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PETITIONER: NAR SINGH PAL

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       28/03/2000

BENCH: R.P.Sethi, S.S.Ahmad

JUDGMENT:

S.SAGHIR AHMAD, J.       Leave  granted.   The  appellant, who was  engaged  as casual  labour in October, 1982 by the Telecom Department at Agra,  had  worked  continuously as such for more  than  ten years   and  had  also   acquired  ‘temporary’  status,  was prosecuted  for  an offence, under Section 324, 427 and  504 IPC,  said  to have been committed on 20.4.1992.  The  trial dragged  on  for many years and ultimately by  judgment  and order   dated  27.2.1998  passed  by  the   Chief   Judicial Magistrate,  Agra, he was acquitted, but in the meantime, by order  dated 20.5.1992, his services were terminated against which  he  made  a representation to  the  General  Manager, Telecom  Department,  G.M.T.  Office, Lucknow, on  21.7.1992 but the representation was not heeded to and, therefore, the appellant filed a petition before the Central Administrative Tribunal,  Principal  Bench,  New  Delhi  (for  short,  ‘the Tribunal’),  on 25.8.1992 which was dismissed on  4.12.1997. The  order of the Tribunal was challenged in a Writ Petition filed  in  the Delhi High Court but the High Court,  by  its order  dated October 30, 1998, dismissed the Writ  Petition. The  order  dated  20.5.1992 by which the  services  of  the appellant  were  terminated  reads as under:- "To  Shri  Nar Singh  Pal,  Casual Employee, S/o Shri Hari Prasad,  Village Sarai  Jairam,  P/O  Barhan, Distt.  Agra.   Letter  -  D.E. Planning  (Admn) N.S.  Pal/92-93/5 dated 20.5.92.  Dear, You had  beaten  with iron article and had bitten with teeth  to Shri  Mahender Singh, son of Shri Ratan Singh, gateman,  Tax Bhawan, Agra on 20.4.92 in the evening at 8.00 P.M.  who was on  duty.   Due  to  the above-said  conduct,  you  are  not deserved/competent  to be in the Govt.  service any more and you  are  casual  employee.  Therefore,  your  services  are terminated  with  immediate effect.  Nevertheless,  you  are being  paid  Retrenchment  benefit.   The  under-  mentioned cheque  is being annexed with this letter:  Sd/- D.E.  PHONE (ADM)  TELECOM DISTT.  AGRA - 282001.  ANNEXURE - ONE CHEQUE Cheque No.13 425777 Dt.  19.5.92 Bank - State Bank of India, Agra.   Rs.6350/-  (Six thousand three hundred fifty  only)" This  order,  ex  facie,  is punitive in  nature.   It  was, therefore,  contended before the Tribunal that the  services of  the appellant could not be terminated without holding  a regular  departmental enquiry.  The question was dealt  with by  the Tribunal as follows:- "4.  After perusing the record and considering the rival arguments, we are of the view that the  respondents could either initiate departmental  enquiry against  the  applicant  for   the  alleged  misconduct,  or terminate   his   services  by   payment   of   retrenchment

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compensation,  overlooking  the misconduct  alleged  against him.  In the present case, the retrenchment compensation was paid  and it appears that the same was accepted by encashing the  cheque by the applicant.  Accordingly, he cannot now be allowed  to urge that the termination was bad because  there was  no enquiry into the alleged misconduct against him.  5. From  the allegations made in para 4 of the application,  we find  that  a report was also lodged against  the  applicant with  the Police in respect of the same incident and a  case was  registered against him for offences under Sections 324, 427  and  504  IPC.  The applicant was also arrested  and  a chargesheet  was  filed against him in the court.  The  case was  pending  on the date of the application and we  do  not know  what  happened to the prosecution thereafter,  but  it appears that there was prima facie some material against the applicant  to  hold that his services were not  satisfactory and to retrench his services on that basis.  Accordingly for the  aforesaid  reasons, we find no merit in this OA and  it deserves  to be dismissed." The reasoning of the Tribunal is fallacious.   If  an  order  had   been  passed  by  way  of punishment  and  was punitive in nature, it was the duty  of the  respondents to hold a regular departmental enquiry  and they could not have terminated the services of the appellant arbitrarily  by  paying him the  retrenchment  compensation. The  observation of the Tribunal that the respondents had  a choice  either to hold a regular departmental enquiry or  to terminate   the   services  by   payment   of   retrenchment compensation  is wholly incorrect.  The appellant, no doubt, was  a casual labour but as observed by the Tribunal, he had acquired  temporary status with effect from 1.10.1989.  Once an  employee  attains  the ‘temporary’  status,  he  becomes entitled to certain benefits one of which is that he becomes entitled  to  the  constitutional  protection  envisaged  by Article  311 of the Constitution and other Articles  dealing with  services  under the Union of India.  A perusal of  the impugned  order by which the services of the appellant  were terminated indicates that since the appellant had beaten one Mahender  Singh  with iron rod and had also bitten him  with teeth  on  20.4.1992 at 8.00 P.M.  while the  said  Mahender Singh  was on duty as Gateman, Tax Bhawan, Agra,  therefore, his  services  were terminated with immediate effect.   Thus the services were terminated on account of the allegation of assault made against the appellant.  This Court on 24.1.2000 passed  the following Order:- "Learned counsel appearing for the  respondents  is  granted  six   weeks’  time  to   seek instructions  whether regular departmental proceedings  were taken  in this matter or not." When the case was next  taken up,  the  entire papers relating to the enquiry were  placed before  us by the counsel for the respondents which indicate that  a regular departmental enquiry was not held and only a preliminary  enquiry  was held against the appellant on  the basis  of  which his services were terminated.   The  letter dated  21st of April, 1992, from Assistant Engineer  Trunks, T.M.X.   Tax Bhawan, Agra-3, to Shri Shital Din,  Divisional Engineer, Phones (Planning & Administration), Agra, recites, inter  alia,  as under:- "Shri Nar Singh Pal, Ty.Mazdoor  of this unit assaulted on Shri Mahendra Singh, Gate Man who was on  duty at Main gate of Tax Bhawan, Agra and was performing 14.00  to  22.00  hrs duty on  20.4.92.   This  mishappening occurred  at  20.00  hrs.   on  20.4.92.   At  the  time  of incident,  I was in Trunk Exchange, Agra, when Shri Mahendra Singh,  Gate  Man approached to the undersigned  in  injured condition  for help.  I rushed to the gate of Tax Bhawan for spot  verification and making detailed enquiry of the  case. I found that the culprit Shri Nar Singh Pal was abusing Shri

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Mahendra  Singh, Gateman.  Shri Nar Singh Pal, Ty.   Mazdoor not  only  assaulted on Shri Mahendra Singh, Gateman but  he also  threatened to kill me when I was making spot  enquiry. As  per my observation Shri Nar Singh Pal, Ty.  Mazdoor  was under  drunk  condition.  I immediately informed to you  and thereafter  S.O.  Rakabga Police Station on phone  regarding this  incidence."  The letter further recites as under:-  "I shall  be grateful if you may kindly take a suitable  action against  Shri  Nar  Singh Pal, Ty.Mazdoor  who  has  created hindrance  in  government  work, damages of  the  government property and created the terror and horror amongst the staff due  to  his  gunda  activities   and  has  threatened   the undersinged." The documents which have been placed before us pertain   to  the  preliminary   enquiry  made  against  the appellant  in which the statement of certain persons who had seen  the  incident  was  recorded.   The  services  of  the appellant  were,  thereafter, terminated by paying  him  the retrenchment  compensation  through a cheque along with  the order  dated 20.5.1992.  The order having been passed on the basis of preliminary enquiry and not on the basis of regular departmental enquiry without issuing a chargesheet or giving an  opportunity  of  hearing  to the  appellant,  cannot  be sustained.  We may, at this stage, refer to the observations of  Krishna  Iyer,  J.   in Gujarat Steel  Tubes  Ltd.   vs. Gujarat  Steel  Tubes  Mazdoor Sabha, (1980) 2 SCC  593,  in which  the  learned Judge observed as under:- "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 scrutinised,  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."  ( Emphasis supplied ) Applying the above principles, the  order  in the instant case, cannot be treated to  be  a simple order of retrenchment.  It was an order passed by way of  punishment  and,  therefore, was an order  of  dismissal which,   having  been  passed   without  holding  a  regular departmental  enquiry, cannot be sustained.  Learned counsel for  the  respondents  contended   that  the  appellant  was involved in a criminal case having assaulted Mahendra Singh, Gateman,  at  the  Tax  Bhawan,  Agra  and,  therefore,  his services could be terminated in terms of Section 25-F of the Industrial Disputes Act by a notice in writing together with retrenchment  compensation which admittedly was paid to  him through the cheque regarding which the Tribunal has recorded a  finding that it was encashed by the appellant.  The  fact that  the  appellant was involved in a criminal case is  not

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disputed by the appellant.  What is contended by him is that he  was ultimately acquitted by the court of Chief  Judicial Magistrate,   Agra  and,  therefore,   involvement  of   the appellant  in  a criminal case could not have been made  the basis for terminating his services.  Since the appellant was acquitted, and it was a clean acquittal, the stigma attached to  him of having been prosecuted in a criminal case  should have been treated to have disappeared and no argument can be allowed  to be raised for justifying the order of  dismissal on the ground of appellant’s involvement in a criminal case. The  Tribunal  as also the High Court, both appear  to  have been  moved by the fact that the appellant had encashed  the cheque  through which retrenchment compensation was paid  to him.    They   intended  to   say  that  once   retrenchment compensation  was  accepted  by the appellant,  the  chapter stands  closed and it is no longer open to the appellant  to challenge  his  retrenchment.  This, we are  constrained  to observe,  was  wholly  erroneous  and was  not  the  correct approach.   The  appellant  was  a  casual  labour  who  had attained  the  ‘temporary’  status after having put  in  ten years’  of  service.   Like any other employee,  he  had  to sustain himself, or, may be, his family members on the wages he  got.   On the termination of his services, there was  no hope left for payment of salary in future.  The retrenchment compensation  paid to him, which was only a meagre amount of Rs.6,350/-,  was  utilised by him to sustain himself.   This does not mean that he had surrendered all his constitutional rights  in  favour of the respondents.   Fundamental  Rights under the Constitution cannot be bartered away.  They cannot be  compromised  nor can there be any estoppel  against  the exercise   of  Fundamental  Rights   available   under   the Constitution.   As  pointed out earlier, the termination  of the appellant from service was punitive in nature and was in violation  of  the  principles of natural  justice  and  his Constitutional  rights.  Such an order cannot be  sustained. For  the  reasons stated above, the appeal is allowed.   The judgment dated 4.12.1997, passed by the Tribunal as also the judgment dated 30.10.1998, passed by the High Court, are set aside  and  the claim petition of the appellant  is  allowed with  costs throughout.  The order dated 20.5.1992, by which the  services  of the appellant were terminated, is  quashed with  the direction that the appellant shall be put back  on duty  on  the post which he held on 20.5.1992 and  shall  be paid  all  the  arrears upto date  and  other  consequential benefits admissible under the rule.