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CASE NO.: Appeal (civil)  5452-5453 of 2004

PETITIONER: Kendriya Vidyalaya Sangathan                              

RESPONDENT: Arunkumar Madhavrao Sinddhaye & Anr.              

DATE OF JUDGMENT: 31/10/2006

BENCH: G.P. MATHUR & A.K. MATHUR

JUDGMENT: J U D G M E N T

G. P. MATHUR, J.

       These appeals, by special leave, have been preferred against the  judgment and decree dated 5.3.2002 of Bombay High Court by which  the second appeal preferred by the respondent Arunkumar Madhavrao  Sinddhaye was allowed and the suit filed by him was decreed setting  aside the order of termination of services dated 21.3.1975 and  directing his reinstatement with full back wages.  The appellant  preferred a review petition before the High Court which was  dismissed on 3.11.2003 and the said order is also under challenge.  2.      The respondent Arunkumar Madhavrao Sinddhaye was  appointed on a temporary post of Physical Education Teacher in the  Kendriya Vidyalaya Sangathan on 25.6.1974.   His services were  terminated vide order dated 21.3.1975 in accordance with conditions  of appointment mentioned in the appointment order.   He filed a suit  for a declaration that the order of termination of his services dated  21.3.1975 was illegal, inoperative and not binding upon him.  The  main plea taken in the suit instituted by the respondent was that his  services had been terminated by way of punishment as an enquiry had  been held behind his back in which some witnesses were examined  and after completion of the enquiry, in which he had not been given  any opportunity to defend himself, a report was submitted against him  and on the basis of the said report his services were terminated.  The  suit was defended by the appellant on several grounds and the  principal ground being that the services of the petitioner had not been  terminated by way of punishment, but in terms of the appointment  order.  The learned Civil Judge (Jr. Division) Pune, dismissed the suit  vide judgment and decree dated 28.2.1986 and the appeal preferred by  the respondent against the said decree was also dismissed by VII  Additional District Judge, Pune, by the judgment and decree dated  28.4.1987.  The second appeal preferred by the respondent was,  however, allowed by the High Court and the suit was decreed as  mentioned earlier.   

3.      Before adverting to the submissions made by learned counsel  for the parties, it will be convenient to set out the essential facts of the  case and the findings recorded by the High Court.  

4.      The relevant part of the appointment order issued in favour of  the respondent by Kendriya Vidyalaya Sangathan, Bombay Regional  Office on 25.6.1974 reads as under:- "No.F.6-5/74/KVS(BR)            Date : 25th June, 1974 MEMORANDUM SUBJECT : Offer of appointment to the post of Physical  Education Teacher.

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    With reference to his/her application for the above  post, the undersigned offers to Shri Arunkumar  Madhavrao Siddhaye, a temporary post of Physical  Education Tr. in the Kendriya Vidyalaya Sangathan on  an initially pay of ................................. 2.      ................................................... 3.      The services of the appointee are terminable by  one month’s notice on either side without any reasons  being assigned therefor. The appointing authority,  however, reserves the right of terminating the services  before the expiry of the stipulated period of notice by  making payment to the appointee of a sum equivalent to  the pay and allowances for the period of notice or the  unexpired portion thereof.  ................................. 4.      If he/she accepts the offer on the terms and  conditions stipulated, he/she may please send his/her  acceptance to the undersigned within 7 days from the  receipt of this letter in the form attached and report for  duty to the Principal of the above mentioned Kendriya  Vidyalaya ......................................................."

The Assistant Commissioner, Kendriya Vidyalaya Sangathan,  Bombay Region issued an order on 21.3.1975 terminating the services  of the respondent with effect from 30.4.1975 and the said order reads  as under : "Shri Arunkumar Madhavrao Siddhaye, PHT, KV, Dehu  Road is hereby informed that his services are no longer  required by the Sangathan with effect from 30.4.75  (A.N.).  His services will therefore stand terminated with  effect from the above date as per terms and conditions of  appointment mentioned in the offer of appointment No.  F.4-5/74/KVS(BR) dated 25.6.74 issued to Shri Siddhaye  and the same duly accepted by him vide his letter dated  1.7.74.  This may be treated as One Months’ Notice.                                                 Sd/-                                         ( MADAN GOPAL )                                        Assistant Commissioner"

5.      The principal ground taken by the respondent in the suit  instituted by him was that an enquiry had been conducted behind his  back in which a finding had been recorded against him and on the  basis of the said enquiry his services had been terminated and thus it  was not a simple order of termination of services but had been passed  by way of punishment, in complete violation of principles of natural  justice.   It is, therefore, necessary to refer to the relevant facts in this  regard.  One Capt. V.K. Balasubramanyam sent a letter to the Station  Commander, Dehu Road on 21.2.1975 stating that his son Master  V.K. Srinivasalu, who was studying in IXth Class had developed  serious chest pain on 18th February, 1975 and in spite of his having  informed that he was not well, the PT teacher made him to run six  rounds (approx. 4 kms) around the school.   As the child was not well,  he was examined in the Military Hospital on 20th February and the  doctor prescribed him some medicines and gave a written advice that  he should not do P.T. or other exercises for a week.   This was shown  to the class teacher who gave a note in writing to the PT teacher  exempting the child from PT and other exercises.   In spite of doctor’s  advice and written note of the class teacher, the PT teacher forced the  boy to do PT and being unable to do so, he was beaten.   It was further  mentioned in the letter that this was not the only occasion when  corporal punishment had been meted out to the students by the  respondent as earlier also this fact had been brought to the notice of  the executive committee of the school by Lt. Col. G.V. Lucas and the  Principal had promised to stop the mal-practice as corporal  punishment was against the rules of the Central School.  The Principal  of the school forwarded the complaint of Capt. Balasubramanyam to

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the Regional office of Kendriya Vidyalaya Sangathan, Bombay on  25.2.1975.  The Assistant Commissioner, Kendriya Vidyalaya  Sangathan then wrote to the Principal on 1.3.1975 to send a report  along with original statements regarding the complaint of beating to  the students by the respondent.   For the purposes of sending the  report an enquiry was conducted in which statements of eight students  including Master V.K. Srinivasalu were recorded.   The Principal had  earlier asked for an explanation from the respondent vide his letter  dated 26.2.1975 which he had given.  The statement of the students  was recorded in the presence of the respondent wherein he was  allowed to put questions to them.  He was again asked to give his own  statement, which he refused to give.  The enquiry officer then  submitted his opinion on 7.3.1975 and the same is being reproduced  below :- OPINION OF THE ENQUIRY OFFICER         "Based on the evidence adduced above, I am of the  opinion that Shri SHIDE, PT Teacher, Central School,  DEHU Road has meted out corporal punishment to  Master VK Srinivasalu, Student IX Std. on 18 Feb. 75.    I further feel that he has been indulging in the practice  of meting out corporal punishment to students from  time to time with varying degrees of severity.          I recommend that disciplinary action be taken  against Shri Shide.  

                                               Sd/-                                             Enquiry Officer"

The Assistant Commissioner, Kendriya Vidyalaya Sangathan,  Bombay Region thereafter passed the impugned order on 21.3.1975  by which the respondent was informed that his services were no  longer required and the same shall stand terminated with effect from  30.4.1975.    

6.      The findings recorded by the High Court on the basis of which  the judgments and decrees passed by the two Courts below were set  aside and the second appeal preferred by the respondent was allowed  decreeing his suit, require to be noticed.   In para 9, the High Court  has held :- "9.     ........... Furthermore it has been indicated by the  case itself that the order of termination of service was  after initiation of the enquiry in which articles of  imputation and charge were served on the appellant and  some witnesses were examined.  It implicitly conveys the  information that the said enquiry was either not brought  or completed. Had that been completed, the  circumstances which were against the appellant would  have been put to him for the purpose of affording him an  opportunity of submitting his explanation to those  circumstances, otherwise there would not have been  order which would have been conveyed to the appellant  that the said enquiry was dropped.   None of these two  things did happen and therefore, there is irresistible  conclusion coming up showing that the order of  termination of service of the appellant was nothing but  the result of said enquiry which was neither completed  legally nor dropped."

        Again in para 11, the High Court held :-  

"11.    In the present case both the Courts below have  committed gross error of law in ignoring that the said  order of termination of service of the appellant followed  the said enquiry neither legally completed nor dropped.   

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Had it been the case that the said enquiry was dropped  then there should have been some meaning to say that the  said order of termination of service was not carrying any  stigma. But in this case that is not so. Without  completion of that enquiry, service of appellant has been  terminated and the appellant has been put under dolour  by uncertainty of future. ......................................."       

7.      The learned counsel for the appellant Kendriya Vidyalaya  Sangathan has submitted that the enquiry held against the respondent  was not a disciplinary enquiry but was only in the nature of a  preliminary or fact finding enquiry.   In fact the enquiry officer after  holding of the fact finding enquiry had himself recommended that  disciplinary action be taken against the respondent.   However, instead  of taking disciplinary action, the appellant thought it proper to  terminate the services of the respondent in terms of the appointment  order as he was a purely temporary employee and his services were  terminable by one month’s notice on either side without assigning any  reasons.   Learned counsel for the appellant has further submitted that  the High Court has grossly erred in equating a preliminary or fact  finding enquiry with that of a regular disciplinary enquiry and in  coming to a conclusion that the services of the respondent had been  terminated by way of punishment.  It has also been urged that the  termination order is a simple order passed in terms of the appointment  order and it is non-stigmatic and does not visit the respondent with  any evil consequences and in such circumstances the High Court  manifestly erred in setting aside the judgments and decrees passed by  the two Courts below and in decreeing the suit filed by the  respondent.   Learned counsel for the respondent has, on the other  hand, submitted that on the basis of a complaint made by Capt. V.K.  Balasubramanyam regarding beating of his son, an enquiry had been  held wherein statements of students had been recorded and in these  circumstances the order terminating the services of the respondent  was based upon the result of the said enquiry and had been passed by  way of punishment.  It has been urged that as the respondent had not  been afforded any opportunity to defend himself, there was complete  violation of principles of natural justice and as the order had been  passed by way of punishment it was wholly illegal and the High  Court, therefore, rightly decreed the suit filed by the respondent.    

8.      We have given careful consideration to the submissions made  by learned counsel for the parties and have also examined the material  on record.   It may be mentioned, at the outset, that the respondent  was appointed as PT teacher in Kendriya Vidyalaya Sangathan and as  such he does not hold a civil post within the meaning of Article 311 of  the Constitution and the said provision does not apply to him.  One of  the terms of the appointment order (offer of appointment) dated  25.6.1974 was that his services were terminable by one month’s  notice on either side without assigning any reasons.  The respondent  accepted the appointment order and joined duty and thereby accepted  the conditions of appointment, namely, that his services were  terminable by one month’s notice without any reasons being assigned.  His services were terminated vide notice dated 21.3.1975 with effect  from 30.4.1975 in terms of the appointment order.   The order  terminating the services of the respondent is a wholly innocuous order   and does not contain any stigma against him.  It may also be noted  that the notice of termination of services was served upon the  respondent when he had put in less than 9 months of service.    9.      The question which arises for consideration is, whether the  order of termination of services of the respondent had been passed by  way of punishment or it had been passed in accordance with the  conditions mentioned in the appointment order by which the  respondent had been appointed on a temporary post of Physical  Education Teacher.  If it is found that the termination of services was  by way of punishment, another question may arise whether a formal

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departmental enquiry was held prior to the passing of termination  order and whether the respondent was given adequate opportunity to  defend himself in the said enquiry.  It will be seen that the complaint  made by Capt. B.K. Balasubramanyam about forcing his son Master  V.K. Srinivasalu to do six rounds (4 Kms.) around the school when he  was having chest pain and was unwell and further forcing him to do  PT and other exercises in spite of advice of the doctor and also giving  him beating was forwarded by the Principal to the Regional Office of  Kendriya Vidyalaya Sangathan, Bombay.  The Assistant  Commissioner of the Kendriya Vidyalaya Sangathan asked the  Principal to submit a report along with original statements of the  students, who had been subjected to beating by the respondent.  The  Principal was not an eye witness of the incident relating to Master  V.K. Srinivasalu and also of the corporal punishment which was  awarded by the respondent to the other students.  Therefore, in order  to ascertain the complete facts it was necessary to make enquiry from  the concerned students.  If in the course of this enquiry the respondent  was allowed to participate and some queries were made from the  students, it would not mean that the enquiry so conducted assumed the  shape of a formal departmental enquiry.  No articles of charges were  served upon the respondent nor the students were asked to depose on  oath.  The High Court has misread the evidence on record in  observing that articles of charges were served upon the respondent.   The limited purpose of the enquiry was to ascertain the relevant facts  so that a correct report could be sent to the Kendriya Vidyalaya  Sangathan.  The enquiry held can under no circumstances be held to  be a formal departmental enquiry where the non-observance of the  prescribed rules of procedure or a violation of principle of natural  justice could have the result of vitiating the whole enquiry.  There  cannot be even a slightest doubt that the Assistant Commissioner,  Kendriya Vidyalaya Sangathan, Bombay Region, terminated the  services of the respondent in accordance with the terms and conditions  mentioned in his appointment order which expressly conferred power  upon the appointing authority to terminate the respondent’s services  by one month’s notice without assigning any reasons.  The services of  the respondent were, therefore, not terminated by way of punishment. 10.     A similar question was considered in considerable detail in  State of Maharashtra vs. Veerappa R. Saboji AIR 1980 SC 42, and it  was observed as under: - "Ordinarily and generally the rule laid down in most of  the cases by this Court is that you have to look to the  order on the face of it and find whether it casts any  stigma on the Government servant.  In such a case there  is no presumption that the order is arbitrary or mala fide  unless a very strong case is made out and proved by the  Government servant who challenges such an order."

In State of Uttar Pradesh and another vs. Kaushal Kishore Shukla  (1991) 1 SCC 691, the employee was appointed on ad hoc basis on  18.2.1977 as an Assistant Auditor and his employment was extended  on several occasions and the last extension was granted on 21.1.1980,  which was to expire on 28.2.1981.  His services were terminated on  23.9.1980.  The termination order was challenged on the ground that  certain allegations of misconduct had been made against him  regarding which an ex-parte inquiry was held wherein he was not  given any opportunity of hearing.  The High Court accepted the plea  of the employee that the order of termination of services was founded  on the allegations of misconduct and the ex-parte equiry report and  accordingly quashed the termination order.  This Court set aside the  judgment of the High Court with the following observations:-         "The respondent being a temporary government  servant had no right to hold the post, and the competent  authority terminated his services by an innocuous order  of termination without casting any stigma on him.  The  termination order does not indict the respondent for any

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misconduct.  The inquiry which was held against the  respondent was preliminary in nature to ascertain the  respondent’s suitability and continuance in service.   There was no element of punitive proceedings as no  charges had been framed, no inquiry officer was  appointed, no findings were recorded, instead a  preliminary inquiry was held and on the report of the  preliminary inquiry the competent authority terminated  the respondent’s services by an innocuous order in  accordance with the terms and conditions of his service.   Mere fact that prior to the issue of order of termination,  an inquiry against the respondent in regard to the  allegations of unauthorized audit of Boys Fund was held,  does not change the nature of the order of termination  into that of punishment as after the preliminary inquiry  the competent authority took no steps to punish the  respondent, instead it exercised its power to terminate the  respondent’s services in accordance with the contract of  service and the Rules.  The allegations made against the  respondent contained in the counter-affidavit by way of  defence filed on behalf of the appellants also do not  change the nature and character of the order of  termination."

In S.P. Vasudeva vs. State of Haryana and others AIR 1975 SC 2292,  it was held that where an order of reversion of a person who had no  right to the post, does not show ex facie that he was being reverted as  a measure of punishment or does not cast any stigma on him, the  courts will not normally go behind that order to see if there were any  motivating factors behind that order.   Both these decisions have been  rendered by Benches of three learned Judges. 11.     In Ravindra Kumar Misra vs. U.P. State Handloom Corporation  Ltd. and another AIR 1987 SC 2408, the appellant had been appointed  on 30.10.1976 and had got two promotions while still working in  temporary status and by 1982 he had been working as Deputy  Production Manager.  On 22.11.1982 he was placed under suspension  and the suspension order recited that as a result of preliminary  inquiries made by the Central Manager it had come to notice that the  appellant was responsible for misconduct, dereliction of duty,  mismanagement and showing fictitious production of terrycot cloth.     The suspension order was revoked on 1.2.1983 and thereafter on  10.2.1983 a simple order terminating his services was passed reciting  that his services were no more required and his services would be  deemed to be terminated from the date of receipt of the notice.  It was  further mentioned therein that he would be entitled to receive one  month’s salary in lieu of notice period.  The termination order was  challenged by the appellant on the ground that the same was punitive  in nature, which was also demonstrated from the fact that shortly  before the order of termination a suspension order had been passed  wherein a specific charge of misconduct against him was mentioned.   After referring to several earlier decisions this Court repelled the  challenge made by the employee by observing as under in paragraph 6  of the Report: - "................In several authoritative pronouncements of  this Court, the concept of ’motive’ and ’foundation’ has  been brought in for finding out the effect of the order of  termination.  If the delinquency of the officer in  temporary service is taken as the operating motive in  terminating the service, the order is not considered as  punitive while if the order of termination is founded upon  it, the termination is considered to be a punitive action.   This is so on account of the fact that it is necessary for  every employer to assess the service of the temporary  incumbent in order to find out as to whether he should be

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confirmed in his appointment or his services should be  terminated.  It may also be necessary to find out whether  the officer should be tried for some more time on  temporary basis.  Since both in regard to a temporary  employee or an officiating employee in a higher post  such an assessment would be necessary merely because  the appropriate authority proceeds to make an assessment  and leaves a record of its views the same would not be  available to be utilized to make the order of termination  following such assessment, punitive in character."

12.     In Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of  Medical Sciences and another (2002) 1 SCC 520, after referring to  large number of earlier decisions, the law on the point has been very  clearly elucidated in the following manner :-         "One of the judicially evolved tests to determine  whether in substance an order of termination is punitive  is to see whether prior to the termination there was (a) a  full-scale formal enquiry (b) into allegations involving  moral turpitude or misconduct which (c) culminated in a  finding of guilt.  If all three factors are present the  termination has been held to be punitive irrespective of  the form of the termination order.  Conversely if any one  of the three factors is missing, the termination has been  upheld.

..........................................................................................

       Generally speaking when a probationer’s  appointment is terminated it means that the probationer is  unfit for the job, whether by reason of misconduct or  ineptitude, whatever the language used in the termination  order may be.  Although strictly speaking, the stigma is  implicit in the termination, a simple termination is not  stigmatic.  A termination order which explicitly states  what is implicit in every order of termination of a  probationer’s appointment, is also not stigmatic.  In order  to amount to a stigma, the order must be in a language  which imputes something over and above mere  unsuitability for the job."

13.     In State of Punjab vs. Sukhwinder Singh (2005) 5 SCC 569, a  Bench of three learned Judges to which one of us was a party, after  referring to several earlier decisions of this Court including those  referred to above, laid down the principle as under in para 19 of the  report : "19.    It must be borne in mind that no employee whether  a probationer or temporary will be discharged or  reverted, arbitrarily, without any rhyme or reason.   Where a superior officer, in order to satisfy himself  whether the employee concerned should be continued in  service or not, makes inquiries for this purpose, it would  be wrong to hold that the inquiry which was held, was  really intended for the purpose of imposing punishment.   If in every case where some kind of fact finding inquiry  is made, wherein the employee is either  given an  opportunity to explain or the inquiry is held behind his  back, it is held that the order of discharge or termination  from service is punitive in nature, even a bona fide  attempt by the superior officer to decide whether the  employee concerned should be retained in service or not  would run the risk of being dubbed as an order of  punishment.  The decision to discharge a probationer  during the period of probation or the order to terminate

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the service of a temporary employee is taken by the  appointing authority or administrative heads of various  departments, who are not judicially trained people. The  superior authorities of the departments have to take work  from an employee and they are the best people to judge  whether an employee should be continued in service and  made a permanent employee or not having regard to his  performance, conduct and overall suitability for the job.   As mentioned earlier a probationer is on test and a  temporary employee has no right to the post.  If mere  holding of an inquiry to ascertain the relevant facts for  arriving at a decision on objective considerations whether  to continue the employee in service or to make him  permanent is treated as an inquiry "for the purpose of  imposing punishment" and an order of discharge or  termination of service as a result thereof "punitive in  character", the fundamental difference between a  probationer or a temporary employee and a permanent  employee would be completely obliterated, which would  be wholly wrong."

14.     As shown above, the nature of enquiry conducted against the  respondent was merely a preliminary or fact finding enquiry and no  formal full scale departmental enquiry had been conducted against the  respondent.  In fact, the enquiry officer had himself recommended that  disciplinary action be taken against the respondent.  However, the  authorities chose not to hold a disciplinary enquiry against the  respondent and did not serve him with any article of charges or take  any further steps in that regard.  Instead they chose to exercise power  under the terms and conditions of the appointment order.  The  termination order is wholly innocuous and does not cast any stigma  upon the respondent nor it visits him with any evil consequences.  The  High Court seems to have proceeded on a wholly wrong basis and has  treated the enquiry which was only a preliminary or fact finding  enquiry into a regular disciplinary enquiry, which was not the case  here.  In these circumstances the judgment of the High Court is  wholly erroneous in law and has to be set aside.   15.     Learned counsel for the respondent has relied upon Samsher  Singh vs. State of Punjab & Anr. (1974) 2 SCC 831, Bishan Lal Gupta  Vs. State of Haryana & Ors. (1978) 1 SCC 202,  Anoop Jaiswal Vs.  Government of India & Anr. (1984) 2 SCC 369 and Dipti Prakash  Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences,  Calcutta & Ors. (1999) 3 SCC 60 in support of his submission that the  impugned order of termination of services had been passed by way of  punishment and as the same had been done without affording an  opportunity of defending himself, the termination order was illegal.    In Bishan Lal Gupta (supra) it was held where the intention behind an  inquiry against a probationer was not to hold a full departmental trial  to punish but a summary inquiry to determine only suitability to  continue in service of the probationer and the probationer was given  ample opportunity to answer in writing whatever was alleged against  him in show cause notice, the innocuous order of termination  following such summary inquiry could not be said to be an order of  punishment which entitled him to a full-fledged inquiry contemplated  by Article 311 of the Constitution.  In Anoop Jaiswal (supra) and  Dipti Prakash Banerjee (supra) it was found as a fact that the  misconduct alleged was the foundation of the impugned order of  termination of services.    It was after analysis of all earlier decisions  that the principle of law has been laid down in Pavanendra Narayan  Verma vs. Sanjay Gandhi PGI of Medical Sciences, referred to above.   Therefore, the authorities cited by learned counsel for the respondent  do not advance his case in any manner.  16.     In the result, the appeals are allowed and the judgment and  decree dated 5.3.2002 passed in Second Appeal No.463 of 1988 and  also the order dated 3.11.2003 passed in review petition by the High

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Court are set aside.  The decrees passed by the two Courts below  dismissing the suit filed by the respondent are affirmed.   No order as  to costs.