R.B. Misra, J.
1. Heard Sri H.P. Misra, learned counsel for the petitioner and Sri S.S. Sharma. learned standing counsel for the State.
2. In this petition prayer has been made to quash the order dated 17.5.1989 (Annexure-III to the writ petition) passed by the respondent No. 2 Chief Medical Officer, Deoria. By consent of parties this writ petition is decided finally in view of second proviso to Rule 2 of Chapter XXII of the Allahabad High Court Rules, 1952.
3. It appears that the petitioner was appointed as Auxiliary Nurse Midwife in 1976 at Primary Health Centre, Sukrauli, district Deoria on 7/16.2.1976 temporarily and in contemplation of a disciplinary inquiry she was suspended on 29.4.1989 and without any inquiry or charge-sheet, her service was terminated by order dated 17.5.1989 by order simplicitor in the light of provision of U. P. Government Servants (Termination of Services) Rules, 1975 (in short called ‘Rules 1975’).
4. According to the counter-affidavit a news was published in the newspaper e.g., ‘Dainik Jagran’ that four children had died, after they were vaccinated at village Vijayee Kaaf within the Primary Health Centre, Sukrauli, on this sensational news, the Chief Medical Officer, Deoria, the respondent No. 2 along with Dy. Chief Medical Officer, Deoria, went to the village and made spot enquiry on 28.4.1989 and found that the petitioner Smt. Shamshad Begum had inoculated D.P.T. and had given vaccination for measles and also administered ‘polio-drops’ simultaneously. The guidelines for administering inoculation and vaccination were found not to have been observed and as a result four children died. F.I.R. was lodged by the guardians of the deceased children on 28.4.1989 at the police station. The respondent No. 2 after spot enquiry found the petitioner guilty of the lapses which resulted in the death of four children and by order dated 29.4.1989 the petitioner was placed, under suspension. A photostat copy of the spot enquiry made by the Chief Medical Officer on 29.4.1989 is enclosed as Annexure-C.A.-l. It was proposed that action be taken under ‘Rules, 1975’, The Chief Medical Officer while making spot enquiry on 26.4.1989 had taken the statement of the petitioner Smt. Shamshad Begum, Prabhu Nath Gupta, Pheku Prasad Gupta, Thakur Prasad and Sukal. The spot enquiry was conducted by Dr. K.C. Pandey, Assistant Director (Malaria), Dr. K.B. Lal, Health and Family Welfare Training Centre on 2.5.1989. An enquiry was also conducted by the Additional Director, Medical Health and Family Welfare. Gorakhpur, Joint Director Universal Immunisation Programme, U.P., Lucknow, On the basis of the aforesaid enquiry, the Additional Director, Medical Health and Family Welfare, issued direction on 4.5.1989 to take appropriate action against the petitioner and other concerned authorities.
5. According to the petitioner to her knowledge no preliminary inquiry was conducted. The petitioner neither was issued charge-sheet nor was afforded opportunity of hearing before termination and though by innocuous simplicitor order, the petitioner’s service was terminated.
6. For the alleged lapses on the part of the petitioner, F.I.R. was lodged and in inquiry made behind the back of the petitioner, he was not associated. The petitioner was not terminated by adopting proper procedure. According to the petitioner, it has indicated in the order Annexure R.A.-1, the petitioner has been given benefit of doubt and has been exonerated for the alleged charge of Section 304A, I.P.C. in Case No. 554 of 1992 from the Court of Judicial Magistrate, Kushinagar.
7. In rejoinder-affidavit endeavourance has been made to controvert the contents of the counter-affidavit and to reiterate the averments made in the writ petition. According to the petitioner the impugned termination in question is preceded by a spot inquiry and preliminary inquiry where evidences were gathered behind the back of petitioner in order to arrive at a finding of misconduct of definite nature, and on the basis of such reports e.g., report dated 29.4.1989 of Chief Medical Officer, report dated 2.5.1989 Assistant Director (Malaria) as well as report of Additional Director, Medical Health and Family Welfare, Gorakhpur, the present termination order was issued in utter violation of principles of natural justice inasmuch as the purpose of inquiries were to find out the truth of the allegations with a view to punish the petitioner and not for gathering evidences and materials for a future regular departmental inquiry and the termination is treated to be based upon or founded upon the misconduct tantamounting to punishment and according to the petitioner the alleged misconduct was not motive but foundation of termination as such is liable to be set aside in view of Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Anr., 1998 (4) AWC 201 (SC) : (1999) 2 SCC 21.
8. It was observed in State of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla, 1991 (1) AWC 651 (SC) : (1991) 1 SCC 691, as below :
“(1) The principle of ‘last come first go’ is applicable to a case where on account of reduction of work or shrinkage of cadre retrenchment takes place and the services of employees are terminated on account of retrenchment. In the event of retrenchment the principle of ‘last come first go’ is applicable under which senior in service is retained while the junior’s services are terminated. But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with terms and conditions of his service. If out of several temporary employees working in a department a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service. Such a procedure does not violate principle of equality enshrined under Articles 14 and 16. If a junior employee is hard working, efficient and honest his services could not be terminated with a view to accommodate the senior employee even though he is found unsuitable for the service if this principle is not accepted there would be discrimination and the order of termination of a junior employee would be unreasonable and discriminatory. On the admitted set of facts the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in services. The view taken by the High Court is not sustainable in law.” [Para 5]
“(2) A temporary Government servant has no right to hold the post. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service of the relevant rules or it may decide to take punitive action against the temporary Government servant. If the services of a temporary Government servant is terminated in accordance with the terms and conditions of service, it will not visit him with any evil consequences. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated no exception can be taken to such an order of termination. Before terminating the services of a temporary servant or reverting the person officiating in a higher post to his substantive post, the Government may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating Government servant. Such an inquiry does not change the nature of the order of the termination or reversion. If, however, it is decided to take punitive action the competent authority may hold a formal inquiry by framing charges and giving opportunity to the Government servant in accordance with Article 311(2) which is applicable to temporary Governments also.”
[Paras 7, 6 and 10]
9. The Supreme Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd, and Anr., 1998 (4) AWC 201 (SC) : 1999 (2) SCC 21, has observed as below :
“The termination of the services of a temporary servant or one on probation on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that assessment is not done with the object of finding out any misconduct on the part of the officer. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of preliminary enquiry is to find out if there is prima facie evidence on material to initiate a regular departmental enquiry. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started a charge-memo issued, reply obtained, and an inquiry officer is appointed. If at that point of time the enquiry is dropped and a simple notice of termination is passed the same will not be punitive because the inquiry officer has not recorded evidence nor given any findings on the charges. The departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. The employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive. [Para 33]
But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee’s conduct but are cases where the employer has virtually accepted the definitive and clear findings of the inquiry officer, which are all arrived at behind the back of the employee-even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases.” [Para 34]
10. In view of the assertions made in the counter-affidavit it appears that the incident which occurred was the foundation and the petitioner was punished by way in the garb of termination order and if the allegations were proved then proper inquiry was to be conducted and the petitioner might have been ousted in accordance with law, but for the alleged offences misconduct and lapses on the part of the petitioner inquiry was conducted behind the back of the petitioner which became foundation and basis for termination of petitioner punishing the petitioner. The order simplicitor and the decision of Radhey Shyam Gupta (supra) squarely covers and protects the right of the petitioner. Therefore, the order impugned is set aside. However, the petitioner to be reinstated in service and the earlier past service shall be treated for the seniority purpose and 25% of back wages from the date of termination shall be paid to the petitioner within four months from the date of production of a certified copy of this order.
11. With the above observations the writ petition is allowed.