Full Judgment Text
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CASE NO.:
Appeal (civil) 5452-5453 of 2004
PETITIONER:
Kendriya Vidyalaya Sangathan
RESPONDENT:
Arunkumar Madhavrao Sinddhaye & Anr.
DATE OF JUDGMENT: 31/10/2006
BENCH:
G.P. MATHUR & A.K. MATHUR
JUDGMENT:
J U D G M E N T
G. P. MATHUR, J.
These appeals, by special leave, have been preferred against the
judgment and decree dated 5.3.2002 of Bombay High Court by which
the second appeal preferred by the respondent Arunkumar Madhavrao
Sinddhaye was allowed and the suit filed by him was decreed setting
aside the order of termination of services dated 21.3.1975 and
directing his reinstatement with full back wages. The appellant
preferred a review petition before the High Court which was
dismissed on 3.11.2003 and the said order is also under challenge.
2. The respondent Arunkumar Madhavrao Sinddhaye was
appointed on a temporary post of Physical Education Teacher in the
Kendriya Vidyalaya Sangathan on 25.6.1974. His services were
terminated vide order dated 21.3.1975 in accordance with conditions
of appointment mentioned in the appointment order. He filed a suit
for a declaration that the order of termination of his services dated
21.3.1975 was illegal, inoperative and not binding upon him. The
main plea taken in the suit instituted by the respondent was that his
services had been terminated by way of punishment as an enquiry had
been held behind his back in which some witnesses were examined
and after completion of the enquiry, in which he had not been given
any opportunity to defend himself, a report was submitted against him
and on the basis of the said report his services were terminated. The
suit was defended by the appellant on several grounds and the
principal ground being that the services of the petitioner had not been
terminated by way of punishment, but in terms of the appointment
order. The learned Civil Judge (Jr. Division) Pune, dismissed the suit
vide judgment and decree dated 28.2.1986 and the appeal preferred by
the respondent against the said decree was also dismissed by VII
Additional District Judge, Pune, by the judgment and decree dated
28.4.1987. The second appeal preferred by the respondent was,
however, allowed by the High Court and the suit was decreed as
mentioned earlier.
3. Before adverting to the submissions made by learned counsel
for the parties, it will be convenient to set out the essential facts of the
case and the findings recorded by the High Court.
4. The relevant part of the appointment order issued in favour of
the respondent by Kendriya Vidyalaya Sangathan, Bombay Regional
Office on 25.6.1974 reads as under:-
"No.F.6-5/74/KVS(BR) Date : 25th June, 1974
MEMORANDUM
SUBJECT : Offer of appointment to the post of Physical
Education Teacher.
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With reference to his/her application for the above
post, the undersigned offers to Shri Arunkumar
Madhavrao Siddhaye, a temporary post of Physical
Education Tr. in the Kendriya Vidyalaya Sangathan on
an initially pay of .................................
2. ...................................................
3. The services of the appointee are terminable by
one month’s notice on either side without any reasons
being assigned therefor. The appointing authority,
however, reserves the right of terminating the services
before the expiry of the stipulated period of notice by
making payment to the appointee of a sum equivalent to
the pay and allowances for the period of notice or the
unexpired portion thereof. .................................
4. If he/she accepts the offer on the terms and
conditions stipulated, he/she may please send his/her
acceptance to the undersigned within 7 days from the
receipt of this letter in the form attached and report for
duty to the Principal of the above mentioned Kendriya
Vidyalaya ......................................................."
The Assistant Commissioner, Kendriya Vidyalaya Sangathan,
Bombay Region issued an order on 21.3.1975 terminating the services
of the respondent with effect from 30.4.1975 and the said order reads
as under :
"Shri Arunkumar Madhavrao Siddhaye, PHT, KV, Dehu
Road is hereby informed that his services are no longer
required by the Sangathan with effect from 30.4.75
(A.N.). His services will therefore stand terminated with
effect from the above date as per terms and conditions of
appointment mentioned in the offer of appointment No.
F.4-5/74/KVS(BR) dated 25.6.74 issued to Shri Siddhaye
and the same duly accepted by him vide his letter dated
1.7.74. This may be treated as One Months’ Notice.
Sd/-
( MADAN GOPAL )
Assistant Commissioner"
5. The principal ground taken by the respondent in the suit
instituted by him was that an enquiry had been conducted behind his
back in which a finding had been recorded against him and on the
basis of the said enquiry his services had been terminated and thus it
was not a simple order of termination of services but had been passed
by way of punishment, in complete violation of principles of natural
justice. It is, therefore, necessary to refer to the relevant facts in this
regard. One Capt. V.K. Balasubramanyam sent a letter to the Station
Commander, Dehu Road on 21.2.1975 stating that his son Master
V.K. Srinivasalu, who was studying in IXth Class had developed
serious chest pain on 18th February, 1975 and in spite of his having
informed that he was not well, the PT teacher made him to run six
rounds (approx. 4 kms) around the school. As the child was not well,
he was examined in the Military Hospital on 20th February and the
doctor prescribed him some medicines and gave a written advice that
he should not do P.T. or other exercises for a week. This was shown
to the class teacher who gave a note in writing to the PT teacher
exempting the child from PT and other exercises. In spite of doctor’s
advice and written note of the class teacher, the PT teacher forced the
boy to do PT and being unable to do so, he was beaten. It was further
mentioned in the letter that this was not the only occasion when
corporal punishment had been meted out to the students by the
respondent as earlier also this fact had been brought to the notice of
the executive committee of the school by Lt. Col. G.V. Lucas and the
Principal had promised to stop the mal-practice as corporal
punishment was against the rules of the Central School. The Principal
of the school forwarded the complaint of Capt. Balasubramanyam to
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the Regional office of Kendriya Vidyalaya Sangathan, Bombay on
25.2.1975. The Assistant Commissioner, Kendriya Vidyalaya
Sangathan then wrote to the Principal on 1.3.1975 to send a report
along with original statements regarding the complaint of beating to
the students by the respondent. For the purposes of sending the
report an enquiry was conducted in which statements of eight students
including Master V.K. Srinivasalu were recorded. The Principal had
earlier asked for an explanation from the respondent vide his letter
dated 26.2.1975 which he had given. The statement of the students
was recorded in the presence of the respondent wherein he was
allowed to put questions to them. He was again asked to give his own
statement, which he refused to give. The enquiry officer then
submitted his opinion on 7.3.1975 and the same is being reproduced
below :-
OPINION OF THE ENQUIRY OFFICER
"Based on the evidence adduced above, I am of the
opinion that Shri SHIDE, PT Teacher, Central School,
DEHU Road has meted out corporal punishment to
Master VK Srinivasalu, Student IX Std. on 18 Feb. 75.
I further feel that he has been indulging in the practice
of meting out corporal punishment to students from
time to time with varying degrees of severity.
I recommend that disciplinary action be taken
against Shri Shide.
Sd/-
Enquiry Officer"
The Assistant Commissioner, Kendriya Vidyalaya Sangathan,
Bombay Region thereafter passed the impugned order on 21.3.1975
by which the respondent was informed that his services were no
longer required and the same shall stand terminated with effect from
30.4.1975.
6. The findings recorded by the High Court on the basis of which
the judgments and decrees passed by the two Courts below were set
aside and the second appeal preferred by the respondent was allowed
decreeing his suit, require to be noticed. In para 9, the High Court
has held :-
"9. ........... Furthermore it has been indicated by the
case itself that the order of termination of service was
after initiation of the enquiry in which articles of
imputation and charge were served on the appellant and
some witnesses were examined. It implicitly conveys the
information that the said enquiry was either not brought
or completed. Had that been completed, the
circumstances which were against the appellant would
have been put to him for the purpose of affording him an
opportunity of submitting his explanation to those
circumstances, otherwise there would not have been
order which would have been conveyed to the appellant
that the said enquiry was dropped. None of these two
things did happen and therefore, there is irresistible
conclusion coming up showing that the order of
termination of service of the appellant was nothing but
the result of said enquiry which was neither completed
legally nor dropped."
Again in para 11, the High Court held :-
"11. In the present case both the Courts below have
committed gross error of law in ignoring that the said
order of termination of service of the appellant followed
the said enquiry neither legally completed nor dropped.
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Had it been the case that the said enquiry was dropped
then there should have been some meaning to say that the
said order of termination of service was not carrying any
stigma. But in this case that is not so. Without
completion of that enquiry, service of appellant has been
terminated and the appellant has been put under dolour
by uncertainty of future. ......................................."
7. The learned counsel for the appellant Kendriya Vidyalaya
Sangathan has submitted that the enquiry held against the respondent
was not a disciplinary enquiry but was only in the nature of a
preliminary or fact finding enquiry. In fact the enquiry officer after
holding of the fact finding enquiry had himself recommended that
disciplinary action be taken against the respondent. However, instead
of taking disciplinary action, the appellant thought it proper to
terminate the services of the respondent in terms of the appointment
order as he was a purely temporary employee and his services were
terminable by one month’s notice on either side without assigning any
reasons. Learned counsel for the appellant has further submitted that
the High Court has grossly erred in equating a preliminary or fact
finding enquiry with that of a regular disciplinary enquiry and in
coming to a conclusion that the services of the respondent had been
terminated by way of punishment. It has also been urged that the
termination order is a simple order passed in terms of the appointment
order and it is non-stigmatic and does not visit the respondent with
any evil consequences and in such circumstances the High Court
manifestly erred in setting aside the judgments and decrees passed by
the two Courts below and in decreeing the suit filed by the
respondent. Learned counsel for the respondent has, on the other
hand, submitted that on the basis of a complaint made by Capt. V.K.
Balasubramanyam regarding beating of his son, an enquiry had been
held wherein statements of students had been recorded and in these
circumstances the order terminating the services of the respondent
was based upon the result of the said enquiry and had been passed by
way of punishment. It has been urged that as the respondent had not
been afforded any opportunity to defend himself, there was complete
violation of principles of natural justice and as the order had been
passed by way of punishment it was wholly illegal and the High
Court, therefore, rightly decreed the suit filed by the respondent.
8. We have given careful consideration to the submissions made
by learned counsel for the parties and have also examined the material
on record. It may be mentioned, at the outset, that the respondent
was appointed as PT teacher in Kendriya Vidyalaya Sangathan and as
such he does not hold a civil post within the meaning of Article 311 of
the Constitution and the said provision does not apply to him. One of
the terms of the appointment order (offer of appointment) dated
25.6.1974 was that his services were terminable by one month’s
notice on either side without assigning any reasons. The respondent
accepted the appointment order and joined duty and thereby accepted
the conditions of appointment, namely, that his services were
terminable by one month’s notice without any reasons being assigned.
His services were terminated vide notice dated 21.3.1975 with effect
from 30.4.1975 in terms of the appointment order. The order
terminating the services of the respondent is a wholly innocuous order
and does not contain any stigma against him. It may also be noted
that the notice of termination of services was served upon the
respondent when he had put in less than 9 months of service.
9. The question which arises for consideration is, whether the
order of termination of services of the respondent had been passed by
way of punishment or it had been passed in accordance with the
conditions mentioned in the appointment order by which the
respondent had been appointed on a temporary post of Physical
Education Teacher. If it is found that the termination of services was
by way of punishment, another question may arise whether a formal
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departmental enquiry was held prior to the passing of termination
order and whether the respondent was given adequate opportunity to
defend himself in the said enquiry. It will be seen that the complaint
made by Capt. B.K. Balasubramanyam about forcing his son Master
V.K. Srinivasalu to do six rounds (4 Kms.) around the school when he
was having chest pain and was unwell and further forcing him to do
PT and other exercises in spite of advice of the doctor and also giving
him beating was forwarded by the Principal to the Regional Office of
Kendriya Vidyalaya Sangathan, Bombay. The Assistant
Commissioner of the Kendriya Vidyalaya Sangathan asked the
Principal to submit a report along with original statements of the
students, who had been subjected to beating by the respondent. The
Principal was not an eye witness of the incident relating to Master
V.K. Srinivasalu and also of the corporal punishment which was
awarded by the respondent to the other students. Therefore, in order
to ascertain the complete facts it was necessary to make enquiry from
the concerned students. If in the course of this enquiry the respondent
was allowed to participate and some queries were made from the
students, it would not mean that the enquiry so conducted assumed the
shape of a formal departmental enquiry. No articles of charges were
served upon the respondent nor the students were asked to depose on
oath. The High Court has misread the evidence on record in
observing that articles of charges were served upon the respondent.
The limited purpose of the enquiry was to ascertain the relevant facts
so that a correct report could be sent to the Kendriya Vidyalaya
Sangathan. The enquiry held can under no circumstances be held to
be a formal departmental enquiry where the non-observance of the
prescribed rules of procedure or a violation of principle of natural
justice could have the result of vitiating the whole enquiry. There
cannot be even a slightest doubt that the Assistant Commissioner,
Kendriya Vidyalaya Sangathan, Bombay Region, terminated the
services of the respondent in accordance with the terms and conditions
mentioned in his appointment order which expressly conferred power
upon the appointing authority to terminate the respondent’s services
by one month’s notice without assigning any reasons. The services of
the respondent were, therefore, not terminated by way of punishment.
10. A similar question was considered in considerable detail in
State of Maharashtra vs. Veerappa R. Saboji AIR 1980 SC 42, and it
was observed as under: -
"Ordinarily and generally the rule laid down in most of
the cases by this Court is that you have to look to the
order on the face of it and find whether it casts any
stigma on the Government servant. In such a case there
is no presumption that the order is arbitrary or mala fide
unless a very strong case is made out and proved by the
Government servant who challenges such an order."
In State of Uttar Pradesh and another vs. Kaushal Kishore Shukla
(1991) 1 SCC 691, the employee was appointed on ad hoc basis on
18.2.1977 as an Assistant Auditor and his employment was extended
on several occasions and the last extension was granted on 21.1.1980,
which was to expire on 28.2.1981. His services were terminated on
23.9.1980. The termination order was challenged on the ground that
certain allegations of misconduct had been made against him
regarding which an ex-parte inquiry was held wherein he was not
given any opportunity of hearing. The High Court accepted the plea
of the employee that the order of termination of services was founded
on the allegations of misconduct and the ex-parte equiry report and
accordingly quashed the termination order. This Court set aside the
judgment of the High Court with the following observations:-
"The respondent being a temporary government
servant had no right to hold the post, and the competent
authority terminated his services by an innocuous order
of termination without casting any stigma on him. The
termination order does not indict the respondent for any
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misconduct. The inquiry which was held against the
respondent was preliminary in nature to ascertain the
respondent’s suitability and continuance in service.
There was no element of punitive proceedings as no
charges had been framed, no inquiry officer was
appointed, no findings were recorded, instead a
preliminary inquiry was held and on the report of the
preliminary inquiry the competent authority terminated
the respondent’s services by an innocuous order in
accordance with the terms and conditions of his service.
Mere fact that prior to the issue of order of termination,
an inquiry against the respondent in regard to the
allegations of unauthorized audit of Boys Fund was held,
does not change the nature of the order of termination
into that of punishment as after the preliminary inquiry
the competent authority took no steps to punish the
respondent, instead it exercised its power to terminate the
respondent’s services in accordance with the contract of
service and the Rules. The allegations made against the
respondent contained in the counter-affidavit by way of
defence filed on behalf of the appellants also do not
change the nature and character of the order of
termination."
In S.P. Vasudeva vs. State of Haryana and others AIR 1975 SC 2292,
it was held that where an order of reversion of a person who had no
right to the post, does not show ex facie that he was being reverted as
a measure of punishment or does not cast any stigma on him, the
courts will not normally go behind that order to see if there were any
motivating factors behind that order. Both these decisions have been
rendered by Benches of three learned Judges.
11. In Ravindra Kumar Misra vs. U.P. State Handloom Corporation
Ltd. and another AIR 1987 SC 2408, the appellant had been appointed
on 30.10.1976 and had got two promotions while still working in
temporary status and by 1982 he had been working as Deputy
Production Manager. On 22.11.1982 he was placed under suspension
and the suspension order recited that as a result of preliminary
inquiries made by the Central Manager it had come to notice that the
appellant was responsible for misconduct, dereliction of duty,
mismanagement and showing fictitious production of terrycot cloth.
The suspension order was revoked on 1.2.1983 and thereafter on
10.2.1983 a simple order terminating his services was passed reciting
that his services were no more required and his services would be
deemed to be terminated from the date of receipt of the notice. It was
further mentioned therein that he would be entitled to receive one
month’s salary in lieu of notice period. The termination order was
challenged by the appellant on the ground that the same was punitive
in nature, which was also demonstrated from the fact that shortly
before the order of termination a suspension order had been passed
wherein a specific charge of misconduct against him was mentioned.
After referring to several earlier decisions this Court repelled the
challenge made by the employee by observing as under in paragraph 6
of the Report: -
"................In several authoritative pronouncements of
this Court, the concept of ’motive’ and ’foundation’ has
been brought in for finding out the effect of the order of
termination. If the delinquency of the officer in
temporary service is taken as the operating motive in
terminating the service, the order is not considered as
punitive while if the order of termination is founded upon
it, the termination is considered to be a punitive action.
This is so on account of the fact that it is necessary for
every employer to assess the service of the temporary
incumbent in order to find out as to whether he should be
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confirmed in his appointment or his services should be
terminated. It may also be necessary to find out whether
the officer should be tried for some more time on
temporary basis. Since both in regard to a temporary
employee or an officiating employee in a higher post
such an assessment would be necessary merely because
the appropriate authority proceeds to make an assessment
and leaves a record of its views the same would not be
available to be utilized to make the order of termination
following such assessment, punitive in character."
12. In Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of
Medical Sciences and another (2002) 1 SCC 520, after referring to
large number of earlier decisions, the law on the point has been very
clearly elucidated in the following manner :-
"One of the judicially evolved tests to determine
whether in substance an order of termination is punitive
is to see whether prior to the termination there was (a) a
full-scale formal enquiry (b) into allegations involving
moral turpitude or misconduct which (c) culminated in a
finding of guilt. If all three factors are present the
termination has been held to be punitive irrespective of
the form of the termination order. Conversely if any one
of the three factors is missing, the termination has been
upheld.
..........................................................................................
Generally speaking when a probationer’s
appointment is terminated it means that the probationer is
unfit for the job, whether by reason of misconduct or
ineptitude, whatever the language used in the termination
order may be. Although strictly speaking, the stigma is
implicit in the termination, a simple termination is not
stigmatic. A termination order which explicitly states
what is implicit in every order of termination of a
probationer’s appointment, is also not stigmatic. In order
to amount to a stigma, the order must be in a language
which imputes something over and above mere
unsuitability for the job."
13. In State of Punjab vs. Sukhwinder Singh (2005) 5 SCC 569, a
Bench of three learned Judges to which one of us was a party, after
referring to several earlier decisions of this Court including those
referred to above, laid down the principle as under in para 19 of the
report :
"19. It must be borne in mind that no employee whether
a probationer or temporary will be discharged or
reverted, arbitrarily, without any rhyme or reason.
Where a superior officer, in order to satisfy himself
whether the employee concerned should be continued in
service or not, makes inquiries for this purpose, it would
be wrong to hold that the inquiry which was held, was
really intended for the purpose of imposing punishment.
If in every case where some kind of fact finding inquiry
is made, wherein the employee is either given an
opportunity to explain or the inquiry is held behind his
back, it is held that the order of discharge or termination
from service is punitive in nature, even a bona fide
attempt by the superior officer to decide whether the
employee concerned should be retained in service or not
would run the risk of being dubbed as an order of
punishment. The decision to discharge a probationer
during the period of probation or the order to terminate
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the service of a temporary employee is taken by the
appointing authority or administrative heads of various
departments, who are not judicially trained people. The
superior authorities of the departments have to take work
from an employee and they are the best people to judge
whether an employee should be continued in service and
made a permanent employee or not having regard to his
performance, conduct and overall suitability for the job.
As mentioned earlier a probationer is on test and a
temporary employee has no right to the post. If mere
holding of an inquiry to ascertain the relevant facts for
arriving at a decision on objective considerations whether
to continue the employee in service or to make him
permanent is treated as an inquiry "for the purpose of
imposing punishment" and an order of discharge or
termination of service as a result thereof "punitive in
character", the fundamental difference between a
probationer or a temporary employee and a permanent
employee would be completely obliterated, which would
be wholly wrong."
14. As shown above, the nature of enquiry conducted against the
respondent was merely a preliminary or fact finding enquiry and no
formal full scale departmental enquiry had been conducted against the
respondent. In fact, the enquiry officer had himself recommended that
disciplinary action be taken against the respondent. However, the
authorities chose not to hold a disciplinary enquiry against the
respondent and did not serve him with any article of charges or take
any further steps in that regard. Instead they chose to exercise power
under the terms and conditions of the appointment order. The
termination order is wholly innocuous and does not cast any stigma
upon the respondent nor it visits him with any evil consequences. The
High Court seems to have proceeded on a wholly wrong basis and has
treated the enquiry which was only a preliminary or fact finding
enquiry into a regular disciplinary enquiry, which was not the case
here. In these circumstances the judgment of the High Court is
wholly erroneous in law and has to be set aside.
15. Learned counsel for the respondent has relied upon Samsher
Singh vs. State of Punjab & Anr. (1974) 2 SCC 831, Bishan Lal Gupta
Vs. State of Haryana & Ors. (1978) 1 SCC 202, Anoop Jaiswal Vs.
Government of India & Anr. (1984) 2 SCC 369 and Dipti Prakash
Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences,
Calcutta & Ors. (1999) 3 SCC 60 in support of his submission that the
impugned order of termination of services had been passed by way of
punishment and as the same had been done without affording an
opportunity of defending himself, the termination order was illegal.
In Bishan Lal Gupta (supra) it was held where the intention behind an
inquiry against a probationer was not to hold a full departmental trial
to punish but a summary inquiry to determine only suitability to
continue in service of the probationer and the probationer was given
ample opportunity to answer in writing whatever was alleged against
him in show cause notice, the innocuous order of termination
following such summary inquiry could not be said to be an order of
punishment which entitled him to a full-fledged inquiry contemplated
by Article 311 of the Constitution. In Anoop Jaiswal (supra) and
Dipti Prakash Banerjee (supra) it was found as a fact that the
misconduct alleged was the foundation of the impugned order of
termination of services. It was after analysis of all earlier decisions
that the principle of law has been laid down in Pavanendra Narayan
Verma vs. Sanjay Gandhi PGI of Medical Sciences, referred to above.
Therefore, the authorities cited by learned counsel for the respondent
do not advance his case in any manner.
16. In the result, the appeals are allowed and the judgment and
decree dated 5.3.2002 passed in Second Appeal No.463 of 1988 and
also the order dated 3.11.2003 passed in review petition by the High
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Court are set aside. The decrees passed by the two Courts below
dismissing the suit filed by the respondent are affirmed. No order as
to costs.