Subhash vs Lt. Governor Of Delhi And Ors.
2003 Latest Caselaw 106 Del

JUDGMENT

S.K. Mahajan, J.

1. The short point involved in the case is whether the services of the petitioner could be terminated taking recourse to the provisions of Rule 5 of the Temporary Civil Service Rules when in fact the action is taken against the petitioner on the basis of the report of the Enquiry held into the allegations levelled against him. The facts in short relevant for deciding this petition are :

Petitioner was appointed as a Junior Engineer on ad-hoc basis initially vide order dated 9th August, 1988. Petitioner joined the service on 12th August, 1988 and was posted in the Bridge Division-I of the respondent as Junior Engineer vide order dated 23rd August, 1988. Vide the order dated 19th April, 1989, the ad-hoc appointment of the petitioner was changed to appointment purely on temporary basis with prospects of further continuation depending upon the availability of post and completion of requisite formalities. By the same order 66 junior engineers were appointed on temporary basis and the name of the petitioner in this list, in order of seniority, was at S.No.11. The petitioner had alleged to have worked with sincerity, devotion to duty and with integrity as Junior Engineer in the area allotted to him and had alleged to have got prosecution launched against certain persons for unauthorised construction carried out by them in the South Zone. Certain complaints were received in the office against the petitioner for his allegedly being involved in huge unauthorised commercial construction in Lajpat Nagar-II, New Delhi. On the basis of the said complaint, respondent No.3 got all the premises inspected through the Executive Engineer who after inspection submitted his report on 16th June, 1990. The respondents without holding any further enquiry in the matter passed an order on 29th June, 1990 under sub-Rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 terminating the services of the petitioner by giving him one month's notice. This order has now been challenged by the petitioner by way of the present petition on the ground the order is not a simple order dispensing with the services of the petitioner on the ground that the petitioner was not found suitable for the post but the same was punitive in nature and thus the same is wholly illegal, unconstitutional, arbitrary, discriminatory and contrary to the procedure established by law.

2. Besides other grounds taken in the petition to challenge the aforesaid order of termination one of the grounds taken by the petitioner is that the order of termination under Rule 5 of the Central Civil Services (Temporary Service) Rules is not an order simpliciter but was pass in the colourable exercise of powers by the respondent and the same was punitive in nature. It is submitted that termination is based on findings of the enquiry into the allegations made in a private complaint received by the respondent against the petitioner and the petitioner has not been given any opportunity to reply to the allegations made in the said complaint and taking the same as true, the services of the petitioner have been terminated in an arbitrary manner. For this, reliance has been placed by learned counsel for the petitioner upon the judgment of the Supreme Court reported as Chandra Prakash Shahi Vs. State of Uttar Pradesh and others- .

3. Referring to large number of cases on the subject, the Supreme Court in the aforesaid case has held that 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 truch 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". It was further held that "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. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled 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 the 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.

4. To find out whether the order passed by the respondents was an order under Rule 5 simpliciter or was by way of punishment based on the allegations made against the petitioner, the Court had directed the respondents to produce the relevant file in Court. Respondents have today produced the office file. A perusal of the file shows that on receipt of a complaint the Additional Commissioner (Engineering) vide his remarks dated 24th May, 1990 desired to get the matter checked to find whether there was any substance in the complaint against the petitioner. The sites were, accordingly, checked and a report was submitted by the Additional Commissioner. On the basis of the report the Executive Engineer (Co-ordination) put up a note on 28th June, 1990 that in respect of the properties bearing No.K-77, O-4, J-2, Lajpat Nagar-II, New Delhi excess coverage beyond compoundable limit and extra storey was found to exist at site and no effectives step was taken in those cases by the Zonal staff. The Executive Engineer (Co-ordination) therefore, concluded that area Junior Engineer, namely, the petitioner had miserably failed to take timely and effective action in these unauthorised construction and recommended for regular departmental action against the petitioner for major penalty. Despite the fact that a preliminary enquiry was held to find out the truth of the misconduct alleged to have been committed by the petitioner and the Executive Engineer had recommended the regular departmental action for major penalty, the Engineer-in-Chief on 28th June, 1990 passed an order that the petitioner had committed grave irregularities in not stopping the unauthorised construction and had also failed to take appropriate action as provided under the Rules to discourage these unauthorised construction and thereby failed to maintain absolute devotion to duty. It was held that since the petitioner had committed grave misconduct in discharging his official duties, his services be terminated under sub-Rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. The services of the petitioner were, accordingly, terminated by the impugned order.

5. Applying the principles laid down on Chandra Prakash Shahi Vs. State of Uttar Pradesh (supra), it is clear that the action against the petitioner has been taken on the basis of the report of enquiry conducted by the Zonal Engineer to find out whether the allegations made against the petitioner were correct. No opportunity of hearing was given to the petitioner to rebut the allegations made against him nor any explanation of the petitioner to these allegations or complaint was sought. It is now well-settled that if the order of termination under Rule 5 is based upon a report of the Enquiry held to find out the truth of the misconduct, it would be punitive in nature. It is not a case where the enquiry was held by the department to find out the suitability of the petitioner in service. It was clearly an Enquiry held on the allegations made against the petitioner and despite the fact that the Executive Engineer had recommended the regular departmental action against the petitioner, the Engineer-in-Chief has chosen to pass an order under sub-Rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. Since the order is based upon the allegations made against the petitioner and the petitioner has not been given any opportunity to explain or defend himself and the principles of natural justice having been violated, in my opinion, it is a fit case to set aside the impugned order of termination of services of the petitioner. The order of termination being punitive in nature, I set aside the same and the respondent is directed to reinstate the petitioner with continuity of service and all consequential benefits. This order, however, will not, in any manner, come in the way of the respondent to initiate departmental enquiry, as may be permissible in law, against the petitioner. In the facts of this case, however, I leave the parties to bear their own costs.