http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (civil)  9470 of 2003

PETITIONER: State of Haryana & Anr.                                  

RESPONDENT: Satyender Singh Rathore                                  

DATE OF JUDGMENT: 08/09/2005

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       State of Haryana and Director General, Health Services,  Haryana call in question legality of the judgment rendered  by a Division Bench of the Punjab and Haryana High Court  holding that the order of termination passed by the  authorities was without legal sanction.

       The background facts in a nutshell are as follows:

       Respondent (hereinafter referred to as the ’employee’)  was appointed as Medical Officer in the Directorate of  Health Services, Haryana by an order dated 6.11.1997 on a  fixed salary of Rs.8,000/- per month for a period of six  months from the date of joining.  It was clearly indicated  in the letter of appointment that the services of the  employee being on contractual basis could be terminated at  any time without assigning any reason with 24 hours notice  from either side.  By order dated 25.3.2002 services of the  employee were terminated.  The same was challenged before  the High Court by filing a writ petition.  

       Before the High Court it was urged by the writ  petitioner that the order of termination, though in the face  of it appears to be termination simpliciter, was relatable  to alleged misconduct and, therefore, was penal in nature.   Reference was made to a decision of this Court in A.P. State  Federation of Coop. Spinning Mills Ltd. and Anr. v. P.V.  Swaminathan  (2001 (10) SCC 83) to contend that the order of  termination was founded on the alleged misconduct as stated  in the order dated 25.3.2002.  The formal order of  termination involved adverse civil consequences. The stand  of the opposite parties before the High Court (appellants  herein) was that the misconduct may have provided a motive  for the order of termination but not a foundation.  The High  Court by the impugned judgment held that the misconduct  referred to was the foundation and not the motive.  As the  order involved civil consequences, therefore, the same could  not have been passed without complying Principles of Natural  Justice. The order was according to the High Court  stigmatic. In the order passed by the State Government dated  25.3.2002 reference was made to the alleged misconduct of  the employee and on the basis thereof the order of  termination dated 11.4.2002 was passed.  It was accordingly  held that the employee was entitled to all the consequential  benefits along with re-instatement. Liberty was, however,  given to proceed further after complying with statutory

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

rules governing service of the employees or the rules of  natural justice as the case may be.  

       Learned counsel for the appellants submitted that the  order of termination as passed did not refer to any  misconduct. It was a case of termination simpliciter.  The  reference to the misconduct of the employee as contained in  the order dated 11.4.2002 was in relation to the   allegations made against the employee, and no inquiry was  conducted or finding of guilt arrived at.  After perusing  the appointment order and the entire record the Government  took the decision to relieve the employee from suspension  for termination in terms of appointment order with immediate  effect. The misconduct alleged and referred to at the most  can be treated as the motive for the order of termination  but it was not the foundation.

       Learned counsel for the respondent on the other hand  submitted that though the order of termination was on the  face of it appeared to be termination simpliciter, in  reality, it was outcome of the deliberations made and,  therefore, was the foundation for the order of termination.  It is submitted that allegations were made to the police as  well as the Public Grievance Committee.  Report was lodged  with the police and considering the police report and  without affording any opportunity to the employee, the  proceedings were abandoned midway and the services of the  respondent were terminated.

       In what situation the allegation of misconduct will be  the motive and in what cases they will be foundation has to  be adjudged in the factual background of each case. The  issue has been examined in several decisions including  several Constitution Bench judgments and a judgment of 7- judges.  An elaborate analysis of the various decisions was  made by this Court in Radhey Shyam Gupta v. U.P.State Agro  Industries Corpn. Ltd. and Anr. (1999(2) SCC 21). The matter  was examined elaborately by 7-Judges in Samsher Singh v.  State of Punjab and Anr. (1974 (2) SCC 831).  In the said  case it was noted in paragraphs 79 and 80 as follows: "79. The Enquiry Officer nominated by the  Director of Vigilance recorded the statements  of the witnesses behind the back of the  appellant. The enquiry was to ascertain the  truth of allegations of misconduct. Neither  the report nor the statements recorded by the  Enquiry Officer reached the appellant. The  Enquiry Officer gave his findings on  allegations of misconduct. The High Court  accepted the report of the Enquiry Officer  and wrote to the Government on June 25, 1969  that in the light of the report the appellant  was not a suitable person to be retained in  service. The order of termination was because  of the recommendations in the report.  80. The order of termination of the services  of Ishwar Chand Agarwal is clearly by way of  punishment in the facts and circumstances of  the case. The High Court not only denied  Ishwar Chand Agarwal the protection under  Article 131 but also denied itself the  dignified control over the subordinate  judiciary. The form of the order is not  decisive as to whether the order is by way of  punishment. Even an innocuously worded order

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

terminating the service may in the facts and  circumstances of the case establish that an  enquiry into allegations of serious and grave  character of misconduct involving stigma has  been made in infraction of the provision of  Article 311. In such a case the simplicity of  the form of the order will not give any  sanctity. That is exactly what has happened  in the case of Ishwar Chand Agarwal. The  order of termination is illegal and must be  set aside."  

       In  Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel  Tubes Mazdoor Sabha and Ors. (1980(2) SCC 593) it was  observed as follows: "53: Masters and servants cannot be  permitted to play hide and seek with the law  of dismissals and the plain and proper  criteria are not to be misdirected by  terminological cover-ups or by appeal to  psychic processes but must be grounded on the  substantive reason for the order, whether  disclosed or undisclosed. The Court will find  out from other proceedings or documents  connected with the formal order of  termination what the true ground for the  termination is. If, thus, scrutinized, the  order has a punitive flavour in cause or  consequence, it is dismissal. If it falls  short of this test, it cannot be called a  punishment. To put it slightly differently, a  termination effected because the master is  satisfied of the misconduct and of the  consequent desirability of terminating the  service of the delinquent servant, is a  dismissal, even if he had the right in law to  terminate with an innocent order under the  standing order or otherwise. Whether, in such  a case the grounds are recorded in a  different proceeding from the formal order  does not detract from its nature. Nor the  fact that, after being satisfied of the  guilt, the master abandons the enquiry and  proceeds to terminate. Given an alleged  misconduct and a live nexus between it and  the termination of service the conclusion is  dismissal, even if full benefits as on simple  termination, are given and non-injurious  terminology is used.  54. On the contrary, even if these is  suspicion of misconduct the master may say  that he does not wish to bother about it and  may not go into his guilt but may feel like  not keeping a man he is not happy with. He  may not like to investigate nor take the risk  of continuing a dubious servant. Then it is  not dismissal but termination simpliciter, if  no injurious record of reasons or punitive  pecuniary cut-back on his full terminal  benefits is found. For, in fact, misconduct  is not then the moving factor in the  discharge. We need not chase other  hypothetical situations here."  

       In A.G. Benjamin v. Union of India (1967 (1) LLJ 718

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

(SC) the factual position was as follows:

"A charge memo was issued, explanation was  received and an enquiry officer was also  appointed but before the enquiry could be  completed, the proceedings were dropped  stating that "departmental proceedings will  take a much longer time and we are not sure  whether after going through all the  formalities, we will be able to deal with the  accused in the way he deserves."

In that case, order of termination was held not to be  punitive.  The ratio was adopted in State of Punjab v. Sukh  Raj Bahadur (AIR 1968 SC 1089) and it was concluded as  follows:

       "The departmental enquiry did not proceed  beyond the stage of submission of a charge  sheet followed by the respondent’s explanation  thereto.  The enquiry was not proceeded with;  there were no sittings of any enquiry officer,  no evidence recorded and no conclusion arrived  at on the equity."

       We find that the High Court did not consider the  question of stigma or the effect of any enquiry held before  the order of termination was passed.  The question whether  the enquiry purportedly held provided the motive or the  foundation was required to be considered by the High Court  in detail.  That has not been done.  The question whether  termination of service is simpliciter or punitive has been  examined in several cases e.g. Dhananjay v. Chief Executive  Officer, Zilla Parishad, Jalna (2003 (2) SCC 386) and Mathew  P. Thomas v. Kerala State Civil Supply Corporation Limited  and Ors. (2003 (3) SCC 263). An order of termination  simpliciter passed during the period of probation has been  generating undying debate.  The recent two decisions of this  Court in Dipti Prakash Bamerjee v. Satyendra Nath Bose  National Centre for Basic Sciences, Calcutta (1999 (3) SCC  60) and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of  Medical Sciences (2002 (1) SCC 520) after survey of most of  the earlier decisions touching the question observed as to  when an order of termination can be treated as simpliciter  and when it can be treated as punitive and when a stigma is  said to be attached to an employee discharged during the  period of probation.  The learned counsel on either side  referred to and relied on these decisions either in support  of their respective contentions or to distinguish them for  the purpose of application of the principles stated therein  to the facts of the present case. In the case of Dipti  Prakash Banerjee (supra) after referring to various  decisions it was indicated as to when a simple order of  termination is to be treated as "founded" on the  allegations of misconduct and when complaints could be only  as a motive for passing such a simple order of termination.   In para 21 of the said judgment a distinction is explained  thus:

"If findings were arrived at in an enquiry  as to misconduct, behind the back of the  officer or without a regular departmental  enquiry, the simple order of termination is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

to be treated as "founded" on the allegations  and will be bad. But if the enquiry was not  held, no findings were arrived at and the  employer was not inclined to conduct an  enquiry but, at the same time, he did not  want to continue the employee against whom  there were complaints, it would only be a  case of motive and the order would not be  bad. Similar is the position if the employer  did not want to enquire into the truth of the  allegations because of delay in regular  departmental proceedings or he was doubtful  about securing adequate evidence. In such a  circumstance, the allegations would be a  motive and not the foundation and the simple  order of termination would be valid. From a  long line of decisions it appears to us that  whether an order of termination is  simpliciter or punitive has ultimately to be  decided having due regard to the facts and  circumstances of each case. Many a times the  distinction between the foundation and motive  in relation to an order of termination either  is thin or overlapping.  It may be difficult  either to categorize or classify strictly  orders of termination simpliciter falling in  one or the other category, based on  misconduct as foundation for passing the  order of termination simpliciter or on motive  on the ground of unsuitability to continue in  service."                        When the factual scenario of the present case is  considered in the background of legal principles set out  above, the inevitable conclusion is that the High Court was  not justified in interfering with the order of termination.

       The judgment of the High Court is set aside and the  appeal is allowed with no order as to costs.