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Judgment reserved on 4.1.2010
Judgment delivered on_2.2.2010
Writ Petition No.2232 (S/B) of 1982
Smt. Kanchanpati Devi vs. State of UP and others
Hon. Sunil Ambwani, J.
Hon. Dr. Satish Chandra, J.
Heard learned counsel for the parties.
This writ petition filed in the year 1982 was dismissed for want
of prosecution several times and each time restoration application was
allowed and the writ petition was restored to its original number.
The last order dismissing the writ petition for want of
prosecution on 15.5.1999 was set aside on 4.1.2010.
The petitioner was appointed as Assistant Teacher in a Primary
School run by Zila Parishad, Gonda. The appointment letter dated
4.11.1966 was issued by the Chairman of the Zila Parishad on
27.9.1971. The petitioner's services were terminated by the Chairman
of the Zila Parishad on the ground that her services are no longer
required and shall be terminated on the date of receipt of the notice.
She was made entitled to one month's salary in lieu of the notice. The
Basic Shiksha Parishad was established in the year 1972, and that since
the order of termination of petitioner's services was illegal and the Civil
Court had stayed the operation of the termination order on
23.11.1971, the petitioner alleges that she would be deemed to have
become the employee of the Basic Shiksha Parishad.
An appeal filed by the Zila Parishad against the exparte
injunction order passed by the Civil Court on 23.11.1971 was allowed
by the Civil and Sessions Judge on 30.5.1972, and the order was
vacated. The Civil Suit was transferred to the U.P. Public Services
Tribunal. The transferred Suit was numbered as Claim Petition No. 63
T III/79. It was heard and dismissed by the Tribunal on 6.1.1982,
giving rise to this writ petition.
The Tribunal heard both the parties and after considering the
material on record found that the petitioner was a temporary teacher.
She was not confirmed on the post. The Assistant Inspectress of Girls
Schools, Gonda Smt. Vidya Saxena made an inspection of the school on
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10.9.1970 and reported that the petitioner was not looking after the
school properly. She was entering into quarrel unnecessarily. She
absented herself whenever she liked and that she was not obeying the
orders given to her. The reputation of the school was going down and
the education of the children was suffering. She made several reports
that the petitioner was not working properly and was not suitable to be
retained in service. The Chairman of the Zila Parishad also issued a
warning to her on 28.12.1970. There were complaints by the Village
Pradhan and some other persons about her work and behaviour.
Ultimately on 16.6.1971 the Assistant Inspectress of Girl Schools again
submitted a report to the President, Zila Parishad on which the
petitioner's services were terminated on 27.7.1971.
On the aforesaid materials the Tribunal found that the
petitioner's services have been terminated by an innocuous order
without any stigma. The record demonstrated that her services were
not found suitable and that she was not found fit to be retained in
service. There was no enquiry directed against her nor any charge
sheet was served and thus the order simplicitor terminating her
temporary services did not call for any interference.
The petitioner appeared before the Tribunal and produced her
service book containing the entries of the period from 1.2.1974 to
1.
2.1978 to demonstrate that she is still working. The Tribunal did not
believe her as her services had come to an end on 27.7.71 and that the
interim injunction granted by the Civil Court was vacated by the Civil
and Sessions Judge on 30.5.1972. The Tribunal found that the entries
did not bear the signatures above the rubber stamp and that the
petitioner appeared to have managed to get possession the original
service book and got certain entries made to suit her convenience.
Learned counsel for the petitioner submits that the petitioner
was dismissed on the ground of misconduct after the inspection was
made by the Assistant Inspectress of Girls School. The allegations made
against her should be treated as the foundation for termination of her
services. The petitioner has relied upon the judgments in Radhey
Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and
another 1999 SCC (L&S) 439 and a judgment in Kailash Bharti vs.
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State of UP and others 2005 (23) LCD 436 in submitting that an
order of termination based on misconduct is violative of principles of
natural justice. The petitioner has also relied upon judgments in Paras
Nath Pandey vs. Director, North Central Zone, Cultural Centre,
Allahabad 2009 (1) LBESR 337 (All) and Smt. Tasneem Fatma vs.
State of UP and others 2009 (1) LBESR 726 (All) .
In Smt. Tasneem Fatma (supra) this Court, after considering all
the cases beginning from Parshotam Lal Dhingra v. Union of India,
AIR 1958 SC 36 upto Abhijit gupta v. S.N.B. National Centre, Basic
Sciences & ors, AIR 2006 SC 3471, summed up the principles
discernible to find out whether a simple order of termination/discharge
of a temporary employee or probationer is punitive or not. Para57 of
the judgment is quoted:
“57. From the above discussions, the principles discernible to find
out whether a simple order of termination/discharge of a
temporary employee or probationer is punitive or not, broadly, may
be stated as under:
(a) The termination of services of a temporary servant or
probationer under the Rules of his employment or in exercise of
contractual right is neither per se dismissal nor removal and does
not attract the provisions of Article 311 of the Constitution.
(b) An order of termination simplicitor prima facie is not a
punishment and carries no evil consequences.
(c) Where termination simplicitor is challenged on the ground of
casting stigma or penal in nature, the Court initially would glance
the order itself to find out whether it cast any stigma and can be
said to be penal or not. If it does not, no further enquiry shall be
held unless there is some material to show certain circumstances,
preceding or attending, shadowing the simplicitorness of the said
order.
(d) The Court is not precluded from going beyond the order to
find out as to whether circumstances, preceding or attending,
makes it punitive or not. If the circumstances, preceding or
attending, show only the motive of the employer to terminate, it
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being immaterial would not vitiate the order unless it is found that
order is founded on such act or omission constituting misconduct.
(e) If the order visits the public servant with evil consequences or
casts aspersions against his character or integrity, it would be an
order by way of punishment irrespective of whether the employee
was a mere probationer or temporary.
(f) “Motive” and “foundation” are distinct, though the distinction
is either very thin or overlapping. “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.
“Foundation”, however, is the basis, i.e., the conduct of the
employee. When his acts and omissions treated to be misconduct,
proved or founded, it becomes a case of foundation.
(g) If an order has a punitive flavour in cause or consequence, it
is dismissal, but if it falls short of it, it would not.
(h) Whether the employer is satisfied of the misconduct and the
consequent desirability of termination, it is dismissal even through
the order is worded innocuously. However, where there is mere
suspicion of misconduct and the employer does not wish to bother
about it, and, instead of going into the correctness of guilt, feel like
not to keep the employee and thus terminate him, it is simpliciter
termination and not punitive.
(i) Where the termination simplicitor is preceded by an enquiry,
preliminary or regular, the Court would see the purpose, object of
such enquiry as also the stage at which, the order of termination
has been passed.
(j) Every enquiry preceding the order of termination/discharge,
would not make it punitive. Where an enquiry contemplated in the
Rules before terminating an probationer or temporary employee is
held, it would not make the order punitive.
(k) If the enquiry is to find out whether the employee is fit to be
confirmed or retained in service or to continue, such an enquiry
would not render termination punitive.
(l) Where the employer hold a formal enquiry to find out the
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correctness of the alleged misconduct of the employee and proceed
on the finding thereof, such an order would be punitive, and,
cannot be passed without giving an opportunity to the concerned
employee.
(m) If some formal departmental enquiry commenced but not
pursued to the end. Instead a simple order of termination is passed,
the motive operating in the mind of the authority would be
immaterial and such an order would be nonpunitive.
(n) When an order of termination is assailed on the ground of
mala fide or arbitrariness, while defending the plea of mala fide, if
the authority has referred certain facts justifying the order of
discharge relating to misconduct, negligence or inefficiency of the
employee in the appeal or in the affidavit filed before the Court,
that would not make the order founded on any misconduct.
(o) Sometimes when some reason is mentioned in the order, that
by itself would not make the order punitive or stigmatic. The
following words mentioned in the order have not been held to be
punitive:
(i) “want of application”,
(ii) “lack of potential”,
(iii) “found not dependable”,
(iv) “under suspension”,
(v) “work is unsatisfactory”,
(vi) “unlikely to prove an efficient officer”.
(p) Description of background facts also have not been held to be
stigmatic.
(q) However, the words “undesirable to be retained in
Government service”, have been held stigmatic.
(r) If there is (i) a full scale formal enquiry, (ii) in the
allegations involving moral turpitude or misconduct, (iii) which
culminated in a finding of guilt; where all these three factors are
present, the order of termination would be punitive irrespective of
the form. However, if any one of three factors is missing, then it
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would not be punitive.”
In the present case the order terminating the petitioner’s
temporary services is an order simplicitor, which is not a punishment
and carries no civil consequences. The Tribunal went behind the order
to find out that the motive of the employer was not to punish the
petitioner. The employer considered the reports of the Assistant
Inspectress of Schools and the complaints made against the petitioner.
Instead of directing an enquiry into her conduct the employer thought
it proper to terminate her temporary services. The acts and omissions
committed by the petitioner were not treated to be misconduct proved
against her to become the foundation of the order of termination. The
petitioner was not found suitable and her temporary services were
terminated. The order therefore cannot be said to be punitive inviting
principles of natural justice or attracting Articles 14 and 16 of the
Constitution of India.
We do not find any error in the judgment of the Tribunal. The
writ petition is dismissed.
Dt.2.02.2010
RKP/