Full Judgment Text
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CASE NO.:
Appeal (civil) 5242 of 2002
PETITIONER:
State of Uttar Pradesh and Ors.
RESPONDENT:
Vijay Shanker Tripathi
DATE OF JUDGMENT: 20/07/2005
BENCH:
ARIJIT PASAYAT & H.K. SEMA
JUDGMENT:
JUDGMENT
ARIJIT PASAYAT, J.
Heard learned counsel for the parties.
The service of the respondent was terminated by an order dated 16.08.1988.
It was indicated that his services were no longer required and, therefore,
notice was given with the requisite one month pay and allowance. Such
termination was questioned before the State Public Service Tribunal, Uttar
Pradesh (in short ‘the Tribunal’). The Claim petition No. 337/V/89 was
dismissed holding that the order of termination was a termination
simpliciter and no stigma was attached. It was found that there were
certain allegations and the respondent-employee had more or less accepted
the allegations. The order of termination was, therefore, neither attached
with any stigma nor was visited by any punitive character. Accordingly, it
was held that Article 311(2) of the Constitution of India, 1950 (in short
’the Constitution’) was not attracted. The respondent-employee filed a
writ petition only on the ground that Article 311(2) of the Constitution
was required to be followed in the case of temporary government servants.
High Court was of the view that Article 311(2) is required to be followed
even in case of temporary Government employees. Accordingly, the order of
termination was set aside and the writ petition was allowed.
In support of the appeal, learned counsel for the appellant-State and its
functionaries submitted that the basic issue before the High Court was
whether the order of termination was a termination simpliciter or there
was any stigma attached. There is no quarrel to the proposition that
Article 311(2) is attracted to temporary government servants. But whether
on the facts of the case, the order of termination was legal, was not
tested by the High Court. It was pointed out that there is nothing in the
order of termination which even remotely shows any stigma and, therefore,
the High Court was not justified in ignoring this aspect and allowing the
writ petition. Learned counsel for the respondent, on the order hand,
submitted that before the order of termination, an enquiry was purportedly
conducted and some materials were taken on record. Without granting any
opportunity to the respondent herein and without holding an enquiry, the
order of termination was passed. According to him, the enquiry report was
both the motive and the foundation for the order of termination.
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 was 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
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period of probation has been generating undying debate. The recent two
decisions of this Court in Dipti Prakash Banerjee 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 after
referring to various decisions 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 simpiciter 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.’’
Therefore, without expressing any opinion on the merits of the case, we set
aside the order of the High Court, remit the matter to the High Court for
fresh consideration. It appears that counter affidavit was not filed by the
appellant-State and its functionaries before the High Court. The same shall
be filed within six weeks. If it is not filed, then, the High Court shall
proceed on the materials before it. If any counter is filed and the
respondent-employee wants to file any further affidavit, adequate time
shall be granted by the High Court to the respondent-employee.
The appeal is, accordingly, disposed of with no order as to cost.