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CASE NO.: Appeal (civil)  510 of 2006

PETITIONER: Jai Singh

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 18/08/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T [With Civil Appeal Nos. 512/2006, 513/2006. 511/2006 and 514/2006]

ARIJIT PASAYAT, J.  

       These appeals involve identical questions and,  therefore, are disposed of by this common judgment.  Writ  Petitions filed by the Appellants were dismissed by a  Division Bench of the Delhi High Court holding that  termination of their services suffered from no infirmity.  

       Civil appeal No. 510 of 2006 relates to writ petition no.  4794 of 1995 while other appeals relate to other writ  petitions which were disposed of following the view  expressed in the common judgment.   

       Factual background in a nutshell is as follows:

       The appellants were recruited by the respondent No.3   as "Daily Wage Constables" and they were posted in an  auxiliary battalion namely 124 Auxiliary Battalion. While the  appellants were thus serving on ad-hoc basis, a decision  was taken by the respondents to disband the said Battalion  and to install a permanent battalion in its place. At that  stage the appellants along with others went on a general  strike in Moradabad. Subsequently, they withdrew their  strike. Cases of all the Daily Wage Constables including that  of the appellants was considered for their regularization and  for placing them in a permanent Battalion. The services of  the appellants were, however, terminated and similar  certificates of service were issued to all the appellants.  As  against Clause No.10 of the said certificate of service giving  reason for termination, it was stated that since the services  were no longer required due to disbandment of the unit, the  services of the appellants were being terminated.  Clause  No.12 of the said certificate speaks of the conduct as against  which three heads were provide as good, satisfactory and  unsatisfactory.  The appellants conduct had been shown in  the said column as "unsatisfactory".

       Being aggrieved by the said orders of termination, the  appellants submitted representations, which were  considered by the Deputy Inspector (General) of Police,  CRPF.  By a communication dated 5th April, 1995,  representations filed by the appellants were disposed of.  In  the said order it was stated that the appellants were engaged  as auxiliary constable with CRPF purely on ad-hoc basis on

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daily wages and that they were not found suitable for  absorption on regular basis in CRPF on disbandment of  Auxiliary Battalion due to misconduct and attitude as  reported by the Commandant of the 124 Auxiliary Battalion.

       For the aforesaid reasons, the said representations  were found to be devoid of merit and were rejected.

       Being aggrieved by the same an appeal was also  preferred which also came to be disposed of by order dated  4th June, 1994.  This order states that the appellants were  engaged in 124 Auxiliary Battalion CRPF on daily wage basis  and services of such persons could be terminated at any  time without assigning any reason.  It was observed that  Auxiliary Battalion stood disbanded on 31st March, 1994  and only those constables who were fit in all respects were  engaged and as the appellants did not fall in the said  category, their services were terminated. Consequently, their  appeals were rejected.

       The appellants preferred three writ petitions before the  High Court challenging the orders and actions aforestated of  the respondents.                          

       The High Court on consideration of the rival  submissions held that conduct for which the appellants  were not found suitable for regularization cannot by any  stretch of imagination be said to be becoming of members of  a disciplined force. Accordingly, the writ petition was  dismissed. It was held that the act of the respondents before  it finding out the suitability of the appellants did not amount  to imposition of any punishment and, therefore, no enquiry  was required to be initiated.  The writ petitioners were at the  relevant point of time members of the CRPF, a disciplined  force and higher degree of discipline was called for. The  employer passed a simple order of termination as permitted  by the terms of appointment and/or permitted by the rules.   The indiscipline to which reference was made to find the  appellants unsuitable was not the foundation of the order of  termination, but at the most the motive for it.

As noted above, the writ petitions were dismissed.

Learned counsel for the appellants submitted that the  termination simpliciter was a camouflage. The alleged  indiscipline was the foundation for the termination for the  termination and not the motive as noted by the High Court.   There was no material to describe the appellants as the ring  leaders who allegedly instigated the other ad-hoc Constables  of the erstwhile 124 Auxiliary Battalion. There was no full- fledged investigation in this regard. It appears that  preliminary enquiry was conducted by a higher ranked  officer of the post.  According to learned counsel for the  respondents the authorities were satisfied that the  unwarranted act the appellant rendered them unfit for  employment in an organization which demands forbearance,  endurance and high order of discipline to serve in the most  hostile conditions.  The appellants were not recruited in the  force as regular cadets and were, in fact, daily wage cadets.   It was pointed out that in view of the unsatisfactory conduct  they were not considered for absorption.   

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

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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 311 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 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

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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  (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."

The question whether termination of service is  simpliciter or punitive has been examined in several other

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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 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."       

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These aspects were highlighted recently in State of  Haryana and Another v. Satyender Singh Rathore [2005 (7)  SCC 518].                

In the background of facts as noticed by the High  Court the order of termination cannot be faulted.  The High  Court had rightly declined to interfere.  We find no reason to  take a different view. The appeals are accordingly dismissed.