Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (civil) 9470 of 2003
PETITIONER:
State of Haryana & Anr.
RESPONDENT:
Satyender Singh Rathore
DATE OF JUDGMENT: 08/09/2005
BENCH:
ARIJIT PASAYAT & H.K. SEMA
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
State of Haryana and Director General, Health Services,
Haryana call in question legality of the judgment rendered
by a Division Bench of the Punjab and Haryana High Court
holding that the order of termination passed by the
authorities was without legal sanction.
The background facts in a nutshell are as follows:
Respondent (hereinafter referred to as the ’employee’)
was appointed as Medical Officer in the Directorate of
Health Services, Haryana by an order dated 6.11.1997 on a
fixed salary of Rs.8,000/- per month for a period of six
months from the date of joining. It was clearly indicated
in the letter of appointment that the services of the
employee being on contractual basis could be terminated at
any time without assigning any reason with 24 hours notice
from either side. By order dated 25.3.2002 services of the
employee were terminated. The same was challenged before
the High Court by filing a writ petition.
Before the High Court it was urged by the writ
petitioner that the order of termination, though in the face
of it appears to be termination simpliciter, was relatable
to alleged misconduct and, therefore, was penal in nature.
Reference was made to a decision of this Court in A.P. State
Federation of Coop. Spinning Mills Ltd. and Anr. v. P.V.
Swaminathan (2001 (10) SCC 83) to contend that the order of
termination was founded on the alleged misconduct as stated
in the order dated 25.3.2002. The formal order of
termination involved adverse civil consequences. The stand
of the opposite parties before the High Court (appellants
herein) was that the misconduct may have provided a motive
for the order of termination but not a foundation. The High
Court by the impugned judgment held that the misconduct
referred to was the foundation and not the motive. As the
order involved civil consequences, therefore, the same could
not have been passed without complying Principles of Natural
Justice. The order was according to the High Court
stigmatic. In the order passed by the State Government dated
25.3.2002 reference was made to the alleged misconduct of
the employee and on the basis thereof the order of
termination dated 11.4.2002 was passed. It was accordingly
held that the employee was entitled to all the consequential
benefits along with re-instatement. Liberty was, however,
given to proceed further after complying with statutory
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
rules governing service of the employees or the rules of
natural justice as the case may be.
Learned counsel for the appellants submitted that the
order of termination as passed did not refer to any
misconduct. It was a case of termination simpliciter. The
reference to the misconduct of the employee as contained in
the order dated 11.4.2002 was in relation to the
allegations made against the employee, and no inquiry was
conducted or finding of guilt arrived at. After perusing
the appointment order and the entire record the Government
took the decision to relieve the employee from suspension
for termination in terms of appointment order with immediate
effect. The misconduct alleged and referred to at the most
can be treated as the motive for the order of termination
but it was not the foundation.
Learned counsel for the respondent on the other hand
submitted that though the order of termination was on the
face of it appeared to be termination simpliciter, in
reality, it was outcome of the deliberations made and,
therefore, was the foundation for the order of termination.
It is submitted that allegations were made to the police as
well as the Public Grievance Committee. Report was lodged
with the police and considering the police report and
without affording any opportunity to the employee, the
proceedings were abandoned midway and the services of the
respondent were terminated.
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
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 131 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
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
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
(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."
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 provided 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 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
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."
When the factual scenario of the present case is
considered in the background of legal principles set out
above, the inevitable conclusion is that the High Court was
not justified in interfering with the order of termination.
The judgment of the High Court is set aside and the
appeal is allowed with no order as to costs.