to give the written complaint to the under signaturies and instead preferred it better to submit the same personally to the Chairman, the following day, what he stated to us. Currency notes referred above are also attached herewith please.

Submitted for orders please.

  Sd/-    Sd/-
 (JARNAIL SINGH)   (G./N. KUKRETI) 
 ASSTT. MANAGER (P)  SECURITY OFFICER 
 the 21st September 87  the 21st, September.87
 

 14. The aforesaid note dated 21st Sept.1987 was put up before the Managing Director which recorded as follows : 
   

 "May kindly see the note down. Shri J.K. Thakur is a daily rated person not covered under our rules. This category of persons are not considered as an employee of the corporation. I therefore propose to discharge Shri Thakur from service immediately. Money may be returned to the owner. 
 

 Sd/- 
 22.9.1987 
 

15. On the basis of the note emanated on 21st, September, 1987, the petitioner's services were terminated on 22nd, September, 1987. Therefore the order of termination of the service though worded in an innocuous language was not an order of termination of services simpliciter without having penal consequences. The foundation of the order of termination was based upon the note of the officers who alleged to have found 150 rupees from the person of the petitioner. Although this allegation has been denied by the petitioner.

16. Let me deal first with the arguments of the respondent that petitioner being a daily wager did not enjoy the same privilege which regular employees enjoy.

17. The Supreme Court in Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India and Others has held :

"The allegation made in the petitions to the effect that the petitioners are being paid wages far less than the minimum pay payable under the pay scales applicable to the regular employees belonging to corresponding cadres is more or less admitted by the respondents. The respondents, however, contend that since the petitioners belong to the category of casual labour and are not being regularly employed, they are not entitled to the same privileges which the regular employees are enjoying. It may be true that the petitioners have not been regularly recruited by many of them have been working continuously for more than a year in the Department and some of them have been engaged as casual labourers for nearly ten years. They are rendering the same kind of service which is being rendered by the regular employees doing the same type of work. Clause (2) of Article 38 of the Constitution of India which contains one of the Directive Principles of State Policy provides that "the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations." Even through the above Directive Principle may not be enforceable as such by virtue of Article 37 of the onstitution of India, it may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination. It is urged that the State cannot deny at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. We are of the view that such denial amounts to exploitation of labour. The Government cannot take advantage of its dominant position and compel any worker to work even as a casual labourer on starving wages. It may be that the casual labourer has agreed to work on such low wages. That he has done because he has no other choice. It is poverty that has driven him to that state. The Government should be a model employer. We are of the view that on the facts and in the circumstances of this case the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lower rungs of the department where the pay scales are the lowest is not tenable. The further classification of casual labourers into three categories namely (i) those who have not completed 720 days of service; (ii) those who have completed 720 days of service and not completed 1200 days of service and (iii) those who have completed more than 1200 days of service for purpose of payment of different rates of wages is equally untenable. There is clearly no justification for doing so. Such a classification is violative of Articles 14 and 16 of the Constitution. It is also opposed to the spirit of Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966 which exhorts all States parties to ensure fair wages and equal wages for equal work. We feel that there is substance in the contention of the petitioners.

18. In view of the fact that petitioner has been continuously working formore than 7 years with the respondent and was performing the same kind of service which was done by the regular employees doing same type of work it cannot be said that the petitioner had no right even for a fair opportunity of being heard or an opportunity to explain his conduct in view what was alleged to have been recovered from his person. The manner and method of summary dismissal for an employee who has been working for seven years with the respondent. The respondents themselves have conducted typing test for his regular appointment to the post of AG-III. Admittedly respondent was taking work from the petitioner pursuant to the duty chart of the respondent. It cannot be held that the petitioner has no right, an elementary right of being given an opportunity to explain his conduct. The stand of the respondent on this ground is not tenable.

19. Now let me examine as to whether the order terminating the services of the petitioner was an innocuous order? Whether order of discharge was an order of termination simpliciter or was based upon misconduct.

20. Supreme Court in Anoop Jaiswal Vs. Government of India and another has held :-

It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open for the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.

In the instant case, the period of probation had not yet been over. the impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely arriving late at the Gymnasium and acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquires were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.

21. The proximity of the dates of two orders that is note of the two officers dated 21st September, 1987 and the resultant order of termination of 22nd September, 1987, I have no hesitation in holding that the order of termination was in reality a cloak for an order of punishment.

22. Similar is the view taken in Jarnail Singh and others Vs. State of Punjab and Others "In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such a case, will lift the veil and will see whether the order was made on the ground of isconduct/inefficiency or not."

23. Similar view was taken in Smt. Rajinder Kaur Vs. Punjab State and Another .

24. In Appar Apar Singh Vs. State of Punjab & others 1971 (2) SLR 71, Supreme Court held that motive behind order and foundation of order when such order amounts to reduction of rank cannot merely be decided on the form of the order but regard had to be given to attendant circumstances and held that the officiating and temporary Government servants are also entitled to the protection of Article . of the Constitution in the same manner as permanent Government servants, if the Government takes action against them by meting out one of the punishments, i.e. dismissal, removal or reduction in rank.

25. Constitutional Bench of the Supreme Court in K.H. Phadnis Vs. State of Maharashtra 1971 (2) SLR 345 in the matter where the incumbent was holding a temporary post but he continued on the post for several years held as follows :

"The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore, though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of the substance and are relevant factors to be considered in ascertaining whether the order is a genuine one of 'accident of service' in which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not 'a pure accident of service' but an order in the nature of punishment, Article 311 will not be attracted."

26. To some what similar effect is another judgment of Constitutional Bench of the Supreme Court reported in Madan Mohan Prasad Vs. State of Bihar and Others 1973 (1) SLR 630.

27. In view of the discussions above, I hold that the order of termination though couched in an innocuous language has its foundation in the misconduct of the petitioner and proximity of the events as stated by me above shows that order has visited penal consequences on the petitioner. The order is bad in law and therefore, the order dated 22.9.1987 terminating the services of the petitioner is quashed. The respondents are directed to pay all arrears of charges in accordance with the rules of the respondent. The respondents are also directed to regularise the services of the petitioner in accordance with the policy and the guide-lines in this regard.

28. Petition stands disposed of. Rule is made absolute. No order as to costs.