Ram Kishan vs Delhi State (Delhi Admn.) And Ors.
2004 Latest Caselaw 1145 Del

JUDGMENT

S. Ravindra Bhat, J.

1. In these proceedings under Article 226 of the Constitution of India, an order terminating the services of the petitioner, issued by the respondent No.3 has been impugned. The grievance made out is that the termination order, is not innocuous but is based upon alleged misconduct and that since it was not preceded by an inquiry or reasonable notice, it is legally indefensible.

2. The petition was initially heard on 10th December, 2002 when an adjournment was sought to place certain documents on record. The petition was taken up for hearing on 24.9.2004 Since none appeared on behalf of the petitioner, the case was adjourned to 1.10.2004 On that day, as also on the subsequent date of hearing i.e. 8.10.2004, there was no appearance on behalf of the petitioner. In these circumstances, the petition was considered on merits. Counsel for the respondents 2 and 3 appeared and was hard.

3. The petitioner was appointed on 13.2.1985 to the temporary post of Helper in the Delhi State Civil Supplies Corporation Ltd. (hereafter the Corporation). The post of Helper was a class IV post. The appointment letter contained among others the following condition:

(iii) The appointing authority has the power to terminate the services under Central Civil Services (Temporary Services) Rules, 1965. The appointment can also be terminated at any time without assigning any reason by giving one month's notice from either side.

4. The petitioner avers that a memo was issued on 27.2.1990 to him stating that on reconciliation of accounts of his van in the mobile unit [where he was posted for the period 27.5.1989 to 27.1.1990], a shortage of Rs.1,61,899.95 (Rs. One lakh sixty one thousand eight hundred eighty nine and paise ninety five only) was detected. The memo also stated that earlier, two other memos dated 27.1.1990 and 15.2.1990 had been issued for reconciliation. The petitioner replied on 5.3.1990 refuting culpability.

5. On 8.3.1990, the third respondent, namely, Managing Director of the Corporation issued an order terminating the petitioner's service. Aggrieved, the petitioner preferred an appeal to the Chairman of the Corporation (Respondent No.2). He later approached this Court under Article 226 of the Constitution by filing Civil Writ Petition No. 689/1991. That petition was disposed off on 28.2.1991 with a direction to the second respondent to dispose off the petitioner's appeal within two months after granting him a hearing. Again the petitioner approached this Court, with a grievance that the previous order had not been complied with. This, second writ petition, namely, CWP No. 3080/1991 was disposed off by an order dated 4th February, 1992 fixing the date for hearing by the second respondent with a further direction that the appeal was to be disposed off within two months.

6. In compliance with the court's directions, a personal hearing was given to the petitioner on 12.2.1992 and the second respondent passed an order on 30.3.1992 rejecting his appeal against termination. The present writ petition impugns the order terminating the petitioner's service dated 8.3.1990 and the order dated 30.3.1992 rejecting his appeal.

7. In support of his claim the petitioner has averred that the nature of allegation made against him was such as to warrant a departmental inquiry. His case is that the memo which preceded the termination order was really the basis for the impugned action; since it imputed misconduct, the petitioner had a right to vindicate himself in a regular departmental inquiry. Certain averments have also been made in the petition to the effect that the nature of his duties did not require handling of stores or sale or maintaining of accounts/cash, store's registers etc. The petitioner further alleges that the Corporation did not issue or furnish detailed particulars about the alleged shortfall in cash enabling him to respond appropriately in that regard. He, therefore, complains of complete and utter failure of principles of natural justice.

8. The petitioner has relied upon the line of reasoning contained in various judgments of the Supreme Court such as Parshotam Lal Dhingra vs. Union of India11, Anoop Jaiswal vs. Govt. of India2 and Ishwar Chand Aggarwal3 to the effect that the court can go behind a seemingly innocuous order of termination to deduce that it is in reality a masked dismissal and hence punitive.

9. During pendency of the present proceedings, a First Information Report (FIR) was lodged against the petitioner, which led to investigation, and criminal charges being pressed against him, in respect of the amounts said to have been withheld by him. The case of the prosecution was that those amounts belonged to the respondent corporation, and the petitioner had misappropriated them. After facing trial, the petitioner was acquitted by the Metropolitan Magistrate, by judgment dated 27.10.1998. The petitioner demanded reinstatement in service. His request was refused by the corporation, in two letters, dated 26.2.1999 and 8.4.1999 These facts were brought to the notice of the court, by pleadings; the petitioner sought and was granted leave to amend the petition to incorporate them, as well as impugn the orders rejecting his request for reinstatement. On the basis of these events, the petitioner has urged that the substance of the charge against him, leading to termination from service, on the one hand and the charge in the criminal court, on the other, being the same, the respondents were duty bound to take him back into service, upon his acquittal. He has placed reliance upon the decision of the Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mine Ltd4.

10. The respondents' stand is that the petitioner's termination from service was not punitive. The petitioner was a temporary civil servant, whose services could, in terms of the terms of appointment, as well as Rule 5 of the 1965 Rules, be dispensed with at any time. According to the respondents, in the case of such employees, it is not necessary for the employer to hold a detailed enquiry. If the employer is satisfied that the employee is not fit to be continued in service, it can terminate the service of such temporary employee, in terms of Rule 5, without holding an enquiry. It has also been denied that the order of termination, in the present case was punitive.

11. Mr. Anil Kumar appeared and made submissions on behalf of Respondent Nos 2 and 3. He supported the stand taken in the pleadings of those respondents. Counsel placed reliance on the judgment of a Division Bench of this Court, in Delhi Development Authority -vs- Surinder Pal Jain5 to the effect that the termination of temporary servants or probationers without holding an enquiry does not entail punitive consequences and that any inquiry before that event would be to ascertain whether the employee is orthy of being continued in service. The judgment has also been cited as an authority for the proposition that an order of acquittal does not automatically entitle an employee who was terminated from service on the basis of those facts, to claim reinstat ment. Counsel for the respondent has also placed reliance on the decision of the Supreme Court in Union of India v. Bihari Lal Sidhana6

12. In the light of the above pleadings and submissions, the following points arise for consideration:

(1) Whether the order of termination in the present case is punitive and not preceded by an enquiry is it unsustainable in law;

(2) Whether the petitioner can legitimately seek reinstatement into service in the wake of the judgment of the criminal court, acquitting him of the charges.

Point No1: Is the order punitive

13. The issue involved here has been examined in at least a dozen judgments of the Supreme Court. After reviewing the law, involving consideration of about 14 previous judgments including Dhingra's case (supra), the Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences7 indicated the correct judicial approach in evaluating an order of termination to see whether it is punitive in nature, in the following terms:

the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (cculminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.

14. It is no doubt true that in a given case, where the facts and circumstances so warrant, the court may well go behind an order of termination that is ex-facie innocuous, and conclude that it is in truth and reality punitive in nature. However, mere existence of some material that may otherwise indicate questionable behavior of the employee, or preliminary fact-gathering, or drawing up of charges, and service of charge sheet, would not indicate that the order is punitive. As held by the Supreme Court the test is a cumulative one, where all three factors mentioned in para 12 have to be present. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service or a temporary employee to be continued in service or which purpose, satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet in that regard merely details the allegations so that the employee may deal with them effectively. By itself therefore, without anything further, the framing and service of a formal charge-sheet does not signal that the employer has concluded culpable or deviant conduct of an employee warranting a punitive consequence.

15. In Secy., Ministry of Works and Housing Govt. of India v. Mohinder Singh Jagdev8, the Supreme Court, examining a challenge to the order of termination of a temporary government servant, held as follows:

9. Rule 5 of the Rules contemplates that services can be terminated in terms of appointment. The terms of appointment clearly mentions that it can be terminated at any time without notice. Under those circumstances, the termination is in exercise of the statutory power under Rule 5 of the Rules... As already stated, the employer is entitled to terminate the services of its employee in terms of the order of appointment which confers power to take action in terms thereof. As seen, Rule 5 of the Rules clearly gives power to terminate the services of the temporary servant in terms of the order of appointment. Until the temporary service matures into permanent, he has no right to the post. At any point of time before that right accrues, it is open to the employer to terminate the service in terms of the order of appointment. This question was elaborately considered by a Bench of three Judges of this Court in Gurdev Singh case .

The decision of the Division Bench of this court in Surinder Pal Jain's case (supra) is to the same effect. That too, was a case of a temporary employee where services were terminated in exercise of powers akin to the one contained in Rule 5. The court and held that if an employer embarks upon an enquiry, it is really to adjudge the suitability of the employee in the organization; not with the objective of visiting him with a punitive order. Once the employer is satisfied about the unfitness of the emplyee after such a preliminary enquiry, it acts within its rights in invoking the power to summarily terminate the employee from service.

16. In the present case, the memos issued to the petitioner were to elicit his response about the conduct noticed. In fact, the Memo is not even a charge sheet. Its tenor does not indicate any intention to punish the employee; in fact it also establishes that the petitioner had been served with similar memos earlier. Upon receiving his explanation, the respondent corporation assessed his unsuitability, and terminated him from service. Such a determination cannot be termed as motivated, or punitive. I the efore find that the order terminating the petitioner from service was not punitive; the respondent Nos 2 and 3 acted in bona fide exercise of their powers.

Whether the petitioner can seek reinstatement, upon acquittal from criminal charges

17. The petitioner's claim for reinstatement is premised upon the contention that the substratum of his termination and the criminal charges were the same; the facts in both the cases were the same. Hence, the argument is that having faced a criminal trial, and secured acquittal, he ought to be reinstated. In the amended petition, reliance has been placed upon the decision of the Supreme Court in Captain Paul Anthony's case (supra). The petitioner appears to rely on the following passage in that judgment The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the raid and recovery at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.

18. Before proceeding further, it must be kept in mind that the termination order in the present case is not punitive. It was merely based on an assessment of the unsuitability of the petitioner in the organization. Hence, there was never any enquiry. This detail is to a great degree crucial, in that it differentiates the facts from those in Paul Anthony's case (supra). Secondly, in that case, the employee was not a termporary employee, subject to Rule 5. Lastly, the court had also reasoned that the dismssal order was based on an ex-parte enquiry, where the employee did not have sufficient means and opportunity to defend himself, due to denial of subsistence allowance, during the period of suspension.

19. The proposition that an employee whose services are terminated on account of objectionable conduct which is also subject matter of criminal proceedings, has to be reinstated upon acquittal, is not acceptable as an invariable rule. In fact, the Supreme Court, while summarizing the law on the desirability of holding parallel proceedings, i.e departmental enquiry and criminal proceedings in Capt. Paul Anthony's case (supra), held, inter alia, that:

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest

The above passage implies that if in a given case, a criminal trial is delayed, the employer can proceed with departmental enquiry, and if necessary, impose penalty for the misconduct.

20. In Bihari Lal Sidhana's case ( supra) the Supreme Court held as follows:

5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constiute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the condut is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is lways open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a chrter for him to indulge with impunity in misappropriation of public money.

The ratio of the Division Bench judgment in Surinder Pal Jain's case (supra) is in identical terms.

21. The petitioner's services were not terminated pursuant to any enquiry, unlike in Captain Paul Anthony's case. The order of termination was in bona fide exercise of statutory power; it was innocuous and non-punitive. Consequently, it was not based up on the facts that led to criminal proceedings against the petitioner. As a result, he was not entitled to claim re-instatement. Further, as noticed, there is no invariable rule that entitles a public servant to automatic reinstatement in the eventuality of acquittal in criminal proceedings, where criminal charges are the basis of a departmental enquiry leading to his termination. I, therefore hold that the petitioner cannot claim reinstatement into service upon his acquittal in criminal proceedings.

22. In the result of the foregoing discussion and findings, the petition has to fail, and is accordingly dismissed.

Rule discharged. No costs.