Champal Singh Rana vs Union Of India & Others
2021 Latest Caselaw 5002 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                   Writ Petition (S/S) No. 2105 of 2019

Champal Singh Rana                                             .......Petitioner
                                          Vs.

Union of India & others

                                                              .....Respondents

Ms. Anju Mehta, Advocate, holding brief of Mr. Dharmendra Barthwal, Advocate, for the petitioner.

Ms. Monika Pant, Advocate, for the respondent No.1. Mr. Rakesh Thapliyal, Assistant Solicitor General, assisted by Mr. Lalit Sharma, CGSC, for the Union of India/respondent Nos.2 and 3.

Hon'ble Sharad Kumar Sharma, J (Oral)

The petitioner to the present writ petition contends that in pursuance to the advertisement which was issued by the respondents on 05.03.2014, for the purposes of the purposes of recruitment of Group A and B employees on contractual basis. The petitioner had extended his candidature to be considered for being appointed with the respondents, and consequently after participating in the process of selection which included the written test too, as well as the interview, the petitioner was declared selected, and as his name appeared in the select list, which was published on 30.01.2015. As a consequence to the inclusion of the name of the petitioner in the select list, the petitioner had submitted his joining on the post of Office Assistant (NS) on 02nd February, 2015.

2. The grievance of the petitioner as agitated in the present writ petition is as against the impugned order dated 16.08.2018, by virtue of which the petitioner's services has been terminated, and simultaneously a prayer for issuance of a writ of mandamus has been sought by the petitioner for the purposes of extension of benefit of payment of salary in the light of the principles laid down by the judgment of the Hon'ble Apex Court in the case of "State of Punjab Vs. Jagjit Singh" reported in 2017 SCC (1) page 148.

3. The pleadings were exchanged and the matter was heard earlier by this Court on the number of occasions. Learned counsel for the respondent was called upon to answer the query of this Court, that if the impugned order is taken into consideration, in fact the employer could have exercised the powers of termination, subject to the condition, that it is the simplicitor termination of services of an employee, but once an order of "termination of services attaches a stigma", which is the case at hand. In that eventuality, the opportunity of hearing was required to be provided to the petitioner, because the stigmatic observations made in the impugned order of termination, would always creating an impediment in the petitioner's future appointment in any Private or Government Organization. In that eventuality, and even as per the settled law, whenever the employer opts for to pass an order of termination of the services, on the basis of an assessment of conduct of an employee based on service records, the employer is supposed to provide an opportunity of hearing before taking an action impugned against the petitioner.

4. On this short premise itself, the termination order as per the opinion of this Court cannot be sustainable, though it has been argued by the learned counsel for the respondent, that since the very inception of the petitioner into the services was on the basis of the advertisement which was on a contractual basis, no substantive right of the petitioner was created, nor the petitioner would be adversely affected by the impugned order, because it's always the right of an employer to dispense the services of a contractual employee, even without assigning any reasons.

5. This principle as argued by the learned counsel for the respondent could have been accepted only in a condition, when the order of dispensing the services of a temporary or contractual employee, is a simplictor dispensation or discontinuance of contractual relationship between the employer and the employee, but that is not a situation and case too which is prevalent here.

6. The impugned order observes that the services of the petitioner has been dispensed with from the services on the ground, that an allegation was leveled against him, that he was illegally planning to hamper the normal working of the Institution, including the aspect of patients care, and hence it was observed, that due to this breach of code of conduct, which according to the petitioner himself, invited disciplinary action against him if it was at all required, but still they proceeded to pass the impugned order, whereby the services of the petitioner has been terminated is without even compliance of the earlier observations which were made in the impugned order.

7. On that short premise itself that since the impugned order happens to be stigmatic in nature and was passed without providing an opportunity of hearing, and particularly, when the respondent themselves admitted the fact that it was a misconduct of the employee i.e. petitioner, herein, which called for discontinuance of his services, this Court is of the view that in view of the judgment rendered recently by the Hon'ble Apex Court on 28.01.2020 in Civil Appeal No.777 of 2020, "Dr. Vijayakumaran C.P.V Vs. Central University of Kerala & others", where it had observed that a simplicitor termination or an ex-facie stigmatic termination order could not be passed except without providing an opportunity of hearing to the person concerned, whose future is likely to be affected because of the observations which are adversely made in the stigmatic order of termination. A reference may be had to paragraph Nos.5, 6, 7 and 8, of the said judgment of the Hon'ble Apex Court, which is extracted hereunder:-

"5. From the perusal of the termination order dated 30.11.2017 issued by the Vice Chancellor, it is evident that the same was issued in the backdrop of the Internal Complaints Committee report. The opening part of the order itself mentions that on scrutiny of report by the Internal Complaints Committee, other documents and academic performance, the Executive Council in its meeting held on 30.11.2017,

decided to take the decision to terminate the services of the appellant forthwith.

6. The appellant had assailed the impugned termination order dated 30.11.2017 being exfacie stigmatic. The learned single Judge of the High Court of Kerala at Ernakulam (for short, 'the High Court') vide judgment and order dated 30.1.2018 in Writ Petition (Civil) No. 39013/2017, however, construed the same as one of termination simplicitor. The Division Bench of the High Court vide impugned judgment and order dated 20.2.2018 in Writ Appeal No. 444/2018 has affirmed that view taken by the learned single Judge and rejected the appeal preferred by the appellant.

7. Accordingly, the moot question before us is: whether the order dated 30.11.2017 can be regarded as order of termination simplictor or is exfacie stigmatic? Going by the tenor of the stated order, it is incomprehensible as to how the same can be construed as termination simplictor when it has made the report of the inquiry conducted by the Internal Complaints Committee and the decision of the Executive Council dated 30.11.2017 as the foundation, in addition to the ground of academic performance. Had it been a case of mere unsatisfactory academic performance, the situation would have been entirely different. The stated order not only adverts to the report of the Internal Complaints Committee, but also the decision taken by the Executive Council, which in turn highlights the fact that the appellant had to face an inquiry before the Committee in reference to the allegations of serious misconduct committed by him. Notably, the appellant has been subjected to a formal inquiry before the Committee constituted under statutory regulations to inquire into the allegations bordering on moral turpitude or misconduct committed by the appellant and that inquiry culminated in a finding of guilt against the appellant with recommendation of the Executive Council to proceed against the appellant as per the service rules. In such a situation, it is

unfathomable to construe the order as order of termination simplicitor.

8. It is well-established position that the material which amounts to stigma need not be contained in the order of termination of the probationer, but might be contained in "any document referred to in the termination order". Such reference may inevitably affect the future prospects of the incumbent and if so, the order must be construed as exfacie stigmatic order of termination. A threeJudge Bench of this Court in Indra Pal Gupta vs. Managing Committee, Model Inter College, Thora1 had occasion to deal with somewhat similar situation. In that case, the order of termination referred to the decision of the Managing Committee and subsequent approval by the competent authority as the basis for termination. The resolution of the Managing Committee in turn referred to a report of the Manager which indicated serious issues and that was made the basis for the decision by the Committee to terminate probation of the employee concerned. Relying on the aforementioned decision, the Court in Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors.2, observed as follows:

"32. The next question is whether the reference in the impugned order to the three earlier letters amounts to a stigma if those three letters contained anything in the nature of a stigma even though the order of termination itself did not contain anything offensive.

33. Learned counsel for the appellant relies upon Indra Pal Gupta v. Managing Committee, Model Inter College (1984) 3 SCC 384 decided by a three-

Judge Bench of this Court. In that case, the order of termination of probation, which is extracted in the judgment, reads as follows: (SCC p. 386, para 1)

"With reference to the above (viz. termination of service as Principal), I have to mention that in

of the Managing Committee dated April 27, 1969 (copy enclosed) and subsequent approval by the D.I.O.S., Bulandshahr, you are hereby informed that your 1 (1984) 3 SCC 384 2 (1999) 3 SCC 60 service as Principal of this Institution is terminated...."

Now the copy of the resolution of the Managing Committee appended to the order of termination stated that the report of the Manager was read at the meeting and that the facts contained in the report of the Manager being serious and not in the interests of the institution, that therefore the Committee unanimously resolved to terminate his probation. The report of the Manager was not extracted in the enclosure to the termination order but was extracted in the counter filed in the case and read as follows: (SCC p. 388, para 3)

"It will be evident from the above that the Principal's stay will not be in the interest of the Institution. It is also evident that the seriousness of the lapses is enough to justify dismissal but no educational institution should take all this botheration. As such my suggestion is that our purpose will be served by termination of his services.

Why, then, we should enter into any botheration. For this, i.e., for termination of his period of probation, too, the approval of the D.I.O.S. will be necessary. Accordingly, any delay in this matter may also be harmful to our interests.

Accordingly, I suggest that instead of taking any serious action, the period of probation of Shri Inder Pal Gupta be terminated without waiting for the period to end."

It was held by Venkataramiah, J. (as he then was) (p. 392) that the letter of termination referred to the resolution of the Managing Committee, that the said resolution was made part of the order as an enclosure and that the resolution in its turn referred to the report of the Manager. A copy of the Manager's report had been filed along with the counter and the said report was the "foundation". Venkataramiah, J. (as he then was) held that the Manager's report contained words amounting to a stigma. The learned Judge said: "This is a clear case where the order of termination issued is merely a camouflage for an order imposing a penalty of termination of service on the ground of misconduct ...", that these findings in the Manager's report amounted to a "mark of disgrace or infamy" and that the appellant there was visited with evil consequences. The officer was reinstated with all the benefits of back wages and continuity of service.

34. It will be seen from the above case that the resolution of the Committee was part of the termination order being an enclosure to it. But the offensive part was not really contained in the order of termination nor in the resolution which was an enclosure to the order of termination but in the Manager's report which was referred to in the enclosure. The said report of the Manager was placed before the Court along with the counter. The allegations in the Manager's report were the basis for the termination and the said report contained words amounting to a stigma. The termination order was, as stated above, set aside.

35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma."

8. Wherein, based on the earlier principles which had been laid down by the Hon'ble Apex Court, and particularly, considering the impact of the judgment as reported in 2002 (1) SCC 520, where the reference of paragraph No.21, of the said judgment of the "Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences & Another", has been considered and it had been held that the stigmatic termination order could not be passed except without providing an opportunity of hearing, and accordingly the conclusion was drawn by the three Judges Bench of the Hon'ble Apex Court as recorded in paragraph Nos.11 and 12 of the judgment, whereby the termination order was set aside, and the appellant, therein, was directed to be reinstated into the services, and at the same time, the University was left entitled to undertake an action, but only after having resort to the process contemplated under the Disciplinary Rules in accordance with law.

9. The identical view had been taken by the different other High Courts and in one of the judgments as rendered by the Gujarat High Court on 26.11.2020 in the matters of "Yogeshbhai Rupabhai Vatukiya Vs. State of Gujarat", a similar view was taken as it finds reference in paragraph No.8, of the judgment based on an observation made by the judgment dated 13.08.2019, rendered by the coordinate Bench, and considering the observations made by the Apex Court decision, the same principles has been enunciated, therein, in paragraph No.8, of the said judgment, which is extracted hereunder:-

"8. The position of law in relation to effecting termination of service of an employee, even if on the fixed pay, by passing a stigmatic order without following principles of natural justice came to be discussed by the Coordinate Bench in the decision rendered in Special Civil Application No.10439 of 2019 dated 13.8.2019, wherein the Coordinate Bench observed as under:

"5.1 The law on the aspect was discussed with reference to the decisions of the Apex Court. In judging whether termination is simpliciter or punitive, a trite distinction is made between motive of the order and foundation of the order. In Chandra Prakash Shahi v.

State of U.P. [(2000) 5 SCC 152], the Supreme Court

explained the concept of motive and foundation in respect of probationer as under:

"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? It if was the factor of general unsuitability of the employee for the post held by him, the act 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 to be true in the preliminary inquiry." (para 29) (emphasis supplied)

5.2 The above statement of law that if the order is punitive and stigmatic in nature, even if the employee concerned is a temporary employee or holding the post as on probation, his dismissal or removal would warrant a regular inquiry and full-fledged compliance of natural justice, emanaged from the early decision of the Apex Court in Anoop Jaiswal v. Government of India [(1984) 2 SCC 369]. In that case, the Apex Court held that it is permissible for the Court to go behind the formal order of discharge so as to find out the real cause of action. In that case, the appellant was an IPS Officer, undergoing training as a probationer, arrived late by about 22 minutes at the place, even though prior intimation was sent about the time on which, the candidates were required to reach the venue. The incident of delayed reporting was considered to be one by the authorities calling for an inquiry and an explanation was sought for from the petitioner and all other probationer-trainees who had arrived late. On the basis of explanation, the Director recommended the Government for discharge of the appellant from service. The Government passed order of discharge on the basis of recommendation of the Director with whom, the only ground prevailing was that the appellant did not show any sign of repentance. The High Court dismissed the Writ Petition. However, the Supreme Court allowed the Appeal and held that the order was punitive. The appellant was directed to be reinstated with full benefits.

5.3 The principle stated was that even the form of the order may be merely a camouflage for order of dismissal actually passed on the basis of misconduct. In such circumstances, the Apex Court stated, it is always

open to the court before which the order is challenged, to go beyond the form and ascertain the true character of the order. The Supreme Court held, "If .... .... .... 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 where the aggrieved officer is not afforded a reasonable opportunity to defend himself as provided in Article 311(2). It is wrong to assume that it is only when there is a full scale departmental enquiry any termination made thereafter will attract the operation of Article 311(2)." (Paras 11 and 13)

5.4 It is the foundation of the order which really matters. The Supreme Court in Anoop Jaiswal (supra) stated that if from the record and the attendant circumstances of the present case it becomes clear that the real foundation for the order of discharge of the appellant-probationer was the alleged act of misconduct, the impugned order would amount to termination of service by way of punishment and in absence of any enquiry held in accordance with Article 311(2), it was liable to be struck down. The Supreme Court thereafter directed reinstatement of the appellant of the said case in service with the same rank of seniority he was entitled to before the impugned order passed as if it had not been passed at all.

5.5 The Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha [(1980) 2 SCC 593] stated and observed thus, "53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the

consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used." (Emphasis supplied) (Para 9)

5.5.1 Having delineated the aforesaid principles, the Apex Court held that the order in the case before it could not be treated as a simple order of retrenchment and that it was an order passed by way of punishment. It was held that such order of dismissal which was passed without holding a regular departmental inquiry cannot be allowed to be sustained.

5.6 In Ratnesh Kumar Choudhary (supra) also the Supreme Court considered its own various decisions on the aspect and after referring to the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21] observed that the proposition of law operating two ways. In certain cases of temporary servants and probationers if the inquiry undertaken about the very conduct forms the motive of termination order, then the termination could not be said to be punitive merely because principles of natural justice have not been followed. In such circumstances, without becoming stigmatic, the employer can exercise its right to terminate service of the employee concerned. In the other line of decisions, the Supreme Court has ruled that if the facts revealed in the inquiry or from the narration of the order itself that the inquiry into the conduct was not the motive but it was a foundation and the allegation of misconduct considered against employee becomes foundation of termination of service of temporary servant or probationer, such action would become punitive and it would make the order legally unsound. The Supreme Court in Ratnesh Kumar Choudhary (supra) thereafter referred to the above quoted observations from Gujarat Still Tubes Limited (supra) terming them as instructive.

5.7 In Imranbhai Anwarbhai Majothi (supra), it was thereafter observed and held,

"6. When the impugned order is assessed, evaluated and considered in light of the aforesaid principles, it is even not necessary to adopt the process of lifting of veil. It is not necessary to remove the facade even, for, the order in these very recitals could be manifestly said to be based on allegations of misconduct. The plain reading of order castes stigma. It is a stigmatic action of termination of petitioner's service. Such an action could not have been taken, eventhough the petitioner was a fixed period employee, without giving the petitioner a full-fledge opportunity to defend and thus by holding a regular departmental inquiry. The employer is not allowed to hire and fire employee. Even if the temporary, ad-hoc or probationer employee is driven out of service on the ground of misconduct without holding inquiry and stigma is caste on his career by the punitive order, it is also a facet of behaving with hire and fire attitude by the employer."

5.8 Also stand to support the petitioner another decision of this Court in Special Civil Application No.1095 of 2016 decided on 21st September, 2016 in which, it was observed in paragraph 8 of the judgment that the order ex facie indicated that the basis of the order of termination was criminal complaint lodged against the petitioner. As the order was passed without compliance of natural justice, it was required indulgence of the Court, stated the Court, after discussing the position of law in that regard."

10. Ultimately, the conclusion and the analysis, it has been arrived at in paragraph No.11, of the said judgment, which has observed, that if a misconduct of demanding bribe on the basis of which an FIR has been registered and that has been taken as to be the basis of terminating the services of the petitioner, it was held to be stigmatic. Hence, the compliance of principle of natural justice was held to be mandatory. Paragraph No.11, is extracted hereunder:-

11. Thus, it is clear from the bare reading of the contents made in the termination order that the foundation of the impugned order was alleged misconduct of demanding bribe, for which F.I.R. was registered. Thus, the order in question could be treated as stigmatic. It is a matter of fact that the termination order was

passed without compliance of principles of natural justice and without holding any departmental enquiry and therefore, the position of law as reproduced herein above would operate to grant relief to the petitioner.

11. There is a similar view, which has been taken by the coordinate Bench Jharkhand High Court, at Ranchi in the matters of "Pintu Kumar Yadav Vs. Director General of Police, Central Reserve Police Force & others", as delivered on 26.11.2020, wherein a coordinate Bench of the Jharkhand High Court in its paragraph No.5, had almost laid down the same principles extracting its ratio based upon the judgment rendered by the Hon'ble Apex Court in the matters of Jagdish Mittal Vs. Union of India, and the reference has been made to paragraph No.64, of the Hon'ble Apex Court judgment, based on which, the stigmatic termination order without providing an opportunity of hearing has been held to be bad. Paragraph No.5, of the said judgment, as well as the consequential conclusion drawn thereto, in paragraph Nos.10 and 11, are extracted hereunder:-

"10. From the facts stated herein above; especially the stand taken by the respondents in their counter affidavit as well as the office order dated 09.08.2014, which was passed in partial modification of the order dated 06.08.2014, it is evident that the termination order may appear simpliciter but 17 the attending circumstances show that misconduct was the real basis of the termination. As such, this Court holds that the impugned orders (Annexure-4 & 5), being stigmatic and punitive in nature, has been passed without following the principles of natural justice which is against the settled principles of law.

11. In view of the aforesaid discussions and judicial pronouncements, the impugned orders as contained in order dated 06.08.2014 issued vide No. P VIII-6/2014 EC-2 and Order dated 09.08.2014 issued vide No.P.VIII-6/2014-EC-2, are hereby, quashed and set-aside for want of reasonable opportunity of being heard given to the petitioner.

However, the respondent authorities will be at liberty to proceed in accordance with law, if so advised."

12. In view of the aforesaid principles, and also considering the impact of the judgment reported in AIR 1989 Allahabad Full Bench, Page 154, "Ramendra Nath & etc Vs. Mandi Samiti, Sultanpur, & another", as well as 1984 (2) SCC 369, "Anoop Jaiswal Vs. Government of India & another", if an employer enjoys the power to terminate the services of the temporary employee, that termination cannot be made arbitrarily, and particularly, when it is foundationed on an allegations of the misconduct, then principles of natural justice has had to be mandatorily followed, which is lacking in the instant case.

13. In that view of the matter, the writ petition is allowed. The impugned order dated 16.08.2018, is hereby quashed. Petitioner is directed to be reinstated into the services. Simultaneously, it is left open for the respondents, that if at all it is required for them to take an action on the basis of the alleged misconduct, it would always be open for the respondents to take an action in accordance with law, and particularly, based on the principles, which has already been discussed above.

14. Subject to the above observations, the writ petition is allowed.

(Sharad Kumar Sharma, J.) 09.12.2021 NR/