Lokesh Kumar Kushwah S/O Niranjan ... vs The State Of Rajasthan
2021 Latest Caselaw 1394 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 12446/2020

Lokesh Kumar Kushwah S/o Niranjan Lal Mali, Aged About 33
Years, R/o Near Of Drda Office, Jagdamba Colony, Tehsil And
District Karauli (Rajasthan)-322241
                                                                    ----Petitioner
                                    Versus
1.     The State Of Rajasthan, Through Its Principal Secretary,
       Rural Development And Panchayati Raj Department,
       Government        Of     Rajasthan,         Government        Secretariat,
       Jaipur.
2.     The State Mission Director, Rajasthan Gramin Aajeevika
       Vikas     Parishad,     Udhyog        Bhawan,         C-Scheme,     Jaipur,
       Rajasthan.
3.     The State Project Manager (Human Resource), Rajasthan
       Gramin Aajeevika Vikas Parishad, Udhyog Bhawan, C-
       Scheme, Jaipur, Rajasthan.
                                                                 ----Respondents

For Petitioner(s) : Mr. Vigyan Shah, Adv.

For Respondent(s) : Mr. Pradeep Kalwania, Adv.

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Judgment / Order

Reserved On 13/01/2021 Pronounce on 09/02/2021

1. Both the counsels agreed that the present writ petition may

be decided at this stage. Hence, the writ petition was finally heard

and the judgment was reserved.

2. Instant writ petition has been filed by the petitioner assailing

the order dated 06/10/2020, passed by the State Project Manager

(Human Resources), Rajasthan Gramin Aajeevika Vikas Parishad

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(respondent No.3) by which the services of the petitioner have

been dispensed with and he has been relieved from the post.

3. Brief facts which require to be considered for adjudication of

the present case are that the petitioner had applied for the post of

State Project Manager, Value Chain and Forward Linkage under the

advertisement issued by the T & M Services Consulting Pvt. Ltd. in

December, 2019 which mentioned for requiring Manpower on

contract basis for providing professional services in Central/State

Government Projects of the Rajasthan Gramin Aajeevika Vikas

Parishad (for short, 'RGAVP'). Apart from the aforesaid post, other

posts were also advertised.

4. The petitioner applied under the said advertisement and was

selected for the post of State Project Manager, Value Chain and

Forward Linkage after clearing the written examination and

interview.

5. The interviews were conducted by the Committee of RGAVP

and was offered appointment on 16/07/2020. The petitioner

resigned from the post of Chief Executive Officer which he was

holding in Jagroti Kisan Producer Co. Ltd. to join with the state

Government on a consolidated remuneration of Rs.70,000/- per

month. He was appointed for a period of one year which was to

end on 16/07/2021 with the stipulation of extension for five years.

After resignation from earlier employer i.e. Jagroti Kisan Producer

Co. Ltd., the petitioner joined on 17/07/2020 as State Project

Manager, Value Chain and Forward Linkage. Vide another order

dated 21/07/2020, the respondent RGAVP affirmed the fact of the

petitioner having joined the post. The petitioner was paid salary

for the first one and half month on 11/09/2020, however, vide

order dated 06/10/2020, he was served with the termination order

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which contained the conditions mentioned in Rules 3.5 & 3.6 of HR

Manual and invoking the same, his services were terminated with

immediate effect and was also relieved from the post.

6. The petitioner has challenged the said order in the present

writ petition, inter-alia, on the grounds that the same is illegal and

arbitrary and has been passed by an officer not having authority

to terminate services of the petitioner. It is further submitted that

his services could be terminated under the signature of the State

Mission Director (SMD) whereas the order has been passed by the

State Project Manager (Human Resources), RGAVP

7. Learned counsel for the petitioner further submitted that the

order impugned is stigmatic andhas been passed in exercise of

colourable power and is in violation of principles of natural justice.

It cannot be said to be an order simpliciter. Learned counsel

further submitted that the petitioner just left his earlier coveted

job and his performance cannot be said to be below level within

three months of his appointment and the action has been taken

arbitrarily and illegally mainly on account of extraneous reasons

and considerations. There was no letter served upon the petitioner

relating to any complaint of dissatisfaction or even no letter was

issued for asking the petitioner to improve his performance. As

per the HR Manual, the performance is to be assessed periodically

and the feedback was to be provided to the employee. Even in

cases where the performance is below level, the probation period

is extended by six months so that the person may improve.

However, the respondents proceeded to terminate services of the

petitioner within a period of three months of his joining. It is

submitted that the petitioner had taken up the issue relating to

accepting of commissions by certain officers i.e. his higher-ups but

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instead of taking appropriate action against the concerned

officials, services of the petitioner were dispensed with.

8. The respondents had entered as caveators and therefore,

copy of writ petition was served upon them and reply has been

filed. Thereafter, rejoinder and sur-joinder have also been filed.

9. Learned counsel for respondents submitted that the

petitioner was not an employee of the State Government but was

engaged as contractual employee on a time bound scheme for a

particular work under NRETP Project. He did not perform properly

and therefore his engagement on contract basis was terminated.

Initially, the respondents raised objection relating to

maintainability of the writ petition. However, the counsel for

respondents dropped the objection during course of arguments

stating that he does not press the issue relating to maintainability.

10. The respondents have stated that the allegation of the

officials taking commissions for their works as levelled by the

petitioner was false and that the reasons are coming out forthwith

from the letter dated 06/10/2020. The respondents have stated

that the Government of India had expressed dissatisfaction and

annoyance with the work of Value Chain and Forward Linkage and

the e-mail dated 01/10/2020was handed over to the petitioner.

11. It is stated that the petitioner was warned several times and

the objective of National Rural Economic Transformation Project

(NERTP) is to establish efficient and effective institutional

platforms in order to increase the household income through

sustainable livelihood enhancements, and improved access to

financial and selected public service. The Government of India and

World Bank funded the National Rural Economic Transformation

Project. This Project was launched in the year 2019-20 to promote

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Value Chain, Forwarding Linkage and enterprises development. It

is being implemented in 36 blocks of 9 Districts. Out of these 9

District 6 Districts were identified for the formation of Produce

Group- PGs and the remaining 3 Districts were identified for

Producer Company to be formed for Dairy Value Chain and

Agriculture Value Chain. In the initial phase the target of 6 Blocks

was taken to implement the project by Formation of Producer

Group of Livestock and Agriculture. Till the end of financial year

2019-20 the Target of Livestock Producer Group formation was

achieved along with Udhyum Sakhi Module Development, Training

of Udhyum Sakhi Livestock and Account opening of Livestock

Producer Groups etc. For Dairy Value Chain Development the

Memorandum of Understanding was done with the National Dairy

Service to implement the same in three Districts Kota, Baran and

Jhalawar.

12. In the year 2020-2021 this project was expanded in the

remaining 27 blocks identified in 9 Districts. In the years 2020-21

the target of Livestock Producer Group is 276, in Agriculture

Target of Producer Group is 276 along with 60 PGs of the year

2019-20.

13. The SPM Value Chain and Forward Linkage under NRETP

joined on 17th July, 2020. He has to take up both Forward Linkage

Livestock and Agriculture activities as per planning of the year

2020-21, initially being a new appointee and fresh here, he as

given only the charge of Forward Linkage - Agriculture. But since

17th July, 2020 to the end of September the progress of NRETP

Agriculture - Forward Linkage was not improved in NRETP, such

as-

Base Line survey;

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Module Development of Udhyam Sakhi Training ;

Udhyam Sakhi Training

Producer Group Formation;

Bank account opening of Producer Group

Working capital and one time grant to producer groups

Request for Proposal Finalization for taking technical support

agency on board for value Chain etc.

The coverage of 2020-21 till September 2020 has been as

under :

Activity Target Achievement

14. As NRETP is a time bound project and the Government of

India is rigorously monitoring to achieve the time bound progress

to ensure the achievement experienced professional were selected

to support the value chain and forward Linkages, Digital Financial

institutions etc.

15. Because of non-start-up of value chain related activities

Rajeevika is unable to promote PGs and provide support to SHG

members in th farm sector in the Kharif season as the Physical

progress of NRETP is Low, so the Respondents were not able to

take next installment of Fund from NRETP and the budget or RS.

93983200/- could not be spend along with TSA cost of

approximately RS. 60 lakhs as per the Annual Action Plan of 2020-

21 of NRETP. Approximately 26886 HHs could have been mobilized

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under 336 Producer Groups of PG to provide the benefit to them

such as-

Employment to SHG HHs- 336 Udhyam Sakhi

Fund of 552 lakhs to 275 PGs

Honorarium to Udhyam Sakhi agriculutrure'

Technical Support to HHs;

Value Chain and Forward Linkage of Agriculture Commodities

of 26880 HHs etc.

16. In October 2020 the progress of NRETP Agriculture has been

improved such as Agriculture Udhyam Sakhi Training Module

Development, Training of Udhyam Sakhi Agriculture, Formation of

Producer Group, Producer Group Books of record etc.

Agriculture Coverage in October 2020

Activity Target Achievement

Households 26,880 17485

17. A negative remark was made about his performance by SPM

(M & E) and forwarded by the Project Director, RGAVP. on work

done report which was submitted to the State Mission Director,

RGAVP.

18. It is further stated by the respondents that on the basis of

SPM (M&E) remarks the State Mission Director, RGAVP expressed

dissatisfaction regarding the work of the Petitioner and queried

about Request For Proposal preparation, which has been

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mentioned in the work done without specified target. In this

regard a Committee was constituted by the State Mission Director,

RGAVP to review the work performance of the Petitioner. The said

Committee observed that the Petitioner doesn't have the capacity

to lead this vertical, which affects the overall progress of the core

activities of the NREPT.

19. It is further submitted by the respondents that as the

petitioner could not reach up to the mark, he was de-selected in

terms of Clause 3.5 of the HR Manual and there was no

requirement of notice. Similarly, Clause 3.6 of the HR Manual has

been relied upon to submit that the petitioner had been de-

selected as he was not upto the required level. It is stated that the

petitioner was not sent for induction as the field induction was on

hold due to Covid-19 and was attached with Agri Based Livelihood

for 15 days. The respondents have further stated that the

petitioner was not required to be given formal training as already

he was having experience of 10 years. Learned counsel has

further placed the note-sheet to submit that approval was taken

from the Managing Director, SMD, RGAVP and Additional Chief

Secretary, (RD & PR) and has placed on record note-sheet in

support of these averments.

20. Rejoinder has been filed and contention of the respondents

have been denied by the petitioner. Apart from reiterating the

stand taken, the petitioner has further stated that termination of

the petitioner is on false and baseless grounds. He had never been

served with notice regarding poor performance nor there was any

complaint from any stake holder. Even the report as placed on

record by the respondents does not show any negative remark by

his superior. No negative incident or any warning was ever issued

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to the petitioner and the order has been passed whimsically.

Moreover, learned counsel for the petitioner in his rejoinder has

pointed out that performance of the petitioner had improved which

is available from the table as placed by the respondents. As far as

the assessment of the Committee is concerned, learned counsel

has pointed out that the Committee which made recommendations

for unsatisfactory performance never gave an opportunity of

hearing to the petitioner. It has assessed the performance

wrongfully and due to inherent prejudice, as the Members of the

Committee were holding the same rank as that the petitioner, the

Committee constituted of persons who were of same rank but in

different fields, they could not have assessed work of the

petitioner to be unsatisfactory. When the petitioner joined services

on 17/07/2020, he had sent e-mail for allocation of budget on

13/08/2020 and came to know that at mass scale necessary

action was not taken by the earlier appointed staff and then took

several attempts for achieving the targets that were reasonably

achieved. It is submitted that three months' time cannot be

reasonable for assessing the work of a probationer. There was no

show cause issued to the petitioner at any point of time and the

action is unjustified. Learned counsel for petitioner further

submitted that the order impugned was passed on 06/10/2020

while approval for terminating services was sent to the SMD on

06/10/2020 and the SMD thereafter forwarded the matter to the

Additional Chief Secretary, (RD & PR) on 07/10/2020 who has

signed mentioning of an earlier date of 06/10/2020. Thus, learned

counsel for petitioner submitted that the order passed by the

respondents cannot be said to be having received prior approval

from the SMD nor it can be said to have been passed by the

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appointing authority namely; SMD. In the circumstances, learned

counsel for petitioner submitted that the Court must lift the veil

and quash the order impugned which is essentially stigmatic and

has been passed with oblique purposes and motive to terminate

services of the petitioner.

21. The respondents have file replica to the rejoinder and stated

that the petitioner was advised many times to improve his

performance but whenever he was given such advise, he made it

as a harassment and made representations to the Chief Minister

the copies of which have also been placed on record.

22. Heard learned counsel for the parties and perused the

material available on record.

23. The law in relation to probation has been well settled in

Parshotam Lal Dhingra Vs. Union of India: AIR 1958 (SC)

36 wherein five Judges Bench of the Apex Court held as under:-

"28. The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a con'. tractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. The Union of India (supra). Likewise the termination of service by compulsory retirement in terms of a .

specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art.; 311(2), as has also been held by this Court in Shyam Lal v. The State of Uttar Pradesh (I). ,In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under r. 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists,

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under the contract or the rules, to terminate the service the motive, operating on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh v. Union of India (supra), wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 3 1 1 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing.' If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his sub-: stantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a Punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails

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or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or, the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government bad purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression " terminate " or " discharge " is not con, elusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art.311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant."

24. In Union of India & Ors. Vs. R.S. Dhaba: 1969(3) SCC

604, three Judges Bench of the Apex Court held as under:-

"...Further, even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing actor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is whole irrelevant. The test for attracting Article 311(2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee.

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25. In Samsher Singh Vs. State of Punjab & Anr.: (1974) 2

SCC 831, seven Judges Bench of the Apex Court was examining

the issue relating to termination of service of a probationer where

there were allegations against the said probationer and it was

observed that if there are charges and enquiry has been initiated,

the same should reach to logical conclusion.

26. In Anoop Jaiswal Vs. Govt. of India (1984) 2 SCC 369,

the Apex Court held as under:-

12. 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 to 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.

13. 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 Gymansium acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries-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

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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 ill Article 311(2) of the Constitution."

27. In Dipti Prakash Banerjee Vs. Satyendra Nath Bose

National Centre for Basic Sciences: (1999) 3 SCC 60, the

Apex Court held as under:-

"19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. and reference was made to the development of the law from time to time starting from Parshotam Lal Dhingra v. Union of India to the concept of "purpose of enquiry" introduced by Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das and to the seven-Judge Bench decision in Samsher Singh v. State of Punjab and to post-Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the "motive" and what is the "foundation" on which the innocuous order is based.

21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be

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a motive and not the foundation and the simple order of termination would be valid." (emphasis supplied)

28 In State Bank of India & Ors. Vs. Palak Modi & Anr.:

(2013) 3 SCC 607, the Apex Court held as under:-

"22. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (1999) 3 SCC 60, the two Judge Bench considered the appellant's challenge to the termination of his service after adverting to the various communications sent by the Head of the Organization to the appellant and formulated the following points:

"(1) In what circumstances, the termination of a probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive? (2) When can an order of termination of a probationer be said to contain an express stigma? (3) Can the stigma be gathered by referring back to proceedings referred to in the order of termination?

(4) To what relief?"

While dealing with the first point, the Court referred to various earlier judgments and observed:

"19. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah, J. (as he then was) in Madan Gopal v. State of Punjab there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. and reference was made to the development of the law from time to time starting from Parshotam Lal Dhingra v. Union of India to the concept of "purpose of enquiry"

introduced by Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das and to the seven-Judge Bench decision in Samsher Singh v. State of Punjab and to post-Samsher Singh case-law. This Court had occasion to

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make a detailed examination of what is the "motive" and what is the "foundation" on which the innocuous order is based.

21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."

(emphasis supplied) "23. In Chandra Prakash Shahi v. State of U.P. (2000) 5 SCC 152, the Court considered the correctness of the order passed by the High Court which had allowed the writ petition filed by the State and set aside the order passed by U. P. Public Services Tribunal for reinstatement of the appellant. The competent authority had terminated the appellant's service in terms of Rule 3 of the U. P. Temporary Government Servants (Termination of Service) Rules, 1975. It was argued on behalf of the appellant that the order by which his service was terminated, though innocuous, was, in fact, punitive in nature because it was founded on the allegation that he had fought with other colleagues and used filthy and unparliamentary language. In the counter affidavit filed on behalf of the respondents, it was admitted that there was no adverse material against the appellant except the incident in question. The original record produced before the Tribunal revealed that the appellant's service was terminated on account of his alleged involvement in the quarrel between the constables. After noticing various precedents, this Court observed:

"27. The whole case-law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been

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swinging like a pendulum; right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi case that there was a conflict of decisions on the question of an order being a simple termination order or a punitive order, but every time the Court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of "motive" and "foundation" was always kept in view.

28. 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 inquiry is held and it is on the basis of that inquiry 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 inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth 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".

29. "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

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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 inquiry is held behind his back to ascertain the truth of those allegations and a 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 inquiry.

30. Applying these principles to the facts of the present case, it will be noticed that the appellant, who was recruited as a Constable in the 34th Battalion, Pradeshik Armed Constabulary, U.P., had successfully completed his training and had also completed two years of probationary period without any blemish. Even after the completion of the period of probation under para 541 of the U.P. Police Regulations, he continued in service in that capacity. The incident in question, namely, the quarrel was between two other Constables in which the appellant, to begin with, was not involved. When the quarrel was joined by few more Constables on either side, then an inquiry was held to find out the involvement of the Constables in that quarrel in which filthy language was also used. It was through this inquiry that the appellant's involvement was found established. The termination was founded on the report of the preliminary inquiry as the employer had not held the preliminary inquiry to find out whether the appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years ago but was held to find out his involvement. In this situation, particularly when it is admitted by the respondent that the performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct." (emphasis supplied)

24. In Union of India v. Mahaveer C. Singhvi (2010) 8 SCC 220, the three-Judge Bench considered the

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question whether termination of the respondent's service who was serving as I.F.S. probationer by way of discharge in accordance with the terms of employment was punitive. The Court noted that the respondent's service was terminated because he had sought extension to join the Mission at Madrid in Spain because of sudden deterioration in the health condition of his parents and also requested for providing medical facilities and diplomatic passports to them. The Court also noted that the Ministry of External Affairs had taken cognizance of the complaint made by one Mrs. Narinder Kaur Chadha that the respondent had been threatening her entire family and in particular her daughter which was followed by some enquiries conducted into his conduct or character by Joint Secretary, Foreign Service Institute and a memorandum was issued to the respondent alleging his unauthorized absence. The Joint Secretary found that the complaint was wholly unfounded. The Court then referred to the principles laid down in earlier judgments and approved the view taken by the High Court that even though the order of discharge did not contain any stigma, the same was not conclusive and the High Court had rightly termed the same as punitive. Some of the observations made in the judgment are extracted below:

"47. The materials on record reveal that the complaint made by Mrs Narinder Kaur Chadha to the Minister of External Affairs had been referred to the Joint Secretary and the Director (Vigilance) on 8-2- 2002 with a direction that the matter be looked into at the earliest. Although, nothing adverse was found against the respondent, on 19-2- 2002, the Joint Secretary (Vigilance) held further discussions with the Joint Secretary (Admn.) in this regard. What is, however, most damning is that a decision was ultimately taken by the Director, Vigilance Division, on 23-4-2002, to terminate the services of the respondent, stating that the proposal had the approval of the Minister of External Affairs. This case, in our view, is not covered by the decision of this Court in Dipti Prakash Banerjee case."

25. The ratio of the above noted judgments is that a probationer has no right to hold the post and his

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service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice."

29. A look at the impugned order dated 06/10/2020 shows that

the respondents have mentioned in their order as under:-

"DAY-NRLM (NMMU) xzkeh.k fodkl ea=ky;] Hkkjr ljdkj }kjk NRETP ifj;kstuk esa Value Chain & Forward Linkage ds dk;ksZa ij vlarks"k o ukjktxh tkfgj dh x;hA blds vfrfjDr budh dk;Z n{krk gsrq xfBr desVh ds fu"d"kZ vuqlj Hkh Jh dq'kokgk dks buds in ds dk;Z gsrq ;ksX; ugha ik;k x;kA bl lEcU/k esa foHkkxk/;{k }kjk Hkh Jh dq'kokgk dks dk;Z esa lq/kkj ,oa xq.koÙkk ds fy, le; le; ij ekSf[kd psrkouh nh tkrh jgh gSA blds mijkUr Hkh buds }kjk dk;Z ds izfr mnklhu jgs] o budk dk;Z vlarks"ktud jgkA HR Manual ds fu;e 3-5 ,oa 3-6 ds vuqlkj dk;Z xzg.k ds izkjfEHkd 6 ekg dh vof/k dh x.kuk ifjoh{kk vof/k jgsxhA ifjoh{kk vof/k esa dkfeZd dh lsokvksa dh xq.koÙkk ,oa n{krk ds vk/kkj ij fcuk uksfVl ,oa dkj.k crk;s lsok lekfIr dk vf/kdkj LVsV fe'ku Mk;jsDVj dk gksxkA**

30. Thus, it is apparent that the reason for terminating services

is the allegation as mentioned herein above and that a Committee

was constituted which gave its recommendations that the

petitioner is not fit for the post. Thus, the order is stigmatic in

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nature and casts remarks on the performance of the petitioner

which has been made as a foundation to terminate his services

during probation.

31. A look at the report of the Committee, which has

recommended that the petitioner is not fit for the post, shows that

the Committee was constituted of the officers who are of the same

rank. While the petitioner was employed to work as a State

Project Manager, Value Chain & Forward Linkage, the Committee

constituted to review his performance was consisting of State

Project Manager (Live Stock), State Project Manager (M&E) and

State Project Manager (HR) which could not have reviewed the

progress of a State Project Manager of a different aspect namely;

Value Chain and Forward Linkage. The selection of the petitioner

on the post of State Project Manager, Value Chain and Forward

Linkage was by a Committee formed for the purpose and he has

cleared the written examination as well as interview. In the

circumstances, the Committee could not have given an opinion as

mentioned in Annexure-R/3 to the effect that 'SPM (VC&FL)

Position at State level requires intensive knowledge on Value

Chain Development, while reviewing the progress, it is observed

that Sh. Lokesh Kushwah not having capacity to lead his vertical

and affects overall progress of Core activities of NRETP.'

32. The respondents have placed on record the minutes of

meeting to review the implementation of the Value Chain

Development Project sanctioned under the NRETP held on

24/07/2020 and from the perusal of the report, this Court does

not find any averse comments made as against the petitioner.

Further, this Court finds that there were several action points and

key observations noticed which included review of Value Chain

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Project by the State Mission Director with the concerned team.

However, there is no such allegation as against the petitioner of

non-performance. A note-sheet has also been placed on record

wherein the concerned State Project Manager (HR) has given his

opinion not to continue services of the petitioner due to

unsatisfactory performance reported by the Committee of which

he himself was a member. However, it is noticed that on

06/10/2020, the impugned order was passed while file was put up

for approval before the Managing Director on 07/10/2020. Thus,

the order, which mentions Para 3.6 i.e. De-Selection, Termination,

Separation and Exit pointing out that the decision of SMD will be

final on termination of contract of staff is contradictory since the

approval as per the original order-sheet, which has been called

upon by the Court, upon lifting the veil, shows that the SDM has

signed on the note-sheet on 07/10/2020 and the SMD has

forwarded the same to the Additional Chief Secretary for approval

on 07/10/2020 but the signatures of Additional Chief Secretary

are of 06/10/2020. There is another date of 07/10/2020 written

on Para No.98 of the note-sheet.

33. This Court further notices from the order-sheets place before

it that no notice for improvement was ever given to the petitioner

and on a noting given by the State Managing Director of SPM of

not doing work assigned to the petitioner, the process has been

started to take action according to para 3.5 of the HR Manual.

Thus, even before the Committee was formed to review

performance of the petitioner, the State Project Director (HR) had

taken a decision to take action according to Point No.3.5 as is

apparent from Para 82N of the note-sheets.

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34. Thus, this Court is satisfied that the entire action of

conducting review of performance of work of the petitioner was an

afterthought. A decision had already been taken at the level of the

State Project Manager and the SMD on 09/09/2020 as per

Paras/Notes 82 to 84 of the note-sheets to take action under

clause/point No.3.5 of the HR Manual to terminate services of the

probationer. Such an approach is held to be unjustified and

contrary to the precedential law as noticed above. The action has

been taken without giving opportunity of hearing to the petitioner

and being stigmatic, the principles of natural justice have not been

followed.

35. In view of the discussions made above, the instant writ

petition is allowed. The order impugned dated 06/10/2020

terminating services of the petitioner is hereby quashed & set

aside and the respondents are directed to reinstate the petitioner

in service with all consequential benefits. The compliance of this

order be made within three months henceforth.

(SANJEEV PRAKASH SHARMA),J

Raghu

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