{"id":186785,"date":"2008-01-22T00:00:00","date_gmt":"2008-01-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nehru-yuva-kendra-sangathan-vs-mehbub-alam-laskar-on-22-january-2008"},"modified":"2017-03-15T07:31:32","modified_gmt":"2017-03-15T02:01:32","slug":"nehru-yuva-kendra-sangathan-vs-mehbub-alam-laskar-on-22-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nehru-yuva-kendra-sangathan-vs-mehbub-alam-laskar-on-22-january-2008","title":{"rendered":"Nehru Yuva Kendra Sangathan vs Mehbub Alam Laskar on 22 January, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nehru Yuva Kendra Sangathan vs Mehbub Alam Laskar on 22 January, 2008<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Harjit Singh Bedi<\/div>\n
           CASE NO.:\nAppeal (civil)  1123 of 2006\n\nPETITIONER:\nNehru Yuva Kendra Sangathan\n\nRESPONDENT:\nMehbub Alam Laskar\n\nDATE OF JUDGMENT: 22\/01\/2008\n\nBENCH:\nS.B. Sinha & Harjit Singh Bedi\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nWITH<\/p>\n
CIVIL APPEAL NO. 1125 OF 2006<\/p>\n
S.B. SINHA,  J :\n<\/p>\n
1.\tThese two appeals involving common questions of fact and law were
\ntaken up for hearing together and are being disposed of by this common
\njudgment.\n<\/p>\n
     Appellant is an autonomous body operating under the Department of
\nYouth Affairs and Sports, Ministry of Human Resource Development,
\nGovernment of India.   It is a State within the meaning of Article 12 of the
\nConstitution of India.\n<\/p>\n
     Respondent herein was appointed as a Youth Co-ordinator in terms of
\nan offer of appointment dated 28.9.1994; paragraph 5 whereof reads as
\nunder:-\n<\/p>\n
5.  You will be on probation for a period of one
\nyear from date of joining.  Your probation period
\nmay be extended if considered necessary by the
\nSangathan. During the probation period, you will
\nhave the option of resigning, if you so desire,
\nwithout any notice.  Likewise, the Sangathan will be
\nat liberty to terminate your services without any
\nnotice and without assigning any reasons
\nwhatsoever, during the probation period.   Upon
\nsuccessful completion of this period you will be
\nadvised in writing of the fresh terms and conditions
\nof your employment.<\/p>\n
2.\tHe allegedly withdrew some amount from the Government Fund (to
\nwhich he was entitled to) and deposited it in his personal bank account.  An
\nenquiry in that behalf was conducted behind his back and on the basis of the
\nresult thereof, his probation was terminated, stating:
\nServices of Sh. Mehboob Alam Laskar S\/o Late
\nLatif Ahmed Laskar working as Youth
\nCoordinator in NYK-North Tripura, are terminated
\nforthwith.\n<\/p>\n
He shall handover the charge to Sh. Topan Nag,
\nYouth Coordinator, NYK-Karimganj immediately
\nafter receipt of this order.  Sh. Nag will hold the
\nadditional charge of the Kendra till further orders.\n<\/p>\n
\t\t\t\t\tSd\/- S.Y. Quraiahi
\n\t\t\t\t\tDirector General\t<\/p>\n
3.\tHe filed a representation before the appropriate authority for
\nreconsideration of his case.   He also filed another representation\/appeal
\nseeking review of the order of termination dated 24.5.1995 on or about
\n20.2.1999.\n<\/p>\n
     As the said representation was not being responded to within a
\nreasonable time by the respondents, he filed a writ petition before the High
\nCourt which was marked as Writ Petition (C) No. 3136 of 1999.   The said
\nWrit Petition was disposed of by the High Court directing the appellant to
\nconsider his representation keeping in mind the decision of the High Court
\nin the case of Ajay Gupta being Civil Rule No. 5582 of 1995 wherein an
\norder of reinstatement had been passed.\n<\/p>\n
4.\tThe said representation of the appellant was rejected by an Order
\ndated 13.10.1999 stating that the case of Ajay Gupta which was the subject
\nmatter of above-mentioned Civil Rule, was not similar, stating;
\n7.  In view of the above explained facts, it is
\nsubmitted that your case cannot be treated as
\nsimilar with that of Shri Ajay Kumar Gupta, his
\nservices were terminated during the probation
\nperiod after conducting preliminary inquiry.
\nLater, he refuted the allegations against him and
\nappealed to the disciplinary authority.   Though
\nhis termination was well within the rules of the
\nSangathan and also as per the conditions
\nmentioned in the appointment letter, it was
\ndecided to give him a chance as per principles of
\nnatural justice.   However, on further inquiry, he
\nwas found to be guilty of misappropriation and
\nthe termination of his services was found
\njustified.\n<\/p>\n
On the other hand, your services were terminated
\nduring the probation period on the basis of
\ncertain prima facie allegations of financial
\nirregularities.   The same charges were also
\nadmitted by you in your letter dated 14th June,
\n1995.   Therefore, no other inquiry was
\nconsidered necessary by the competent authority
\nsince the charges were already proved\/admitted
\nby you.<\/p>\n
5.\tThe legality\/validity of the said Order was questioned by the
\nrespondent by filing another writ petition before the High Court which was
\nregistered as Writ Petition (Civil) No. 480 of 2001.   By reason of a
\njudgment and order dated 9.4.2003, the said order was set aside and the writ
\npetition was allowed, holding :\n<\/p>\n
The law is well settled that if a probationer does
\nnot satisfy the requirements of the employer, his
\nservices can be dispensed with by an order of
\ndischarge; but if in the order of discharge there is
\nany imputation of misconduct, which may have a
\nbearing on the future employment of the
\nprobationer an enquiry in the matter should be
\nconducted and the probationer ought to be given
\nan opportunity to defend himself.  Though in the
\ninitial order of termination, there is no imputation
\nor any misconduct against the petitioner, in the
\nsubsequent order, it has been elaborately recited
\nthat the foundation of the order of discharge is on
\naccount of financial irregularities committed by
\nthe petitioner.   The subsequent order which is
\nnow challenged, has the effect of casting a stigma
\non the petitioner and, therefore, not much
\npersuasion is required for this Court to hold that
\nthe authority should not have passed the order
\nwithout affording a reasonable opportunity to the
\nwrit petitioner to defend himself of the charges
\nleveled.   Admittedly no enquiry was held.  That
\nbeing the position, this Court has no Option but
\nallow the writ petitioner and to interfere with the
\norder dated 18-10-99.  The writ petitioner shall
\nnow be reinstated in service and the Authority
\nwill be at liberty to initiate a fresh proceeding
\nagainst him in accordance with law, if is so
\nadvised.  The question of the entitlement of the
\nwrit petitioner to any back wages will be
\nconsidered by the authority in accordance such
\nnorms as may be in force.<\/p>\n
6.\tThe Order dated 24.5.1995 was, indisputably based on the findings
\nthat an enquiry had been made  behind the back of the respondent.  Had the
\nresult of the preliminary enquiry been taken into consideration only for the
\npurpose of judging the suitability of the respondent to continue in service,
\nthe same could not have been said to be a foundation for terminating the
\nprobation.\n<\/p>\n
 \tThere exists a distinction between motive and foundation.  If
\nmisconduct is the foundation of such an order, the same would be bad in law
\neven if it appears to an innocuous one.\n<\/p>\n
7.\tAs the said Order was not complied with, a contempt petition was also
\nfiled wherein by an Order dated 11.5.2004, the Contemnor was directed to
\ncomply with the Orders of the Court without delay.  A Writ Appeal was also
\npreferred against the Order dated 9.4.2003 which by reason of the impugned
\njudgment dated 11.05.2004 has been dismissed.\n<\/p>\n
 \tThese appeals are directed against the aforementioned Orders dated
\n25.3.2004 and 11.5.2004.\n<\/p>\n
8.\tMr. Rana Ranjit Singh, learned counsel appearing on behalf of the
\npetitioner submitted that a subsequent order which was passed on the
\nrepresentation of the respondent himself could not have been taken into
\nconsideration by the High Court for the purpose of arriving at a finding that
\nthe initial order of termination of his probation was not valid.   It was
\nfurthermore urged that, in any event, the representation having been filed by
\nthe respondent in the year 1999, the writ petition ought not to have been
\nentertained.\n<\/p>\n
9. \tMr. P.K. Goswami, learned senior counsel appearing on behalf of the
\nrespondent, on the other hand, submitted that the learned Single Judge, as
\nalso the Division Bench of the High Court rightly opined that the foundation
\nof the order being a misconduct, the Order dated 24.5.1995 was wholly
\nunsustainable.  It was pointed out that this Court by an order dated 14.6.2004
\nstayed the operation of the order subject to the condition that until further
\norders, the appellant would pay to the respondent, every month the last
\ndrawn salary but the said order was vacated by an order dated 13.2.2006 and
\npursuant thereto the respondent had been taken in service and in that view of
\nthe matter, this Court, may not exercise its discretionary jurisdiction under
\nArticle 136 of the Constitution of India.\n<\/p>\n
10.\tThe Office Order dated 24.5.1995 was not a speaking one.
\nRespondent was given a notice.   He accepted that he had put the money
\nwithdrawn from the banks in his own accounts.  He justified his action in his
\nletter dated 14.6.1995.  It, however, does not transpire that any further
\nenquiry was made.  Respondent was found to be guilty of misappropriation
\nof the Appellants fund.   Evidently, the said explanation was not considered.
\nHad an enquiry been held, the said explanation of the respondent might have
\nbeen found to be acceptable by the appellant.\n<\/p>\n
11.\tRespondent was appointed on a temporary basis. He was put on
\nprobation.  Indisputably, the period of probation was required to be
\ncompleted upon rendition of satisfactory service.  Only in the event of
\nunsatisfactory performance by the employee, the termination of probation
\nwould have been held to be justified.  It is, however, well-known that when
\nthe foundation for such an order is not the unsatisfactory performance on the
\npart of the employee but overt acts amounting to misconduct, an opportunity
\nof hearing to the concerned employee is imperative.  In other words, if the
\nemployee is found to have committed a misconduct, although an order
\nterminating probation would appear to be innocuous on its face, the same
\nwould be vitiated, if in effect and substance it is found to be stigmatic in
\nnature.\n<\/p>\n
12.\tMere holding of a preliminary enquiry where explanation is called for
\nfrom the employee, if followed by an innocuous order of discharge, may not
\nbe held to be punitive in nature but not when it is founded on a finding of
\nmisconduct.\n<\/p>\n
13.\tIn Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre
\nfor Basic Sciences, Calcutta and Others [(1999) 3 SCC 60], this Court held
\nthat the material which amounts to stigma need not be contained only in the
\ntermination order, but may also be contained in an Order or proceeding
\nreferred to in the order of termination or annexure thereto.\n<\/p>\n
     When the report submitted by a competent authority in a disciplinary
\nproceeding forms the foundation therefor, it would be stigmatic in nature as
\nsuch an order will have civil consequences.\n<\/p>\n
14.\tIt is not necessary for us to consider a large number of decisions
\noperating in the field as this Court recently in Jaswantsingh Pratapsingh
\nJadeja Vs. Rajkot Municipal Corporation & Anr. [(2007) 12 SCALE 115]
\nhas considered the question at some length.\n<\/p>\n
     Reliance, however, is placed by Mr. Rana Ranjit Singh on Abhijit
\nGupta Vs. S.N.B. National Centre, Basic Sciences and Others [(2006) 4 SCC
\n469].   The said decision has been taken into consideration in Jadeja (supra),
\nstating :\n<\/p>\n
If the satisfaction of the employer rested on the
\nunsatisfactory performance on the part of the
\nappellant, the matter might have been different, but
\nin that case, from the impugned order it is evident
\nthat it was not the unsatisfactory nature and
\ncharacter of his performance only which was taken
\ninto consideration but series of his acts as well,
\nmisconduct on his part had also been taken into
\nconsideration therefor. It is one thing to say that he
\nwas found unsuitable for a job but it is another
\nthing to say that he was said to have committed
\nsome misconduct.<\/p>\n
\tAs in the instant case, it now stands admitted that the services of the
\nrespondent had been terminated on a finding of misconduct, the said
\ndecision of this Court in Abhijit Gupta (supra) has no application.\n<\/p>\n
15.\tReliance has also been placed on Jai Singh Vs. Union of India and
\nOthers [(2006) 9 SCC 717].  In that case, the appellants conduct was shown
\nin the records as Unsatisfactory.\n<\/p>\n
\tTherein, this Court noticed that the order of termination was the only
\nmotive and not the foundation therefor stating :
\n9 . The question whether the termination of service
\nis simpliciter or punitive has been examined in several
\ncases e.g. Dhananjay v. Chief Executive Officer, Zilla
\nParishad and Mathew P. Thomas<\/a> v. Kerala State Civil
\nSupply Corpn. Ltd. An order of termination
\nsimpliciter passed during the period of probation has
\nbeen generating undying debate. The recent two
\ndecisions of this Court in Dipti Prakash Banerjee v.
\nSatyendra Nath Bose National Centre<\/a> for Basic
\nSciences and Pavanendra Narayan Verma v. Sanjay
\nGandhi PGI of Medical Sciences<\/a> after survey of most
\nof the earlier decisions touching the question observed
\nas to when an order of termination can be treated as
\nsimpliciter and when it can be treated as punitive and
\nwhen a stigma is said to be attached to an employee
\ndischarged during the period of probation. The
\nlearned counsel on either side referred to and relied on
\nthese decisions either in support of their respective
\ncontentions or to distinguish them for the purpose of
\napplication of the principles stated therein to the facts
\nof the present case. In Dipti Prakash Banerjee after
\nreferring to various decisions it was indicated as to
\nwhen a simple order of termination is to be treated as
\nfounded on the allegations of misconduct and when
\ncomplaints could be only as a motive for passing such
\na simple order of termination. In para 21 of the said
\njudgment a distinction is explained thus: (SCC pp.
\n71-72)
\n 21 . If findings were arrived at in an enquiry as to
\nmisconduct, behind the back of the officer or without
\na regular departmental enquiry, the simple order of
\ntermination is to be treated as  founded  on the
\nallegations and will be bad. But if the enquiry was not
\nheld, no findings were arrived at and the employer
\nwas not inclined to conduct an enquiry but, at the
\nsame time, he did not want to continue the employee
\nagainst whom there were complaints, it would only be
\na case of motive and the order would not be bad.
\nSimilar is the position if the employer did not want to
\nenquire into the truth of the allegations because of
\ndelay in regular departmental proceedings or he was
\ndoubtful about securing adequate evidence. In such a
\ncircumstance, the allegations would be a motive and
\nnot the foundation and the simple order of termination
\nwould be valid.
\nFrom a long line of decisions it appears to us that
\nwhether an order of termination is simpliciter or
\npunitive has ultimately to be decided having due
\nregard to the facts and circumstances of each case.
\nMany a times the distinction between the foundation
\nand motive in relation to an order of termination either
\nis thin or overlapping. It may be difficult either to
\ncategorise or classify strictly orders of termination
\nsimpliciter falling in one or the other category, based
\non misconduct as foundation for passing the order of
\ntermination simpliciter or on motive on the ground of
\nunsuitability to continue in service.
\n \t\t(emphasis in original)<\/p>\n
16.\tThe respondent evidently, was not aware that his services had been
\nterminated on a finding of misconduct or the fact that an enquiry had been
\nconducted by the appellant behind his back.  He pleaded bona fide in his
\naction.   It was not an admission on his part in regard to the imputation of
\nmisconduct.\n<\/p>\n
     He filed representations after representations.  He also moved the
\nHigh Court.  If the appellant had come to know at a later stage, the real
\nobject and purport for which the order dated 24.5.1995 was issued, he could
\nchallenge the same thereafter.  The foundation of the order having been
\ndisclosed by the appellant, at a later stage, the original order must be held to
\nbe vitiated in law.\n<\/p>\n
     In the earlier round of the writ petition, the High Court did not go into
\nthe question as to whether the order dated 24.5.1995 was legal or not.  The
\nHigh Court merely asked the officers of the appellant to consider his
\nrepresentation.   His representation was also to be considered keeping in
\nview the case of Ajay Kumar Gupta.   Ajay Kumar Guptas case was
\ndistinguished by the appellant on the premise that whereas the services of
\nAjay Kumar Gupta were terminated upon holding a disciplinary proceeding
\nthe services of the respondent had been terminated on the basis of an
\nenquiry.\n<\/p>\n
     A State within the meaning of Article 12 of the Constitution of India
\nshould have placed full facts before the High Court.  Only in its anxiety to
\nshow that the case of Ajay Kumar Gupta was different from that of the
\nrespondent, it came out with the truth that the respondent was guilty of a
\nserious misconduct.   We, therefore, do not find any legal infirmity in the
\njudgment of the High Court.\n<\/p>\n
     In any event, the respondent is in service now.  Appellant even in
\nterms of the direction of the learned Single Judge is entitled to initiate a
\ndepartmental proceeding against the respondent.  If such a proceeding is
\ninitiated, explanation offered by the respondent may be accepted or may not
\nbe accepted, but in the facts and circumstances of this case, we are of the
\nopinion that services of the respondent could not have been terminated.\n<\/p>\n
17.\tWe, however, are of the opinion that the respondent should not be
\ngranted the entire backwages.  He will be entitled to back wages only from
\nthe date of the order of the learned Single Judge of the High Court, namely
\n9.4.2003.   In view of the aforementioned directions, we are of the opinion
\nthat no further order is necessary to be passed in the contempt matter.\n<\/p>\n
18.\tCivil Appeal No. 1125 of 2006 is, therefore, allowed and Civil Appeal
\nNo. 1123 of 2006 is dismissed.   No order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nehru Yuva Kendra Sangathan vs Mehbub Alam Laskar on 22 January, 2008 Author: S.B. Sinha Bench: S.B. Sinha, Harjit Singh Bedi CASE NO.: Appeal (civil) 1123 of 2006 PETITIONER: Nehru Yuva Kendra Sangathan RESPONDENT: Mehbub Alam Laskar DATE OF JUDGMENT: 22\/01\/2008 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-186785","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNehru Yuva Kendra Sangathan vs Mehbub Alam Laskar on 22 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nehru-yuva-kendra-sangathan-vs-mehbub-alam-laskar-on-22-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nehru Yuva Kendra Sangathan vs Mehbub Alam Laskar on 22 January, 2008 - 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