ORDER
S.R. Nayak, J.
1. The facts of the case in these four writ petitions are substantially the same. Even the questions of law raised in these writ petitions are also identical. Hence all these four writ petitions were clubbed and heard together. The learned Counsel appearing for the parties advanced common arguments.
2. The facts of the case are in a short compass. All the petitioners in these four writ petitions were given employment in the respondent Collieries as Badli Fillers on compassionate ground, they being dependants of the family members who were employees in the services of the respondent Collieries and either retired from service on medical grounds or who died while in service. The appointment order dated 31-5-1995 appointing the first petitioner in W.P. No. 19047 of 1994 as Badli Filler is extracted here below:
“The Singareni Collieries Company Limited.
No. SRP(P)/P(PM)/31D/94/1334 Date: 31-5-94. OFFICE ORDER: Under the provisions of N.C.W.A.-II/III/IV of the Company, the following Male Dependant of Ex-employee of Yellandu Area is hereby empanelled as Badli filler with effect from the date of reporting for duty at the Mine. Badli has been defined in Company's Standing Orders as follows: "A 'Badli' or 'Substitute' is one who is appointed in the post of permanent employee or probationer who is temporarily absent." Name Age as assessed MVTC No. & S/Shri by Medical Officer Date Dodda Venkata Narasaiah, 25 years as on No. 55, Younger brother of Shri 7-12-1993 Dt.15-3-1994 Late D. Janardhan Reddy, Ex. Badli Worker, JK.5 Inc. He will be given employment in the absentee vacancies of permanent employment on every day and the employment whenever provided shall not entitle him for any claim for permanency. He will be paid wages on piece rate basis on the days he is engaged on coal filling against the absentee vacancies and the days he is not shown any employment, he will not be entitled for the wages. He will have to abide by all the Rules and Regulations concerning to his work, conduct etc., as applicable to him." In the event of any adverse reports as regards to his attendance, work and conduct, Company reserves the right to remove his name from such enrolment.
His appointment in the Company will be subject to verification of antecedents and if adverse reports are received from the police authorities on verification of antecedents, appointment order in the Company is liable to be cancelled. He is posted to work at SRP.2 Incline, SRP (P) Area and directed to report for duty to Colliery Manager, SRP.2 Incline, SRP (P) Area for work and placement.
Sd.-
General Manager,
Srirampur (Projects) Area.”
3. Similar appointment orders with the same terms and conditions were issued to the other petitioner in W.P. No. 19047/94 and the petitioners in the remaining writ petitions. One of the terms of appointment provides that it would be subject to verification of antecedents and if adverse reports are received from the police authorities on verification of antecedents, cancelled.
4. It appears that after the petitioners were appointed as Badli Fillers, the management of the respondent – Singareni Collieries Company limited referred the matter to the concerned police for verification of the antecedents of the petitioners and seeking reports. The concerned police submitted adverse reports relating to the antecedents of the petitioners. The Management of the Singareni Collieries Company Limited on the basis of the adverse reports submitted by the concerned police issued the impugned orders cancelling the empanelment of the petitioners as Badli Fillers. The office order dated 7-10-1994 issued by the second respondent-General Manager cancelling empanelment of the first petitioner in W.P. No. 19047/94 as Badli Filler reads thus:
Ref: No SRP (P)/P(PM)/31D/94/2567 Dated: 7-10-1994. OFFICE ORDER: Shri Kuturu Rajaiah, Badli Filler, RK-NT, SRP(P) Area "Through Col. Mgr.SRP(P)" , RK-NT.
You were empanelled as Badli Filler vide office order No. SRP(P) /P(PM) / 31D/93/2637, dated 28-10-1993 and posted to work at RK NT, SRP (P) Area. As per the terms and conditions stipulated in the office order your appointment in the company is subject to verification of antecedents and if adverse reports are received from the Police Authorities on verification of antecedents, appointment order in the Company is liable to be cancelled.
Since adverse remarks are received against you from Superintendent of Police, Khammam, your empanelment as Badli Filler is hereby cancelled with effect from 11-10-1994.
Sd._________
General Manager,
Srirampur (Projects) Area,”
Similar office orders were also issued in respect of the other petitioners cancelling empanelment of their names as Badli Fillers. The petitioners in these four writ petitions have called in question the legality and the validity of these orders. On behalf of the respondents counters are filed defending the impugned actions.
5. Sri A.K. Jayaprakash Rao the learned Counsel appearing for the petitioners in all these writ petitions firstly contended that the respondents have cancelled the empanelment of the petitioners as Badli Fillers as a measure of punishment and therefore such orders could be issued only after holding a departmental enquiry as required under the provisions of the Certified Standing Orders of the company and in the present cases, admittedly, no enquiry was held. Therefore, Sri Jayaprakash Rao maintained that the impugned orders are in utter violation of principles of natural justice, fair play of India. Secondly, Sri Jayaprakash Rao, the learned Counsel for the petitioners contended that the impugned orders are issued by the Management solely on the basis of the reports submitted by the police reporting that the petitioners are not the dependants of the Ex-employees and the police have no authority or competence to decide the ‘private status’ of the petitioners i.e., whether the petitioners are the dependants of the ex-employees or not. Therefore, the respondent-Management should not have acted and issued the impugned orders solely on the basis of the adverse reports submitted by the police without anything more and without holding enquiries to satisfy itself that the petitioners are actually not the dependants of the ex-employees. Lastly, Sri Jayaprakash Rao contended that the impugned orders cast stigma on the petitioners and consequently the petitioners are rendered disabled to seek employment under the State or the instrumentalities of the State thereby affecting the valuable rights of the petitioners to be considered for public employment as enshrined under Articles 14 and 16(1) of the Constitution.
6. Defending the impugned actions of the respondent-Management Sri Ramesh, the learned Counsel for the respondents would submit that the impugned orders are in perfect conformity with the terms of contract of employment and the provisions of the Certified Standing Orders. He would high light that under the terms of the contract of employment the services of the petitioners were liable to be terminated if the antecedents of the petitioners were to be adverse. He would also submit that the impugned orders do not cast any stigma on the petitioners. In nutshell, Sri Ramesh, the learned Counsel for the respondent-Management would submit that holding a departmental enquiry or complying with the principles of natural justice before the impugned orders were issued, is not the requirement of law.
7. The questions which arise for consideration and decision are:
(i) Whether the impugned orders cast any stigma on the petitioners and whether any adverse legal consequences affecting the interests of the petitioners flow from the impugned orders and if so, whether the respondent-Management acted legally in terminating the services of the petitioners without holding any enquiry and without any opportunity to the petitioners to have their say in the matter;
(ii) Whether the police are competent to determine the ‘private status’ of the petitioners i.e., whether the petitioners are the dependants of the ex-employees or not by ex parte investigation.
8. The impugned orders specifically declare that the empanelment of the petitioners as Badli fillers was cancelled on account of the adverse remarks received from the police. When the allegation for terminating the services is mentioned in the termination order itself, then it shows that the termination was intended to be as a punishment for the allegation. The mention of allegation in the termination order also prejudicially affects the employee concerned in seeking employment elsewhere. When the services of the petitioners were terminated on account of adverse remarks received from the Police I do not think that any public employment agency would offer employment to the petitioners. It is needless to state that every citizen has a right to be considered for public employment as enshrined under Article 16(1) of the Constitution of India provided he possesses prescribed requisite qualifications. By issuing the impugned orders on the basis of adverse report received from the police, the said right of the petitioners under Article 16(1) of the Constitution is impaired. The petitioners have got a perfect right to contend that if the respondent-employer proposes to exercise its power under the contract to terminate their employment simpliciter it should not couple this act with observation on the alleged misconduct of the petitioners. The employer may not give them a certificate or a testimonial of unblemish conduct but it cannot virtually make averments against the conduct of the employees when dispensing with their services under the contract. If it does so, that may amount to wrongful dismissal or a breach of contract and be actionable under common law. The counter filed on behalf of the respondents discloses that the adverse remarks received from the police are to the effect that the petitioners are not the dependants of the ex-employees, and that was the basis for terminating the services of the petitioners by the impugned orders. If the allegations levelled against the petitioners are true they would badly reflect on the personality of the petitioners and they are liable to be subjected to disciplinary proceedings by the employer. Therefore, in my considered opinion the impugned termination orders do cast stigma on the petitioners and adverse legal consequences affecting the rights of the petitioners to seek employment either under the State or its instrumentalities or elsewhere. Therefore, in the facts and circumstances of the case it should be held that the termination of the services of the petitioners is as a measure of punishment and not in bona fide exercise of the power reserved to the employer under the terms of contract of employment or under the provisions of the Certified Standing Orders. In these cases, admittedly no enquiry was held against the petitioners or any opportunity was given to any of the petitioners to have their say on the adverse report sent by the police. Therefore it is a clear case of utter violation of principles of natural justice and norms of fair play and reasonableness.
9. Sri Ramesh, the learned Counsel for the respondents, however, contended that even where the allegation for terminating the services is mentioned in the termination order itself, it is not necessary to hold departmental enquiry or to give an opportunity to the employee to have his say on the allegation. In support of this proposition Sri Ramesh placed reliance on the following three decisions:
(i) The Judgment of a single Judge of this Court dated 13-4-1994 rendered in W.P. No. 14621/93 in the case of Bonukuntla Sreenu v. The General Manager, Singareni Collieries Company Limited, Kothagudem, Khammam District;
(ii) A decision of the learned single Judge of the Kerala High Court in Sadanandan v. The State of Kerala, .
(iii) Another decision of a learned single Judge of the Kerala High Court in the case of K.M. Sugatha Prasad and Anr. v. State of Kerala, .
10. None of these decisions are of any help to the respondent-Management. In the case of Banukuntla Sreenu v. The General Manager, Singareni Collieries Company Limited, Kothagudem, Khammam District (judgment dt. 13-4-1994 rendered in W.P. No. 14621/93) the services of the petitioner therein were terminated by the respondent-company on receipt of adverse report from the police regarding the antecedents of the petitioner. In that case the Court on facts found that there were no allegations levelled against the police who sent the adverse report. The Court also found that the respondent company had referred the cases of 40 persons to the police for verification and report regarding their antecedents and the police sent adverse report only against the writ petitioner in that case. Therefore the Court opined that in the absence of any allegation against the petitioner and also having regard to the fact that the adverse report was submitted only in respect of one person out of 40 persons, did not interfere with the termination order. It is also relevant to note that in that case the Court’s stigma on the petitioner therein and whether the right of the petitioner to seek employment either under the State or its instrumentalities or elsewhere was affected or impaired. Those arguments were not advanced before the Court in that case and the Court also did not consider those questions. In this case serious allegations were levelled against the police for sending adverse reports against the petitioners. It is averred in the writ petitions that the police personnel demanded bribe from the petitioners to send the correct favourable reports and since the petitioners failed to accede to their illegal demand, the police sent adverse reports to the respondent-management. The petitioners have also complained to the office bearers of the Trade Union to which they belonged. The General Secretary of the Singareni Collieries Workers Union submitted a representation on 15-8-1994 to the Superintendent of Police, Khammam bringing to his notice the illegal activities of the concerned police and requesting him to initiate action. The Union also made a representation to the Director General of Police, Hyderabad on 17-8-1994. Even the Chairman and the Managing Director of the Singareni Collieries Company Limited was addressed by Mr. Komaraiah, General Secretary of the Singareni Collieries Workers Union. In these circumstances the respondent-Management should have satisfied itself that the adverse reports sent by the police are genuine by further conducting an enquiry or an independent investigation. Admittedly that has not been done in the present cases. Therefore that decision is distinguishable from the present cases on facts. The facts of the case decided by the Kerala High Court in the case of K.M. Sugatha Prasad and Anr. v. State of Kerala (2 supra) are also distinguishable from the facts of the present cases. In that case the adverse information received from and in possession of the employer was not disclosed in the termination order. If the adverse remarks or allegations are not disclosed in the termination order, it will not come in the way of employee seeking alternative employment either under the State or its instrumentalities or elsewhere. In other words termination simpliciter in accordance with terms of contract employment or the provisions of the Certified Standing Orders will in no way affect or impair the right of the employee to seek alternative employment. But, in these cases as already pointed out supra the disclosure of adverse remarks in the termination order itself affects the right of the petitioners guaranteed to them under Article 16(1) of the Constitution and thereby it will come in the way of the petitioners seeking employment elsewhere. Therefore this decision of the Kerala High Courtisal so not helpful to the respondent-Management.
11. The Kerala High Court further in the case of KM. Sugatha Prasad and Anr. v. State of Kerala (2 supra) after referring to the decision in Sadanandan v. The State of Kerala (1 supra) affirmed the view taken in the case of Sadanandan v. The State of Kerala (1 supra). Of course, in this case para 5 of the Judgment indicates that the adverse reports received regarding the character and antecedents of the concerned teachers were disclosed in the termination order. However, in that case also the Court was not called upon to decide the question whether disclosure of adverse reports in the termination order itself tantamounts to casting a stigma on the employee and whether such an order would come in the way of the employee seeking employment either under the State or elsewhere and whether the right guaranteed to every citizen under Article 16(1) of the Constitution was impaired or affected. Therefore this decision of the Kerala High Court is and cannot be an authority on the issue which arises for consideration in the present cases.
12. Sri Ramesh also placed reliance on the two decisions of the Supreme Court –
(i)State of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla, and
(ii) in the case of Commissioner, Food and Civil Supplies, Lucknow, U.P. and Anr. v. Prakash Chandra Saxena and Anr., .
to contend that in terminating the services of an employee in terms of contract of service or sevice rules of Certified standing Orders as the case may be, it is not necessary to comply with the principles of natural justice. There cannot be any dispute over this proposition. But the aforementioned two decisions of the Supreme Court are in no way helpful for the respondent-Management to contend that even in a case where they proposed to disclose the adverse materials or information in the termination order itself, even then it need not comply with the principles of natural justice. It is true that in the absence of express words throwing stigma on the employee, the Court could not look into the background resulting in the passing of such order in order to discover whether some kind of stigma could be inferred. Merely because certain circumstances constituted the background or supplied the motive or operated as an inducing factor for termination of services of an employee will not amount to punishment. When an employee is weeded out and discharged from service on account of he being undesirable or unsuitable for work, it was only a motive and does not invalidate the order of discharge when the discharge order does not contain the factors which motivated the action but is based upon the terms of contract. It is not permissible for the Court to attribute to the termination order a basis different from what it really discloses nor is it necessary to conduct an investigation into the alleged hidden motives,
13. Adverting to the next question raised by Sri Jayaprakash Rao that the police are incompetent to give a declaration as to whether the petitioners are the dependants of the ex-employees or not, I find considerable force in the statement. The meaning of the word ‘antecedents’ in the context is nothing but ‘conduct or history’. What was referred to the police by the respondent-Management was to verify the antecedents of the petitioners. In the first place this authorisation to verify the antecedents of the petitioners does not include the authority to determine the ‘private status’ of the petitioners i.e., whether the petitioners are actually the dependants of the ex-employees or not. The said question of ‘private status of the petitioner is a question of title. The police, in may considered opinion, are illequipped as well as incompetent to record finding on such a complicated and serious question. Further, the police have recorded their finding adverse to the petitioners and sent the same to the respondent-Management without affording any opportunity to the concerned petitioners to have their say in the matter. Therefore the action of the police in sending such adverse reports without hearing the petitioners is totally arbitrary and unfair. The further action of the respondent-Management on action on such ex parte unilateral and extra-judicial materials is also equally bad in law and liable to be condemned as arbitrary, unreasonable and violative of principles of natural justice and fair play as well as violative of Articles 14, 16(1) and 21 of the Constitution of India. In view of my finding that the impugned orders are issued by the respondent-Management as a measure of punishment, holding of a departmental or domestic enquiry against the petitioners was a must before the impugned orders were issued. Admittedly that has not been done in the present cases.
14. The allegation levelled against the petitioners is defined to be a ‘misconduct’ under Clause 25.10 and 25.10(a) of the Certified Standing Orders of the respondent-company. Therefore, the respondent-Managementis obliged to hold a departmental enquiry against the petitioners if they want to terminate the services of the petitioners on the ground of misconduct. The affected should be informed is the Constitutional creed flowing from the postulates of civil rights of the petitioners but also affect the right of the petitioners to be considered for employment under the State or its instrumentalities or elsewhere as guaranteed to them under Article 16(1) of the Constitution of India. Such a deprivation could not have been brought about by the respondent-management without compliance with the principles of natural justice and without holding a domestic enquiry as provided under the Certified Standing Orders of the company. Therefore the impugned actions of the respondent-management smack of arbitrariness, unreasonableness and violative of principles of natural justice and mandates or Articles 14, 16 and 21 of the Constitution of India.
15. In the result and for the foregoing reasons the writ petitions are deserved to be allowed. Accordingly, all the writ petitions are allowed and the impugned office orders issued by the respondents cancelling the empanelment of the petitioners as Badli Fillers are hereby quashed. It is made clear that the petitioners are entitled to all the benefits and advantages pecuniary and otherwise which flow from the quashing of the impugned office orders. In the facts and circumstances of the case the parties are directed to bear their own costs.
16. This order shall not come in the way of the respondent-Management initiating necessary disciplinary proceedings against the petitioners in accordance with law and in the light of this decision if it is of the opinion that the adverse reports sent by the Police are genuine and correct.