TMI Blog1998 (12) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1.1976 was submitted by one Sri Ram Pal Singh, General Manager (Fertiliser) without issuing any Charge Memo or giving hearing. Copy of the report was also not given to the appellant. Thereafter, on 23.1.1976, a simple order of termination was passed stating that the appellant had been appointed as Branch Manager by order dated 17.7.1973, and Condition No.3 of the appointment order provided that the services of the appellant could be terminated at any time after giving one month's notice or one month's day in lieu thereof and that his services were being terminated with immediate effect in terms of the aforementioned Condition No. 3 of the appointment order. It was stated that the appellant could obtain one month's day from the General Manager (Fertiliser), Lucknow. It was the appellant's case before the Administrative Tribunal, Lucknow, that though the termination order appeared to be innocuous, it was still punitive in nature inasmuch as it was based on an experts report of inquiry by the said Ram Pal Singh and that the allegation of accepting a bribe in a sum of ₹ 2000/- was not merely the motive but the very foundation of the order of termination. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. [1992 Suppl.(1) SCC 524] and State of U.P. vs. Km. Premlata Misra [1994 (4) SCC 189]. The High Court held as follows: In view of the law laid down by the Hon'ble Supreme Court, we are of the opinion that the temporary services of the respondent No.1 have not been terminated by way of punishment founded on any misconduct but on the other hand, the competent authority has found that the respondent No.1 was not fit to be continued in services on account of unsatisfactory work and conduct. There is no material to establish that the respondent No.1 had outstanding or meritorious service record. It further observed: Further in view of the law laid down by Hon'ble Supreme Court, even if some parte preliminary inquiry has been conducted or disciplinary inquiry was initiated to inquire into some misconduct, it is the potion of the competent authority to withdraw the disciplinary proceedings and take the action of termination of service under the terms of appointment and the same would not be by way of punishment. One this reasoning, the Writ Petition of the Corporation was allowed, the order of the Tribunal was set aside and the termination order was upheld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led punitive merely because principles of natural justice have not been followed. On the other hand. there is another line of cases where this Court has held that the facts revealed in the inquiry are not the motive but the foundation for the termination of the services of the temporary servant of natural justice have not been followed, and such orders are to be declared void. This Court has held that for finding out whether a given case falls within either of these two categories, it is permissible for the High Court or Administrative Tribunal to go behind the order and look into the record of the proceedings, the antecedent and attendant circumstances culminating in the order of termination. In what situations the allrgations of misconduct will be the motive and in what cases they will be the foundation, it is argued, is not clear enough. In fact, Krishna Iyer, J. his characteristic style described the words 'form' substance, motive and foundation as the face of an inscrutable sohink, baffling lawyers and judges alike. [See Samsher Singh vs. State of Punjab 1974 (2) SCC 831 (at 889)]. According to him, the need in this branch of law is to lay down a simple test whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank. S.R. Das, C.J. stated (para 28) (p49) that misconduct, negligence, inefficiency or other disqualification might be the motive or the inducing factor which influenced the Government to take action under the terms of the contract of employment or the specific service rule, and the motive was irrelevant. But if the termination was 'founded' on misconduct, negligence, inefficiency or other disqualification, it would have to be treated as a punishment. It was also held that the use of the word 'termination' or 'discharge' was not conclusive. In spite of the use of such innocuous expressions, the Court could still hold it be punitive. On the facts of the case the termination of the officiating appointment was based upon certain adverse remarks and it was held that it was not by way of punishment. Next came the decision of the Constitution Bench in State of Bihar vs. Gopi Kishore Prasad [AIR 1960 SC 689]. Here a test of 'inquiry' was laid down. That was a case probationer. The Government had come to the conclusion, on inquiry, that the respondent was unsuitable for the post held on probation. Because of the inquiry, Sinha, C.J. held this to be clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of the inquiry was to find out if the employee could be confirmed. The purpose of the inquiry was not to find out if he was guilty of any misconduct, negligence, inefficiency or other disqualification. We then come to the third case decided by the Constitution Bench in Madan Gopal vs State of Punjab (AIR 1963 SC 5312. Here Shah, J. (as he then was), applied the same principle laid down earlier by him out in this case he held the order was punitive. That was a case of a temporary employee. There was a report of the Settlement Officer about the 'misconduct' of the employee and the termination was based on the said report. It was, therefore, held that though the order of termination was an order simpliciter still the Court could go behind the same and further if thee foundation was the finding as to misconduct, then the order was punitive. The termination order was quashed, even though the employee participated therein because the statutory procedure for a regular departmental inquiry was not followed. Emphasis was again made on the purpose of the inquiry . The distinction between the earlier case and this case was that while in Ram Narayan Das' Case, the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ima facia case was made cut to start a regular departmental inquiry. The question was whether a termination order passed soon after the completion of the preliminary inquiry could be treated as punitive. Wanchoo, J. (as he then was) held that it could not be as held. Once the preliminary inquiry was over, it was open to the employer not to make a regular inquiry for proving the quilt of the employee. The employer could stop at that stage and pass a simple order of termination. The facts as gathered or revealed in the preliminary inquiry would be the motive and not the 'foundation' since there was no inquiry as to their correctness made. The order could not be quashed as being punitive. We finally come to the seven Judge Judgment rendered in Samsher Singh vs. State of Punjab [1974 (2) SCC 831] to which we made a brief reference at the beginning of this Judgment. The case concerned two Judicial Officers. So far as the termination order passed against Sri Ishwar Chand Aggarwal was concerned, it was quashed holding it to be punitive as it was based on the report of an Inquiry Officer appointed by the Director of Vigilance. The Inquiry Officer recorded statements of witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as follows (at page 616-617): 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 psygnic by terminological cover-ups or by appeal to psycnic 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 if 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, it 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 proceedings from the formal order does not detract from is nature. Nor the fact that, after being satisfied of the quilt, the master abandons the enquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of determining the true character of termination. If on a reading of the two together, the Court reached the conclusion that the alleged finding of misconduct was the cause or basis of the order, and that but for the report containing such a finding, the order would not and could not have been passed, the termination order would have to fall to the ground as having been passed without the officer being afforded a reasonable opportunity. It was also held that it was wrong to presume that an order would be punitive only if a regular inquiry was conducted exparte or behind the back of the officer. Even if it was not a regular inquiry, any other inquiry where evidence was taken and findings were arrived behind the back of the officer, would make the subsequent termination bad. Vankataramiah, J. (as he then was) pointed out in the above case the shift in the law as brought about by Samsher Singh's case. So far as Triveni Shankar Saxena vs. State of U.P. [1992 Suppl. (1) SCC 524] and State of U.P. vs. Prem Lata Motors, [1994 (4) SCC 189], relied upon by the High Court are concerned, in the former case, the termination order was a simple order which did not cast any st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not preceded with, there were no sittings of any inquiry officer, no evidence recorded and no conclusion arrived at in the inquiry. The underlined words are very important and demarcate the line of distinction. If the inquiry officer held no sittings, did not take evidence nor record any conclusions and if at that stage the inquiry was dropped and a simple order of termination was, passed, the same would not be punitive. In Nepali Singh vs. State of U.P. (1988 (3) SCC 370) a three Judge Bench held the order to be punitive as it was passed after issuing a charge memo, a reply received, even though no evidence was adduced and no findings were given. But in a latter three Judge Bench case in State of U.P. vs. Kaushal Kishore Shukla, [1991 (1) SCC 691], Nepali Singh's case was not followed as being a judgment rendered per incuriam as it did not consider Champak Lal's case (AIR 1964 SC 1854). Of course, the above case, i.e. Kaushal Kishore Shukla's case was one where there was an adverse entry and only a preliminary report and then a simple order of termination was issued. That order was upheld. Similarly, in Commission of Food Civil Supply vs. P.C. Saxena [1994 (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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