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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: SHRI BIHARI LAL SIDHANA

DATE OF JUDGMENT:       25/03/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.  We have  heard learned  counsel on both sides.      This appeal  by special  leave arises form the judgment of the  Division  Bench,  made  on  September  12,  1996  in L.P.A.No.215/1979  by   the  Delhi  High  Court.  While  the respondent was working as a cash clerk in Delhi Milk Scheme, temporary Mis-appropriation  of the  funds on  more than one occasion   was    discovered.   When   misappropriation   of Rs.17,744,91 on April 2,1972 was reported, a prosecution was pending, orders  were passed  by the  competent authority on April 24, 1972 as under :      "In pursuance  of  the  proviso  to      sub-rule  (1)  of  Rule  5  of  the      Central Civil  services  (Temporary      Services)  Rules.  1965,  I  hereby      terminate forthwith the services of      Shri  B.L.   Sidhana,  Case   clerk      (under  suspension),   Delhi   milk      scheme and  direct that he shall be      paid a  sum equivalent  to the  one      equivalent to the amount of pay and      allowances fr  a period  of notice)      was drawing them immediately before      the date  on which  he was  drawing      them immediately  before the  dated      on  which   he  was   placed  under      suspension."      The respondent  was acquitted  of  the  charge  in  the criminal case  and therefore,  he filed  a writ petition. In his order, the learned single Judge held thus :      "The petition  of Cash Clerk is one      of confidence  and  responsibility.      Even  if   the  incidents   averred      against  the  petitioner  were  not      proved, they  were such, as to lead      a prudent employer to terminate the      services   of   the   employer   to      terminate  the   services  of   the      employee on  the ground of his, not

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    being  desirable.   The  order   of      termination was  passed, as noticed      above, one  year after the criminal      case  had  started  and  two  years      after  the   enquiry.  The  enquiry      appears not to have been completed,      so, no  definite opinion  had  been      arrived as with regard to the guilt      of   the   petitioner.   No.   evil      consequences were  visited  on  the      termination. No.  evil consequences      were visited  on the  petition as a      result of the order of termination.      Nor has  any stigma  been attached.      No. penalties were inflicted on the      petitioner despite  the  enquiries,      and the  started  of  the  criminal      case.  In   the  circumstances  the      order of termination simpliciter is      valid.   Since    the   order    is      innocuous, there is no need to peer      behind  it,  unless  malafides  had      been established."      On appeal, the Division Bench reversed it, holding that the order  of removal  does indicate that it was termination of the  services of  the respondent  with stigma attached by mentioning (under  suspension). Rule  5(1)  of  the  central civil services  (Temporary service) Rules, 1965 was exercise with stigma  attached in  the order. The order does indicate that he  was under  suspension. It postulates that it was by way of  a misconduct  and  thereby  without  conducting  the enquiry, the  termination of  the service  of the respondent was illegal.  Consequently, instead  of reinstating him into service the court directed the appellant-employer to pay him compensation in  a sum  of Rs. 2.50 lakhs. Aggrieved by that order, this appeal has been filed.      It  is  true  that  respondent  was  acquitted  by  the criminal court  but acquittal  does not  automatically gives him the  right to  be reinstated into the services. It would still be  open to  the competent  authority to make decision whether the  delinquent Government servant can be taken into service or  disciplinary action  should be  taken under  the Central civil  services (Clarification,  Control  &  Appeal) Rules or under the Temporary services Rules. Admittedly, the respondent  had  been  working  as  a  temporary  Government servant before he was kept under suspension. The termination order indicated  the factum  that he,  by  then,  was  under suspension. It is only a way of describing him a being under suspension when  the order  came to  be passed but that does not constitute  any stigma.  Mere  acquittal  of  Government employee  does  not  automatically  entitle  the  Government employe  does   not  automatically  entitle  the  Government servant to  reinstatement. As  stated earlier,  it would  be open to  the  appropriate  competent  authority  to  take  a decision whether the enquiry into the conduct is required to be done before directive reinstatement of appropriate action should be taken as  per  law, if otherwise, available. Since the respondent  is only  a temporary Government servant, The power being  available under  Rules, it  is  always  open  a temporary Government  servant,  the  power  being  available under rules, it is always open to the competent authority to invoke the  said power  and terminate  the  service  of  the employe instead  of conducting  there enquiry or to continue in service  a   Government servant accused of defalcation of public money.  Reinstatement would  be a  charter for him to

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indulge with impunity in misappropriating of public money.      Under these  circumstances, the  Division Bench  of the High court  was clearly in error in directing payment of the compensation which amounts to premium for misconduct.      The appeal  is accordingly allowed. The judgment of the Division Bench  stands set  aside and  that of  the  learned single Judge  stands confirmed.  The  writ  petition  stands dismissed. No costs.