Bhanwar Lal vs Union Of India & Anr.
2012 Latest Caselaw 1159 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP(C) No.1007/2012

%                         Date of Decision: 21.02.2012

Bhanwar Lal                                                  .... Petitioner

                        Through Mr.Asish Nischal, Advocate

                                  Versus

Union of India & Anr.                                  .... Respondents

                        Through Mr.Sachin Datta, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

*

1. The petitioner who was enrolled as a Vehicle Mechanic with the

respondents, the Border Roads Organisation, for a period of two years

on probation up to 7th June, 2013 has challenged the order dated 10th

December, 2011 passed by the respondents terminating his service

under the Provision of Sub Rule (1) of Rule 5 of Central Civil Service

(Temporary Service) Rules, 1965. While terminating the service of the

petitioner, it was also held that he would be entitled to claim a sum

equivalent to the amount of his pay plus the allowances for the period

of notice, at the same rates at which he was drawing them

immediately before the termination of his service, or, as the case may

be, for the period by which such notice falls short of one month.

2. The brief facts to comprehend the disputes are that the

petitioner was enrolled on 8th June, 2011 and was granted the service

No.GS-196381W, while being initially put on probation for a period of

two years w.e.f. 8th June, 2011 up to 7th June, 2013. According to

him, at that time an inquiry was conducted into the alleged

irregularities/malpractices committed during the recruitment by the

Boards/Centers and GREF Centers. Reliance has also been placed by

the petitioner on the communication dated 17th October, 2011 issued

by the Secretary Ministry of Road Transport and Highways,

respondent No.1, to the Director General, Border Roads, respondent

No.2, disclosing that pursuant to the inquiries held in respect of the

recruitment of MT Drivers/Electricians/Vehicle Mechanics in BRO, it

was noticed that the recruitment had not been conducted in a

transparent manner and thus, the entire selection process was to be

vitiated. The petitioner had also referred to another letter dated 18th

November, 2011 by the Secretary Ministry of Road Transport and

Highway issued to the Director General, Border Road, directing him to

proceed in accordance with Rules 5 (1) of the CCS (Temporary Service)

Rules, 1965 pursuant to which, the Director General had issued a

letter dated 22nd November, 2011 to the respective units for the

termination of the services of the recruits enrolled pursuant to the

advertisement issued in the month of June, 2010.

3. Thereafter on 10th December, 2011 the respondents issued the

impugned Termination Order, whereby the services of the petitioner

was terminated.

4. The petitioner has challenged this order of termination by filing

the present writ petition on the ground that it casts a stigma and is

punitive in nature and thus it could only be effected after conducting

a proper inquiry against him and after affording the petitioner a

reasonable opportunity of being heard in compliance with the

principles of natural justice.

5. According to learned counsel for the petitioner, the respondents

should have conducted an inquiry in order to ascertain as to what

was the foundation for terminating the service, and that termination

could not be imposed by way of a punishment. Thus it is urged that

the termination of the petitioner‟s service is not a discharge

simplicitor. According to the petitioner, since the termination of the

petitioner was based on the inquiry conducted by the respondents,

however, since the petitioner was not involved in the inquiry,

therefore, the termination is in violation of the various decisions of the

Courts, as it causes a stigma on the petitioner and is also punitive in

nature and thus the principles of natural justice have not been

complied with.

6. Learned counsel for the petitioner has also relied on a decision

of the Division Bench of this Court in the case of Union of India v.

Nand Kishor Aggarwal & Anr., 155 (2008) DLT 202 wherein the

Division Bench had noted that as per the law laid down by the

Supreme Court, if the termination is punitive in nature, an enquiry is

required to be held and the principles of natural justice are required

to be followed. But where the discharge order and the motive for the

discharge is simply unsatisfactory work, then the discharge being

discharge simplicitor, there is no necessity of holding a departmental

enquiry.

7. The learned counsel for the respondents who has appeared

pursuant to an advance notice has contended that the writ petition

against the order of the termination deserves to be dismissed since

the said order is not at all punitive in nature and that it only amounts

to a discharge simplicitor. According to the learned counsel, the

enquiry referred to by the petitioner did not impute any misconduct

against the petitioner and that consequently it cannot be contended

that the termination order has been passed against the petitioner as a

punishment nor does it cast any stigma on the petitioner. It has also

been pointed out that all other employees who had been selected

pursuant to the recruitment for the year 2011 as stipulated in the

enquiry had been terminated along with the petitioner. Thus it is

urged that the order of termination has not been arbitrarily imposed

on the petitioner alone, but was a necessary consequence of an

administrative decision taken by the respondents.

8. This Court has heard the learned counsel for the parties in

detail. The bone of the contention in the present matter is

undoubtedly whether the termination order dated 10th December,

2011 is punitive or not. If indeed the termination order is punitive in

nature, as contended by the learned counsel for the petitioner, then

the law contemplates that the employee concerned could only be

discharged after holding an inquiry as per Article 311(2) of the

Constitution of India. Whereas, if on the other hand, the said order

would only tantamount to a discharge simplicitor as per the pleas of

the respondents, then no inquiry was required and the order in itself

would suffice.

9. The factors to be considered while analyzing whether a

termination order is punitive or not, has been crystallized by the

Supreme Court in numerous cases. Consideration of few of these

cases at this stage would elaborate the law already laid by the Courts

in this regard.

10. In the case of Radhey Shyam Gupta v. U.P. State Agro

Industries Corporation Ltd. & Anr., AIR1999SC609 the Supreme

Court had held as follows :

"34. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case : (1961) I LLJ 552 SC . It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case: (1964) I LLJ 752 SC. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a

charge-memo issued, reply obtained, and an enquiry officer is appointed - if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur: (1970) I LLJ 373 SC and in Benjamin case (1967) 1 LLJ 718 (SC). In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case: (1980) I LLJ 137 SC the employer was entitled to say that he would not continue an employee against whom allegations were made, the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.

35. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive.

These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases."

11. In State of Orissa v. Ram Narayan Das: (1961)ILLJ552SC it

was held by the Supreme Court that one should look into the 'object

or purpose of the enquiry' and not merely hold the termination to be

punitive because of an antecedent enquiry. Whether the order of

termination amounts to an order of dismissal depends upon the

nature of the enquiry, if any, the proceedings taken therein and the

substance of the final order passed on such enquiry. On the facts of

that case, the termination of a probationer was upheld by the

Supreme Court since it was concluded that the purpose of the

enquiry was not to find out if the concerned employee was guilty of

any misconduct, negligence, inefficiency or other disqualification,

but instead the purpose of the inquiry was to find out if the

employee could be confirmed.

12. Similarly in the case of Pavanendra Narayan Verma v. Sanjay

Gandhi PGI of Medical Sciences & Anr. : (2002) I LLJ 690 SC, the

Supreme Court laid down the test to determine the nature of the

termination order, i.e. whether the termination is punitive or

simplicitor. The Apex court had observed as follows:

"21. One of 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 (c) culminated 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 to be upheld."

13. It was further observed that the Court has to firstly ascertain

if the order of termination imputes any stigma on the employee

concerned. The relevant para of the said judgment of the Supreme

Court is as follows:

"28. Therefore whenever a probationer challenges his termination, the courts first task will be to apply the test of stigma or the 'form' test. If the order survives this examination the 'substance' of the termination will have to be found out.

29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking the stigma is implicit

in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."

14. Thus, it is imperative to ascertain if any stigma has been

imputed against the petitioner by the impugned termination order.

The said termination order is as under:

"ORDERS OF TERMINATION OF SERVICE ISSUED UNDER THE PROVISOIN TO SUB RULE (1) OF RULE 5 OF THE CENTRAL CIVIL SERVICES (TEMPORARY SERVICE) RULE 1965

1. In pursuance of the provision to sub rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rule 1965, I Ram Milan, SE (Civ) FS Commander 763 BRTF (GREF) hereby terminate forthwith the services of GS- 196381W Veh/Mech Bhanwar Lal of 117 RCC/763 TF and direct that he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing them immediately before the termination of his service or, as the case may be, for the period by which such notice falls short of one month."

15. A perusal of the said order makes it amply clear that the same

does not impute any stigma on the petitioner nor does it divulge the

cause of the termination as being any kind of misconduct, negligence,

inefficiency or other disqualification on the part of the petitioner.

Prima facie, the termination letter only amounts to a discharge

simplicitor.

16. However, the petitioner has contended that the language of the

said order is misleading as it is not a case of discharge simplicitor but

in fact is punitive in nature, as it was a consequence of the enquiry

that preceded it. Reliance has also been placed on the communication

dated 17th October 2011 to contend that the contents of the said letter

clearly divulge that the inquiry was the reason for the termination of

the petitioner from the service. The order relied on by the petitioner is

as follows:

"Subject: Irregularities in recent recruitment for the posts of MT Drivers, Electricians and Vehicle Mechanics in BRO-cancellation of selection process reg.

Reference this Sectt.ID Note of even number dated 26th August, 2011 and Dte. GBR No.1240/Complaint/DGBR/EG2 dated 12th September, 2011 regarding the above subject.

2. The undersigned is directed to state that consequent to the inquiry conducted into the alleged irregularities/malpractices in recent recruitment for the posts of MT Drivers, Electricians and Vehicle Mechanics in BRO, it has been proved that the said recruitment has

not been committed by the Recruitment Boards Centres and GREF Centre and thus the entire selection got vitiated, it has therefore been decided as under:-

(a) The entire selection of Electrician, Vehicle Mechanic and MT Driver (Orc Gde) carried out against BRO Advertisement No.1/2010 is hereby cancelled and the services of all those Veh.Mech candidates who have been inducted in GREF Centre, Pune for training be terminated forthwith under Rule 5 of CCS Temporary Service Rule by giving them one month‟s pay in lieu of notice as per the said Rule.

(b) The Officers responsible for vitiated selection process for these 3 test especially at Rishikesh and Pune centres should be punished under relevant rules, especially the concerned Board of Officers who took interview/Viv voice, practical/written tests, the then Commandant GREF Centre Pune and in charge of these tests as well as Chief Engineer (Rishikesh) for lack transparency and gross irregularities/malpractices.

3. Accordingly, DGBR is requested to take action on the above decision immediately and furnish an action taken report urgently.

4. This issues with the approval of Hon‟ble Raksha Mantri."

17. As held in Pavanendra Narayan Verma (supra), firstly it is

imperative to ascertain the 'nature of enquiry' i.e. whether the

termination was preceded by a full scale formal enquiry into the

allegations of misconduct on the part of the employee concerned,

which culminated in the finding of guilt. It is clear that in the

present facts and circumstances no such inquiry specifying any

allegations of misconduct against the petitioner were initiated. It is

also not the case of the petitioner that he had been made party to

the above mentioned inquiry wherein a finding of his guilt had been

arrived at. Secondly, perusal of the above stated communication

also reveals that the „purpose of the enquiry', was to inquire into the

alleged irregularities/malpractices in the recruitments to the post of

MT Drivers, Electricians and Vehicle Mechanics in BRO committed

by the Recruitment Boards and officers in certain centers, and not

the candidates including the petitioner who had appeared for the

same. It is further stipulated in the communication that a decision

was taken to vitiate the selection due the malpractices and to

initiate action against Officers who were responsible for vitiating the

selection process for the tests especially at Rishikesh and Pune

centers. It is also evident that the entire selection has been

cancelled and thus it is not the petitioner alone who had been

terminated pursuant to the said enquiry, but in fact all the

candidates who had appeared for the said recruitment had been

terminated as well. The petitioner also has been unsuccessful in

contenting any cogent grounds for substantiating his plea that the

impugned order has cast a stigma on him.

18. In the facts and circumstances, it is clear that the impugned

termination order is a case of discharge simplicitor and that it was

due to administrative reasons that the respondents had deemed it

necessary to terminate the services of all the candidates who had

appeared for the said recruitment, as malpractices and irregularities

on the part of the Recruitment Board had been detected by the

concerned authorities. The nature of the enquiry conducted prior to

the termination order also was only preliminary in nature and not a

full scale formal enquiry against the petitioner so as to lead to the

inference that the object of the enquiry was to determine the guilt of

the petitioner. No specific allegations were made against the

petitioner nor any specific lapses or connivances had been

attributed to the petitioner. Therefore, the order of termination

cannot be held to be punitive in nature and consequently there was

no requirement to conduct an inquiry before terminating the

services of the petitioner. In the facts and circumstances, it also

cannot be inferred that the foundation of termination of the services

of the petitioner was the preliminary enquiry conducted by the

respondents in the process of selection.

19. For the foregoing reasons and in the totality of facts and

circumstances, there are no grounds for this Court to exercise its

jurisdiction under Article 226 of the Constitution of India and to

interfere with the termination of the petitioner. The writ petition is

without any merit and it is, therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

FEBRUARY 21, 2012 vk