PETITIONER:
BABU LAL
Vs.
RESPONDENT:
STATE OF HARYANA AND ORS.
DATE OF JUDGMENT16/01/1991
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1991 AIR 1310 1991 SCR (1) 73
1991 SCC (2) 335 JT 1991 (1) 211
1991 SCALE (1)39
ACT:
Food Supplies Department--Sub-Inspector--Appointed on
ad-hoc temporary basis--Service terminated because of
pendency of criminal proceedings--Later acquitted--Order
terminating services held illegal--Entitled to
regularisation of service.
HEADNOTE:
The appellant was appointed an Sub-Inspector, food &
Supplies by respondent No. 2 on 13.4.1975 on ad-hoc basis
against service-man quota; the post being purely temporary
liable to be terminated without notice and without assigning
any reasons or on arrival of a regular candidate. The
appellant continued in service on that post till November
17, 1980, when his services were terminated. Prior to the
termination of his services he was placed under suspension
on April 15, 1980 in view of the criminal proceedings under
Section 420, IPC pending against him and before the
culmination of criminal proceedings, his services were
terminated by order dated November 17, 1980, as aforesaid.
Criminal case against the appellant was decided on October
21, 1981 wherein he was acquitted of the charge. The
appellant on receiving the order of termination of his
services filed Civil Suit 453 of 1981 in the court of Senior
Sub-Judge, narnaul praying for a declaration that the orders
of suspension as also termination were illegal, wrong,
arbitrary and without jurisdiction and that the appellant
was entitled to reinstatement and regularisation of his
service under the Government notification dated 1.1.1980
issued by the Chief Secretary to the Government of Haryana
authorising regularisation of such ad-hoc employees who held
the Class III posts for a minimum period of two years.
According to the appellant his case was covered by the said
notification and as such he was entitled to all the benefits
of service. The Senior Sub Judge held that as the appellant
was acquitted of the offence, the authorities should have
revoked the suspension order and have paid the pay for the
period for which the appellant remained under suspension and
thus allowed to the appellant all the benefits. An appeal
was taken by the respondents to the Addl. District Judge
who affirmed the order of the trial court holding that no
enquiry was conducted before termination of the service of
the appellant. Against the order of the Addl. District
Judge, the respondents preferred an appeal
74
before the High Court and the High Court allowed the appeal
holding that the appellant was not entitled to be
regularised automatically unless he fulfilled all the
conditions given in the notification. It was also held that
the case of the appellant was considered for regularisation
by the Department but the same was not found suitable; the
services of the appellant were terminated in accordance with
the terms of his appointment. The appellant has filed this
appeal against that order in this court after obtaining
special leave.
Allowing the appeal, this Court,
HELD: The order of suspension made by the respondent
No. 2 is admittedly on the sole ground that criminal
proceeding was pending against the appellant. The order of
termination had been made illegally during the pendency of
the order of suspension and also during the pendency of the
criminal proceeding which ultimately ended with the
acquittal of the appellant. The settle position in law is
that the appellant who was suspended on the ground of
pendency of criminal proceeding against him, on being
acquitted of the criminal charge is entitled to be
reinstated in service. His acquittal from the criminal
charge does not debar the disciplinary authorities to
initiate disciplinary proceedings and after giving an
opportunity of hearing to the appellant pass an order of
termination on the basis of the terms and conditions of the
order of his appointment. [78C-E]
As the appellant whose name was sent through Employment
Exchange and who was appointed and has completed two years
service on 31.12.1979, he is entitled to be considered for
regularisation in the post of Sub-Inspector, Food and
Supplies. [78E]
Smt. Rajinder Kaur v. State of Punjab and Anr., [1986]
4 S.C.C. 141; Anoop Jaiswal v. Government of India, [1984] 2
S.C.R. 453; Hardeep Singh v. State of Haryana and
Ors.,[1987] 4 S.L.R. 576, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1309 of 1986.
From the Judgment and Order dated 8.8.1985 of the
Punjab and Haryana High Court in Regular Second Appeal No.
307 of 1985.
A.B. Rohtagi, Ranbir Singh Yadav and H.M. Singh for the
Appellant.
75
A.G. Prasad and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by
RAY, J. This appeal on special leave is against the
judgment and order passed by the High Court of Punjab &
Haryana in Regular Second Appeal No. 307 of 1985 whereby the
High Court upheld the order of termination of services of
services of the appellant made on November 17, 1980 passed
by the respondent No. 2, the Directer of Food and Supplies
and Deputy Secretary to Government of Haryana, Chandigarh.
The salient facts that gave rise to the instant appeal
are as follows:
The appellant we appointed as Sub-Inspector, Food and
Supplies in the Department of Food and Supplies by the
Respondent No.2 by order dated April 13, 1975 on and hoc
basis against the ex-servicemen quota. As per the service
rules the terms and conditions of the said appointment are
as hereunder:
“(i) The post is purely temporary. Your
appointment is purely on ad hoc basis and shall not
exceed six months. Your services are liable to be
terminated at any time during this period without
any notice and without assigning any reason. Your
services are also liable to be terminated at any
time without notice on arrival of regular
candidates from the Haryana Subordinate Services
Selection Board.”
The appellant had been continuing in the said post of
Sub-Inspector without any break till November 17, 1980 i.e.
the date of termination of his services. The appellant,
however, was served with an order of suspension made by the
Respondent No. 2 on April 15, 1980 in view of the criminal
proceedings pending against the appellant u/s 420 of the
Indian Penal Code during the pendency of which the order of
termination was made on November 17, 1980. The said
criminal proceeding being Criminal Case No. 1413 of 1981 was
decided on October 21, 1981 wherein he has been acquitted of
the said charge. The Additional Chief Judicial Magistrate,
Narnual had found that:-
“….. Babu Ram accused was not present at the spot
and he had no role to play in the distribution of
the cement. The Appellant could not point out even
a single factor from the file by which the
participation of this accused can be said to
76
have been proved by the prosecution. As such,
accused, Babu Ram cannot be held guilty of the
offence charged and he is acquitted of the same.”
The plaintiff-appellant immediately on receiving the order
of termination after giving the requisite notice brought an
action being Civil Suit No.453 of 1981 in the court of
Senior Sub Judge, Narnual praying for a declaration to the
effect that the order of suspension dated 15.4.1980 and the
order of termination dated 17.11.1980 passed by the
respondent No.2 were illegal, wrong, arbitrary and without
jurisdiction and the appellant is entitled to reinstatement
with effect from the date of his suspension and so further
entitled to be regularised and to all the benefits of the
service. It had been stated in the pleadings of the
appellant that a notification dated 1st January, 1980 issued
by the Chief Secretary to the Government of Haryana
addressed to all the Head of the Departments vide memo No.
G.S.R./Const./ Art. 309/80 stating that such ad hoc
employees who hold the class III posts for a minimum period
of two years on 31.12.1979 are to be regularised if they
fulfill the following conditions:
(a) Only such ad hoc employees as have completed a
minimum of two years service on 31.12.1979 should
be made regular. However, break in service
rendered on ad hoc basis upto a period of one month
may be condoned but break accruing because the
concerned employee had left service of his own
volition or where the ad hoc appointment was
against a post/vacancy for which no regular
recruitment was required/intended to be made, i.e.
leave arrangements or filling up of other short-
time vacancies, may not be condoned.
(b) Only such ad hoc employees as have been
recruited through the Employment Exchange should be
made regular.
(c) The work and conduct of the ad hoc employees
proposed to be regularised should be of an overall
good category.
The plaintiff-appellant pleaded that he having put in the
minimum period of two years of service on 31.12.1979 became
entitled to have his service regularised in view of the said
Notification. He further pleaded that the alleged order of
termination was in fact an order of dismissal and so it
amounts to punishment and the same being penal in nature is
null and void because it contravened the provisions of
Constitution of India. The Senior Sub Judge, Narnaul after
hearing the
77
parties held that as the petitioner-appellant was acquitted
of the said offence, the authorities should have revoked the
suspension order and have paid the pay for the period for
which the appellant remained under suspension. The Court
further held that the appellant will be entitled to all the
benefits of his service.
Against this judgement and decree, an appeal was filed
being C.A. No. 129 of 1983 in the Court of Addl. District
Judge, Narnaul by the State. The Addl. District Judge by
his judgement dated 18.10.1984 affirmed the judgement and
decree of the learned Sub-Judge holding that no enquiry was
conducted before termination of the service of the
appellant. The Addl. District Judge also held that:
“……the plaintiff had completed two years of
service and according to executive instructions his
services were bound to be regularised. Reasonable
opportunity to defend was not given to the
plaintiff before termination of his services.
Order of termination of services was merely a
camouflage for an order of dismissal for
misconduct. He was still under suspension when he
was terminated. All these facts lead only to one
conclusion that the impugned order of termination
of the services of the plaintiff is bad in law
….”
Against this judgement and order R.S.A. No. 307 of 1985
was filed by the said respondents in the High Court of
Punjab and Haryana at Chandigarh. The High Curt allowed the
appeal on setting aside the judgement and decree of the
courts below holding that the appellant was not entitled to
be regularised automatically unless he fulfilled all the
conditions given in the Notification. It was further held
that when the case of the appellant came up for
regularisation the Department found that the appellant’s
work and conduct was not of the required standard so as to
justify his regularisation and consequently his services
were not regularised. It was further held that since the
appellant was ad hoc employee therefore, the Department
instead of waiting for the result of the criminal
proceedings thought it fit under the circumstances to
dispense with the services of the appellant in accordance
with the terms of his appointment.
This judgement is under challenge in this appeal. The
pivotal question that poses itself for consideration before
this Court is firstly whether during the period of
suspension in view of the criminal proceeding which
ultimately ended with the acquittal, an order of termi-
78
nation can be made against the appellant by the respondent
No.2 terminating his ad hoc services without reinstating him
as he was acquitted from the charge u/s 420 I.P.C. and
secondly whether the impugned order of termination from his
service can be made straight away without reinstating him in
the service after he earned acquittal in the criminal case
and thereafter without initiating any proceeding for
termination of his service as the impugned order of
termination was of penal nature having civil consequences.
It has also to be considered in this connection that the
respondent No.2 has also not considered the case of the
appellant for regularisation of his services even though he
had completed two years of service as on 31.12.1979
fulfilling all the requisite terms and conditions mentioned
in the said Notification. The order of suspension made by
the respondent No.2 is admittedly on the sole ground that
criminal proceeding was pending against the appellant. The
order of termination had been made illegally during the
pendency of the order of suspension and also during the
pendency of the criminal proceeding which ultimately ended
with the acquittal of the appellant. It is the settled
position in law that the appellant who was suspended on the
ground of pendency of criminal proceeding against him, on
being acquitted of the criminal charge is entitled to be
reinstated in service. His acquittal from the criminal
charge does not debar the disciplinary authorities to
initiate disciplinary proceedings and after giving an
opportunity of hearing to the appellant pass an order of
termination on the basis of the terms and conditions of the
order of his appointment. Furthermore as the appellant
whose name was sent through Employment Exchange and who was
appointed and has completed two years service on 31.12.1979
is entitled to be considered for regularisation in the post
Sub-Inspector, Food and Supplies. The High Court had
observed that:
“….. In these circumstances, when his case came
up for regularisation, the Department found that
the plaintiff’s work and conduct was not of the
required standard so as to justify his
regularisation and consequently his services were
not regularised.”
This finding of the High Court is totally baseless in as
much as the counsel for the said respondent could not
produce any order or documentary evidence to show that the
respondents considered the case of the appellant for the
purpose of regularisation in accordance with the
Notification dated 1st January, 1980. As such the finding
of the High Court is wholly bad and illegal. The other
finding of the High Court that the acquittal of the
appellant by the criminal court was of no consequence as his
services were terminated before the order of acquittal was
made because the appellant was no more in service is also
79
against the well settled legal position. It has also to be
borne in mind that under the Notification dated 1st January,
1980 issued by the Government, the appellant having
fulfilled the condition of two years of service is entitled
to be considered by the Government for regularisation of his
service in accordance with the said executive instructions
issued by the Government. As we have said herein before
that there is nothing on record to show that the Government
has ever considered the case of the appellant for
regularisation of his service in the light of the
instructions contained in the said Notification dated 1st
January, 1980, the impugned order of termination of service
made by the Government is illegal and arbitrary and so it is
liable to be quashed and set aside.
Moreover, from the sequences of facts of his case the
inference is irresistible that the impugned order of
termination of the service of the appellant is of penal
nature having civil consequence. It is well settled by
several decisions of this Court that though the order is
innocuous on the face of it still then the Court that though
the order is innocuous on the face of it still then the
Court if necessary, for the ends of fair play and justice
can lift the veil and find out the real nature of the order
and if it is found that the impugned order is penal in
nature even though it is couched with the order of
termination in accordance with the terms and conditions of
the order of appointment, the order will be set aside.
Reference may be made in this connection to the decision of
this Court in Smt. Rajinder Kaur v. State of Punjab and
Another, [1989] 4 SCC 181 in which one of us is a party. It
has been held that:
“The impugned order of discharge though stated to
be made in accordance with the provisions of Rule
12.21 of the Punjab Police Rules, 1934, was really
made on the basis of the misconduct as found on
enquiry into the allegation behind her back.
Though couched in innocuous terms, the order was
merely a camouflage for an order of dismissal from
service on the ground of misconduct. This order
had been made without serving the appellant any
charge-sheet, without asking for any explanation
from her and without giving any opportunity to show
cause against the purported order f dismissal from
service and without giving any opportunity to show
cause against the purported order of dismissal from
service and without giving any opportunity to
cross-examine the witness examined. The order was
thus, made in total contravention of the provisions
of Article 311(2) and was therefore, liable to be
quashed and set aside.”
This case relied on the observations made by this Court
in the case of Anoop Jaiswal v. Government of India, [1984]
2 S.C.R. 453
80
wherein it has been observed that:
“….Where the form of 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”.
Similar observation has been made by this Court in the
case of Hardeep Singh v. State of Haryana and Ors., [1987] 4
S.L.R. 576. It has been held in this case as under:
“In the instant case, it is clear and evident from
the averments made in paragraph 3, sub-para (i) to
(iii) and paragraph (v) of the counter-affidavit
that the impugned order of removal/dismissal from
service was in substance and in effect an order made
by way of punishment after considering the service
conduct of petitioner. There is no doubt the
impugned order casts a stigma on the service career
of the petitioner and the order being made by way
of punishment, the petitioner is entitled to the
protection afforded by the provisions of Article
311(2) of the Constitution as well as by the
provisions of Rule 16.24 (Ix)(b) of the Punjab
Police Rules, 1984….”
In the premises aforesaid, we are constrained to
hold that the judgement rendered by the High Court is wholly
illegal and unwarranted and as such we quash and set aside
the same and affirm the judgement of the courts below. We
direct that the appellant be reinstated in the service
immediately and be paid all his emoluments i.e. pay and
allowances from the date of the order of his suspension i.e.
15.4.1980 till the date of reinstatement into service minus
the suspension allowance that had been received by the
appellant during the period of his suspension (if any). The
respondents are at liberty to consider the case of the
appellant for regularisation in the light of the norms laid
down in the executive instructions issued on 1st
January,1980 by Notification No. G.S.R./Const./Art. 309/80.
The appeal is allowed. There will be no order as to costs
in the facts the circumstances of the case.
Y.Lal Appeal allowed.
81