B.L. Loomba, J.@mdashThrough this writ petition validity of the Judgment and order of the U.P. Public Services Tribunal, dated 171982, has been challenged whereby the claim petition of Ram Ghulam, opposite party, was allowed and the order dated 351987, of termination of his services passed by the Divisional Forest Officer, Avadh Division, Lucknow was quashed and it was directed that he shall be deemed to continue on his post, entitled to all the benefit as if the said order of termination had not existed.
2. Factual position is more or less undisputed. Ram Ghulam was appointed as Forest Guard, a class IV Post, under order dated February 15, 1974, the nature of appointment was temporary, liable to be terminated on one month''s notice. The termination order dated 3151987, Annexure 2 to the writ petition, was a simpliciter order mentioning that his services were not required any further and he was entitled to one month''s salary in lieu of notice. Before the Services Tribunal the challenge was based particularly on the ground that the impugned order was punitive in nature as having been passed because of a complaint that he was responsible for the illegal felling of trees and it was after some inquiry that the order of termination was passed and that this inquiry was not a formal inquiry having been held without affording him any opportunity. The claim petition before the Services Tribunal was contested with the plea that the performance of Ram Ghulam was on the whole unsatisfactory and further that a combing operation and court down of the stems was done in the presence of Ram Ghulam in which it was found that illicit felling of the trees had been done and that by itself was sufficient to characterise the services and performance of the respondent unsatisfactory. It was also pleaded that since the respondent was present during the combing operations and court down of the stems of the trees, that afforded sufficient opportunity to him as regards his alleged misconduct or responsibility of the respondent in the matter of alleged felling of trees.
3. Before the Services Tribunal, the relevant service record of the respondent was produced. On perusal of the service record, learned Tribunal found that the respondent came in service on 121974. There was no adverse entry in the years 197475, 197576. In the year 197677 an adverse entry was recorded to mention that he had little control over his beat and he was incapable of doing Forest work. Entry for the year 197778 was also adverse providing that large scale illicit felling of trees was conducted in his beat. This entry is dated 3151977. Integrity certificate was also withheld for the year 1976 77. According to the judgment of the learned Tribunal, there was nothing in the character roll to show that the adverse entries for the year 197677 and 197778 were ever communicated to the respondent. This is what has been clearly affirmed in the counteraffidavit filed by the respondent. No doubt, there is denial of this assertion but a mere denial is hardly of any consequence when it has been stated by the respondent in clear terms that the adverse entries for the years 197677 and 197778 were never communicated to him. This was also found by the learned Tribunal on the basis of the service record which was produced by him. Service record, normally, contains an endorsement as to the communication of the adverse entries to the Government official concerned. Moreover, it was open to the petitioner to show that both these entries or any one of them had actually been communicated to the respondent. This having not been done, the finding of fact recorded by the Services Tribunal that the adverse entries in the last two years were not communicated will require to be accepted.
4. The principle of law well settled is that uncommunicated adverse entries cannot be taken into account for the purposes of awarding any punishment. Learned Standing Counsel appearing for the petitioner, the State of Uttar Pradesh, however, submits that for purposes of evaluation of the work and conduct of a Government servant even the uncommunicated entries can be taken into consideration. In support of this proposition, be could not place reliance on any decision. As against this, learned counsel for the respondent has placed reliance upon a decision of this court in State of U.P. v. U.P. Public Services Tribunal and another (1982 U.P. Services Cases, 450). That was a case where an order of termination was simpliciter and sought to be supported on the basis that the official concerned had earned adverse entries in the character roll in three successive years. It was found that two of these entries were communicated only a fortnight before the impugned order and the third one a month after the passing of the termination order. It was held that under Government orders and Government Services Manual, the affected employee was entitled to make representation against those entries. Since no opportunity for filing such representation was afforded to him, the entry could not be relied upon to infer the unsuitability of the employee for being retained in service and no action could be based on such adverse entries.
5. Learned Standing Counsel next submitted that an informal inquiry was made against the respondent in regard to the serious complaint of his misconduct relating to illegal felling of trees and on physical verification in the combing operations, this complaint was found to be correct when the respondent was present at the time of the physical verification and this by itself provided enough material to show that the work and performance of the respondent was unsatisfactory and he was thus rightly found to be unsuitable for his continuance in Government Service. This matter has two aspects, firstly, that this material appears to have been made a basis for adverse entry for the year 197778 and the adverse entry having not been communicated to the respondent, the same could not be taken into account for adjudging the unsuitability of the respondent for Government Service and, secondly, that no material was produced before the Services Tribunal, apart from the two adverse entries, to satisfy the Tribunal that the work and performance of the respondent was unsatisfactory and that he was on that basis unsuitable for retention in Government Service.
6. In this situation, the finding recorded by the learned Tribunal as to the presence of the adverse material against the respondent for adjudging him as unsuitable cannot be held to be erroneous and liable to be assailed as unjustified or improper.
7. Learned counsel for the respondent submits that the complaint and the socalled informal inquiry was, in fact, the foundation for the impugned order of termination and it is legally necessary to lift the veil and record a conclusion to that effect. In support of the submission, reliance has been placed on the decision of Hon''ble Supreme Court in Jarnail Singh v. State of Punjab (1986 Labour and Industrial Cases, Vol. 19, Part II, 1086) wherein it was held that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination was simplicitier. It is the substance of the order, that is, the attending circumstances as well as the basis of the order that has to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched 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. The latest decision of the Hon''ble Supreme Court in Harpal Singh v. State of U.P. (1988 U.P. Local Bodies and Educational Cases, 213) has also been cited. That was a case of a temporary employee and order of termination was simpliciter without stigma. It was observed that law is well settled by catena of decisions of the Court that even if the adverse order is innocuous and does not show any element of stigma, the Court has jurisdiction to peer below to find out what exactly is the foundation of the order. It was also observed that law is equally settled that if an innocuous order is grounded upon features with stigma against the affected officer, he was entitled to defend himself in a proceeding provided under the Rules applicable to him. It has been found as a fact that in this case, there was no adverse material which could legally be taken into consideration to justify the conclusion that the respondent was unsuitable for retention in Government Service on the basis of his overall work and performance. It also appears that the complaint about the alleged misconduct of the respondent relating to illegal felling of trees was the real basis for order of termination. Accordingly, the judgment and order of the learned Services Tribunal, to my mind, does not suffer from any illegality. The writ petition lacks merit and is liable to be dismissed. It may be observed that it would be open to the Department to take disciplinary proceedings against the respondent in regard to his alleged misconduct in the matter of illegal felling of trees.
8. With these observations, the writ petition is dismissed. No order as to costs.
(Petition dismissed)
