Full Judgment Text
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PETITIONER:
OM PRAKASH GOEL
Vs.
RESPONDENT:
HIMACHAL PRADESH TOURISM DEVELOPMENT CORPORATION LTD. SHIMLA
DATE OF JUDGMENT06/05/1991
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
PANDIAN, S.R. (J)
CITATION:
1991 AIR 1490 1991 SCR (2) 701
1991 SCC (3) 291 JT 1991 (3) 6
1991 SCALE (1)892
CITATOR INFO :
D 1992 SC 496 (26)
ACT:
Civil Service:
Constitution of India, 1950: Articles 311(2), 14 and
16-Termination of service by simple notice after conducting
enquiry-Whether in the nature of camouflage and by way of
punishment-Juniors retained in service but senior’s service
terminated-Whether arbitrary and discriminatory.
Himachal Pradesh Tourism Development Corporation Staff
Regulations: Regulation 19(3)(b) and 39-Termination of
service-Allegations of misconduct-Enquiry conducted-Order
terminating service by simple notice passed-Whether valid-
Whether in the nature of camouflage and by way of
punishment-Senior’s service terminated while retaining
juniors in service-Whether arbitrary and discriminatory-
Employee practising as lawyer since termination-Whether
entitled to backwages on reinstatement.
HEADNOTE:
A charge sheet was issued to the petitioner, a directly
recruited Accountant in the respondent Corporation alleging
that while working in the Transport Wing of the Corporation,
he facilitated and abetted the embezzlement of Rs.100 by not
ensuring that the amount found was in excess, and thus he
failed to serve the Corporation honestly and faithfully,
that he made some fictitious entries in the Cash Book and
that he made certain information public without the
permission of the Managing Director. The petitioner replied
that all the charges were fake and false. the leave
sanctioned to the petitioner earlier for prosecuting legal
study was canceled and the petitioner challenged the same in
the High Court but the case was adjourned. Meanwhile, the
petitioner’s services were terminated on the ground that he
was no longer required and that one month’s pay in lieu of
notice would be paid in terms and conditions of his
appointment letter and provisions of Staff Regulations of
the Corporation. The petitioner challenged the same before
the High Court, but the Writ Petition was dismissed in
limine.
702
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In the appeal before this Court it was contended that
the termination was only a camouflage and that though the
petitioner was still a temporary servant, yet the
termination amounted to punishment, because of the manner in
which it was passed and the background behind it. It was
also contended that though the termination order stated that
the petitioner’s services were no longer required, his
juniors were retained and were continuing in service, in
violation of Articles 14 and 16 of the Constitution.
Disposing of the Special Leave Petition, this Court
HELD: 1.1 In a case of an order of termination, even
that of a temporary employee, the Court has to see whether
the order was made on the ground of misconduct if such a
complaint was made and in that process the Court would
examine the real circumstances, as well as the basis and
foundation of the order complained of and if the Court is
satisfied that the termination of services is not so
innocuous as claimed to be and if the circumstances further
disclose that it is only a camouflage with a view to avoid
an enquiry as warranted by Article 311(2) of the
Constitution, then such a termination is liable to be
quashed. [706E-F]
Annop Jaiswal v. Government of India & Anr., [1984] 2
SCR 453; Nepal Singh v. State of U.P. & Ors., [1985] 2 SCR 1
and Jarnail Singh & Ors. etc. v. State of Punjab & Ors.,
[1986] 2 SCR 1022, relied on.
1.2 In the instant case, the termination order, though
appears to be innocuous was only intended to punish the
petitioner for the misconduct, in respect of the allegations
which are mentioned in the charges that were served on him.
As a matter of fact, the enquiry was conducted, but before
the conclusion of the enquiry, the termination order was
passed. Therefore, it is not difficult to see that the form
of the termination order is only a clock for an order of
punishment. [707C-D]
1.3 Besides, the termination is also liable to be
quashed on the ground that it is violative of Articles 14
and 16 of the Constitution, as it is clear from the records
that while the petitioner’s juniors are retained in service,
the petitioner’s services are terminated as no longer
required. [708F, 709A-B]
Jarnail Singh & Ors. etc. v. State of Punjab & Ors.,
[1986]2 SCR 1022 and K.C. Joshi v. Union of India and Ors.,
[1985]3 SCR 869, relied on.
703
1.4 In the circumstances, the termination order is
quashed and the petitioner is directed to be reinstated in
service. However, it shall be open to the respondent-
Corporation to proceed with the disciplinary enquiry if it
so chooses. [709H]
1.5 As regards the backwages, admittedly the petitioner
has been practising as a lawyer since his termination. But
this Court has not refused to grant background that the
employee has been practicing as lawyer during the relevant
period, but has taken into consideration the probable income
that would have been earned him, while granting backwages.
However, a roving enquiry cannot be made by this Court nor
would it be possible for the respondent-Corporation to
unearth the income which the petitioner would have derived
as practising advocate. Undoubtedly, the petitioner would
have been entitled to subsistence allowance till his
reinstatement, even if the relevant period is treated as one
of suspension pending enquiry. Therefore, the petitioner
shall be entitled to the full back wages upto the date of
his enrollment as a lawyer and from that date upto the date
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of reinstatement at the rate of half of the subsistence
allowance per month. Out of the total income, the income
admittedly earned by him as a practising lawyer shall be
deducted and the balance paid to the petitioner. The amount
so paid shall, for the purpose of income tax, be spread over
as if derived during those financial years from the date of
his dismissal till date of reinstatement. [708B, 709D-G,
710A-B]
S.M. Saiyad v. Baroda Municipal Corporation, relied on.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Special Leave Petition
No. 13560 of 1983.
From the Judgment and Order dated 27.6.1983 of the
Himachal Pradesh High Court in C. W. P. No. 86 of 1983.
P.P. Rao and H. J. Zaviri for the Petitioner.
V.K. Kanth and C.P. Pandey for the Respondents.
The following Order of the Court was delivered by
K. JAYACHANDRA REDDY, J. The petitioner was directly
appointed as an Accountant in the Himachal Pradesh Tourism
Development Corporation Ltd. (’Corporation’ for short) on
28.8.78 He was on probation in the Transport Wing of the
Corporation. After
704
training he was transferred to the Office of the Area
Manager, Simla and was posted as an Accountant. His
conditions of service were governed by the Regulations made
by the Board of Directors of the Corporation. The
petitioner detected certain irregularities in the Transport
Wing and wrote a letter dated 19.6.1980 to the Transport
Officer pointing out the financial irregularities and
embezzlements committed by the then Cashier. The employees’
Union took up the matter and demanded the Management to take
necessary action and also made some demands on behalf of the
Union. The petitioner was the General Secretary of the
Union. In April 1980, the respondent No. 2 was posted as
the new Managing Director. According to the petitioner he
was annoyed with the petitioner because of his union
activities. It is stated that the petitioner actively
participated in highlighting the demands. On 13.5.1981 an
order transferring the petitioner to Dalhousie was passed,
even though the petitioner had been earlier granted
permission on 23.7.79 to do his 3 years Law course as an
evening student. the petitioner made a representation for
cancellation of the transfer on the ground that he was
already half way through his legal study and that the
transfer was mala fide. Respondent No. 2 got more annoyed.
The petitioner submitted a study leave application for one
year. But he was granted only 90 days leave in the first
instance with full pay and allowances and later on half pay
and subsequently without pay he was granted extra ordinary
leave. Meanwhile, a chargesheet was issued on 21st August,
1981 framing certain charges. The gravamen of the charges
is that while working in the Transport Wing of the
Corporation the petitioner facilitated and abetted the
embezziment of Rs. 100 by notensuring that the amount found
was in excess and that he failed to serve the Corporation
honestly and faithfully. The other charge is that he made
some fictitious entries in the Cash Book and the fourth
charge is that he made certain information public without
the permission of the Managing Director. To this the
petitioner submitted a reply stating that all the charges
are fake and false. It is stated that the petitioner’s
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leave was cancelled and the petitioner challenged the same
in the High Court of Himachal Pradesh but the case was
adjourned. Meanwhile the petitioner’s services were
terminated with effect from 8th January, 1982 stating that
they are no longer required and one month’s pay in lieu of
notice would be paid in terms and conditions of his
appointment letter and provisions of Staff Regulations of
the Corporation. The petitioner challenged the same before
the High Court, but the Writ Petition was dismissed in
limine. In this Court it is urged that the termination is
only a camouflage and that though the petitioner was still a
temporary servant yet the termination amounted to punishment
because of the manner in which it was
705
passed and the background behind it.
It is not in dispute that the Corporation has power to
terminate the services by giving one month’s notice or pay
in lieu thereof, in the case of a temporary employee who
have completed one month’s service. Regulation 19(3) reads
thus:
Termination of service by notice
"19(3) The Corporation may terminate the services
of any employee by giving him:
(a) xx xx xx
(b) one month’s notice, or pay in lieu thereof, in
the case of temporary employees who have completed
one months service and one day’s notice or pay in
lieu thereof in the case of temporary employees in
the first month of their service."
Regulation 39 prescribes various penalties that can be
awarded and termination of service is one of them. Now the
only question that arises for consideration in this case is
whether the termination of the petitioner’s services is
simply one as per the Regulation 19(3) or in the nature of a
camouflage and, therefore, amounts to punishment as
contended by the petitioner.
In Anoop Jaiswal v. Government of India & Anr., p[1984]
2 SCR 453, it is held as under:
"Where the form of the order is merely a camouflage
for an order of dismissal for misconduct it is
always open to the Court before which the order is
challenged to go behind the form and ascertain the
true character of the order. If the Court holds
that the order though in the form is merely a
determination of employment is in reality a clock
for an order of punishment, the Court would not be
debarred, merely because of the form of the order,
in giving effect to the rights conferred by law
upon the employee."
In Nepal Singh v. State of U.P. & Ors., [1985] 2 SCR it is
held as under:
706
"Where allegations of misconduct are levelled
against a Government Servant, and it is a case
where the provisions of Article 31(2) of the
Constitution should be applied, it is not open to
the competent authority to take the view that
holding the enquiry contemplated by the clause
would be a bother or a nuisance and that therefore
it is entitled to avoid the mandate of that
provision and resort to the guise of an ex-facie
innocuous termination order. The Court will view
with great disfavour any attempt to circumvent the
constitutional provision of article 311(2) in a
case where that provision comes into play."
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In Jarnail Singh & Ors., etc. v. State of Punjab & Ors.,
[1986] 2 SCR 1022 it is, held thus:
"When an allegation is made by the employee
assailing the order of termination as one based on
misconduct though conched in innocuous terms, it is
incumbent on the court to lift the veil and to see
the real circumstances as well as the basis and
foundation of the order complained of. In other
words, the Court, in such a case, will lift the
veil and will see whether the order was made on the
ground of misconduct, inefficiency or not."
From the above decisions it can be seen that it is
well-settled that in a case of an order of termination even
that of a temporary employee the Court has to see whether
the order was made on the ground of misconduct if such a
complaint was made and in that process the Court would
examine the real circumstances as well as the basis and
foundation of the order complained of and if the Court is
satisfied that the termination of services is not so
innocuous as claimed to be and if the circumstances further
disclose that it is only a camouflage with a view to avoided
an enquiry as warranted by Article 311(2) of the
Constitution, then such a termination is liable to be
quashed. In the above mentioned decisions, the impugned
termination order was accordingly quashed.
It is not in dispute that a regular chargesheet was
served on the petitioner, as mentioned above, on 21st
August, 1981 and to the said chargesheet a list of documents
also was appended on the basis of which the articles of
charge were framed. The petitioner replied to these charges
on 7th September, 1981. Without reference to any of the
charges or the reply the order of termination was passed on
8th
707
January, 1982 as already mentioned. In the counter-
affidavit at more than one place it is admitted about the
framing of the charges etc. regarding the news item which
refers to the information given out by the petitioner. It
is stated in the counter-affidavit that services of the
petitioner were terminated as a probationer and not on the
basis of the enquiry report which came after the services of
the petitioner had been terminated. It can therefore be
seen that an enquiry, in fact, was contemplated and was held
but the report came into light after termination of the
services of the petitioner. It is also submitted on behalf
of the petitioner that the audit report would show many
irregularities as pointed out by the petitioner and that the
petitioner acted honestly in pointing out the
irregularities. It is not necessary for us to go into this
question. Having gone through the various records and also
the admissions made in he counter-affidavit, we are
satisfied that the termination order, though appears to be
innocuous, was only intended to punish the petitioner for
the misconduct, in respect of the allegations which are
mentioned in the charges that were served on him. After
serving the chargesheet, as a matter of fact, the enquiry
was conducted. But before the conclusion of the enquiry the
termination order was passed. Therefore it is not difficult
to see that the form of the termination order is only a
cloak for an order of punishment.
In this context, the learned counsel also questioned
the termination order from another angle. In that order it
is mentioned that the services of the petitioner are no
longer required, therefore they are terminated. But from
the record it is clear that juniors to the petitioner are
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retained and they are continuing in service. In the
affidavit it is clearly mentioned that juniors whose names
are given there are retained in service in violation of
Article 14 and 16 of the Constitution. In the counter-
affidavit only a vague reply is given simply stating that
the averments made by the petitioner are not correct. In
K.C. Joshi v. Union of India and Ors., [1985] 3 SCC 869. It
is observed that ’If it is discharge simpliciter, it would
be violative of Article 16, because a number of store-
keepers junior to the appellant are shown to have been
retained in the service’. Likewise in Jarnail Singh’s case
it was observed as under:
"In the instant case, ad hoc services of the
appellants have been arbitrarily terminated as no
longer required while the respondents have retained
other surveyors who are juniors to the appellants.
Therefore, on this ground also, the impugned order
of termination of the services of the appellants
are illegal and bad being in contravention of the
708
fundamental rights guarantee under Article 14 and
16 of the Constitution of India."
After a careful perusal of the record we are satisfied that
the juniors to the petitioners are retained. Therefore on
this ground also the termination order is liable to be
quashed.
Admittedly the petitioner has been practising as a
lawyer ever since his services were terminated. In the
rejoinder filed by him he merely stated that he was not
earning much in that profession and that he has incurred
debts. The learned counsel for the Corporation, however,
submitted that since the petitioner was admittedly
practising as a lawyer the question of granting him back
wages is any event does not arise and that even otherwise
there cannot be a roving enquiry to the earning he has made
as a lawyer at this distance of time. The petitioner,
however, at this juncture filed a further affidavit that his
total income from 1985 onwards uptilnow was only Rs.15,550
and that he has not received any other income during all
these years. It is also submitted on his behalf that in
similar circumstances this Court awarded back wages even in
a case of an employee who practised as a lawyer from the
date of dismissal till his reinstatement. In S. M. Saiyad v.
Baroda Municipal Corporation, the employee was directed to
be reinstated in service by the labour court. Then
ultimately on the question of back wages it was urged before
this Court that though the appellant was practising as a
lawyer after enrolment during that period still he was
entitled for back wages. This Court accepted this plea and
observed as under:
"The appellant seeks back wages for the period
December 12, 1969 to October 26, 1976. This period
according to the respondent has to be divided in
two parts; (1) from December 12, 1969 to Jan. 20,
1972 when the appellant was enrolled as an
advocate, and (2) for the period Jan. 21, 1976 to
October 26, 1976 from which date he has already
been awarded back wages, it was submitted on behalf
of the respondent that the appellant himself has
admitted that since his being enrolled as an
advocate he was earning Rs. 150 per month which
aspect must be borne in mind while considering the
submission of the appellant for the award of back
wages."
Partly accepting this plea this Court ultimately observed
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that the appellant therein must have atleast stated earning
after a lapse of one
709
year from the date on which he was enrolled as an advocate.
Ultimately this court directed that:
"We, accordingly, allow this appeal and set aside
the decision of the High Court refusing the back
wages for the period December 12, 1969 to October
26, 1976 and directed that the appellant shall be
entitled to back wages including salary and
allowances and other benefits to which he would be
entitled as if the has continued the service.
While making the payment of back wages as per this
order the respondent is entitled to deduct the
amount of Rs. 150 p.m. from January 20, 1973 to
October 26, 1976 from the amount which becomes
payable to the appellant. The respondent must
compute the amount payable as herein directed and
pay what becomes payable to the appellant within a
period of two months from today."
It can therefore be seen that this Court did not refuse to
grant back wages on the simple ground that the employee was
a practicing lawyer during the relevant period.But on the
other hand it took into account the probable income and
after deducting the same the balance of back wages was
directed to be computed.
In the instant case in the affidavit filed by the
petitioner it is stated that he was practising as an income-
tax advocate ever since his enrolment in October, 1982.
But, however, he asserted that he got his first brief in the
year 1985. These averments are contradicted by the other
side. Under these circumstance we cannot make a roving
enquiry nor would it be possible for the corporation to
unearth the income which the petitioner would have derived
as a practising advocate. There are many imponderables and
conjectures too. Under these circumstances we asked both
the counsels to suggest a solution. We have heard both the
sides on this aspect elaborately. Shri P. P. Rao, learned
counsel for the petitioner submitted that if the relevant
period is to be treated as one of suspension pending enquiry
the petitioner would have been entitled to the subsistence
allowance till his reinstatement. That atleast should be
the criteria in granting the back wages in a situation like
this. We think this is a reasonable and fair suggestion.
In the result the termination order is quashed and
consequently the petitioner shall be reinstated in service.
However, he shall be entitled to the full back wages upto
the date of his enrolment as a
710
lawyer which was in the month of October, 1982. From the
date of his enrolment upto the date of reinstatement he
shall be entitled to the back wages at the rate of half of
the subsistence allowance per month and the total amount
shall be computed on that basis. Out of that the income of
Rs.15,550 admittedly earned by him as a practising lawyer
shall be deducted and the balance amount shall be paid to
the petitioner. The amount so paid to him shall for the
purpose of income tax, be spread over as if derived during
those financial years from the date of his dismissal till
the date of reinstatement. However, we would like to make
it clear that it is open to the Corporation to proceed with
the disciplinary enquiry if it so chooses.
The special leave petition is accordingly disposed of.
In the circumstances of the case there will be no order as
to costs.
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N.P.V SLP disposed of.
711