Delhi Development Authority and Others Vs Surinder Pal Jain

K.S. Gupta, J.@mdashThis appeal is directed against the judgment dated 13th May, 1998 of the learned Single Judge setting aside the order of termination of the services of the respondent/writ petitioner and holding him entitled to back wages w.e.f. 5th March, 1993 with continuity in service from 1968 for the purpose of promotion.

2. Respondent was appointed as work assistant against a temporary post in the DDA/appellant No. 1 in December 1968 and was thereafter promoted as Junior Engineer (Civil) on 5th September, 1969. As a result of the respondent''s detention in police custody for a period exceeding 48 hours w.e.f. 26th July, 1976 in case FIR No. 313 dated 20th July, 1976 u/s 302 IPC, P.S. Hauz Khas, he was placed under suspension by the Vice Chairman, appellant No. 2 vide Estt. Order No. 1983 dated 23rd September, 1976 (Annexure P-1). Later on services of the respondent were terminated by appellant No. 2 under sub-rule (i) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 as extended to the employees of appellant No.1/Authority vide Estt. Order No. 2675 dated 6th December, 1976 (Annexure P-2). In session case No. 106/76 arising out of the said FIR, the respondent was acquitted to the charge under Sections 302/203 IPC on 26th September, 1977 by an Additional Session Judge, Delhi. Present writ petition seeking to quash of the aforesaid orders dated 26th September, 1976 and 6th December, 1976 and reinstatement in service with back date came to be filed by the respondent on 19th December, 1978. In the meantime, state filed appeal against the order of acquittal of the respondent and the same was allowed by the judgment dated 12th November, 1984 and the respondent was convicted and sentenced for the offences punishable under Sections 302/203 IPC. In criminal Appeal No. 123/85 taken out by the respondent against the said judgment the Supreme Court set aside the judgment of the High Court convicting him of the offences under Sections 302/203 IPC by the judgment dated 5th March, 1993. Order under appeal came to be passed after the respondent was acquitted by the Supreme Court.

3. Estt. Order No.1985 dated 23rd September, 1976 (Annexure P-1) passed by the Vice Chairman/appellant No. 2 which is relevant reads as under:-

"Whereas a case against Shri Surinder Pal Jain, Junior Engineer, in respect of a criminal offence is under investigation.

AND WHEREAS the said Shri Surinder Pal Jain, Junior Engineer was detained in custody on 26.7.1976 for a period exceeding forty eight hours.

Now Therefore the said Shri Surinder Pal Jain is deemed to have been suspended with effect from the date of detention i.e. the 26th July, 1976 in terms of Sub-Regulation (2) of the Regulation 13 of the Delhi Development Authority (Salaries Allowances, Conditions of Services) Regulations, 1961 and shall remain under suspension until further orders.

It is further ordered that during the period this order shall remain in force, the headquarter of Shri Surinder Pal Jain shall remain Delhi/New Delhi and the said Shri Surinder Pal Jain shall not leave the head quarter, without obtaining the prior permission of the undersigned.

Orders regarding the subsistence allowance admissible to him during the period of his suspension will be issued separately."

4. Estt. Order No. 2675 dated 6th December, 1976 also passed by appellant No. 2 (Annexure P-2) which too is material runs thus:

"In pursuance of provision to sub-rule (i) of Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965 as ex- tended to the employees of the Authority vide Regulation 6 of the Delhi Development Authority (Salaries, Allowances and Conditions of Service) Regulation, 1961, I hereby terminate forthwith the services of Shri Surinder Pal Jain JE (Civil) and direct that he shall be paid a sum equivalent to the amount of pay and allowances for a period of one month (in lieu) of period of notice) calculated at the rate at which he was being paid immediately before the date of issue of this order."

5. Submission advanced by Sh. Ravinder Sethi, Sr. Advocate appearing for the appellants was that appellant No. 2 had a right to terminate the services of a temporary employee under Rule 5(i) of the Central Civil Services (Temporary Service) Rules, 1965 as extended to the employees of the appellant No. 1-Authority and as the innocuous order dated 6th December, 1976 terminating the services of the respondent is not punitive in nature the learned Single Judge acted erroneously in setting aside that order in terms of the order under appeal. In support of this submission, reliance was placed on the decision in Union of India v. R.S. Dhaba , Union of India & Others Vs. Bihari Lal Sidhana, 1997 LAB.I.C. 2077, Hukam Chand Khundia Vs. Chandigarh Administration and Another, , and G. Brahmayya and Others Vs. Ala Venkaterao and Others, .

6. We shall refer to the aforesaid decisions at the appropriate place.

7. The leading case on the subject rendered by a Constitution Bench in Parshotam Lal Dhingra Vs. Union of India (UOI), . In that case principles regarding termination of services of a probationer were stated and those principles have been referred to in most of the decided cases subsequently. The principles laid down in the said case were summarised by a Constitution Bench in a letter case in The State of Bihar Vs. Gopi Kishore Prasad, thus:-

"1. Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated without taking recourse to the proceeding laid down in the relevant rules for dismissing a public servant, or removing him from service.

2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, Therefore, no punishment.

3. But, if instead of terminating such a person''s service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art. 311(2) of the Constitution.

4. In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Art. 311(2) of the Constitution and will, Therefore, be liable to be struck down.

5. But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency or some such cause."

8. In Gopi Kishore Prasad''s case (supra), the termination of the probationer was set aside by the Supreme Court observing as under:-

"It is true that, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in that direct way, without casting any aspersions on his honesty or competence his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, Therefore, have no grievance to ventilate in any court. Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist upon the protection of Art. 311(2) of the Constitution."

9. Another Bench of the Supreme Court in the decision in The State of Orissa and Another Vs. Ram Narayan Das, , allowed the appeal of the State and dismissed the writ petition holding that the respondent had no right to hold the post and under the terms of the employment he could be discharged in the manner provided under Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules. Adverting to the third proposition set out above in Gopi Kishore Prasad''s case (supra) it was observed that "This proposition, in our judgment, does not derogate from the principle of the other cases relating to termination of employment of probationers decided by this Court nor is it inconsistent with what we have observed earlier. The enquiry against the respondent was for ascertaining whether he was fit to be confirmed. An order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed is not of that nature." It was further pointed out that in Gopi Kishore Prasad''s case the enquiry officer found that the public servant was ''unsuitable'' for the post and, Therefore, it was rightly held to be punitive.

10. In the decision in Madan Gopal Vs. State of Punjab, which was a case of temporary employment, another Constitution Bench of the Supreme Court referring to the third proposition extracted above in Gopi Kishore Prasad''s case (supra) held that on principle there was no difference between the cases of probationers and temporary servants. In that case the enquiry in which the employee participated, the Settlement Officer reported against him, and Therefore, the order was held to be liable to be quashed.

11. The matter again came up before yet another Constitution Bench of the Supreme Court in Jagdish Mitter Vs. The Union of India (UOI), . It was a case of a temporary employee. The discharge of the temporary employee was by way of an order simplicity. There was an order stating that it was found undesirable to retain him in Government service. The order was held to be by way of punishment. It was observed that "It is obvious that temporary servants or probationers are generally discharged, because they are not found to be competent or suitable for the post they hold. In other words, if a temporary servant or a probationer is found to be satisfactory in his work, efficient or otherwise eligible, it is unlikely that his services would be terminated, and so, before discharging a temporary servant. The authority may have to examine the question about the suitability of the said servant to be continued and acting bona fide in that behalf, the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the servant should be continued or not. There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant, but just to decide whether he deserves to be continued in service or not. If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of Article 311 of the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged. On the other hand, in some cases, the authority may choose to exercise its power to dismiss a temporary servant and that would necessitate a formal departmental enquiry in that behalf. If such a formal departmental enquiry is held, and an order terminating the services of a temporary servant is passed as a result of the finding recorded in the said enquiry, prima facie the termination would amount to the dismissal of the temporary servant.

12. Yet another case in Champaklal Chimanlal Shah Vs. The Union of India (UOI), , rendered by Constitution Bench of the Supreme Court related to a temporary servant. It was held that even if a preliminary enquiry is held to determine whether a prima facie case for formal departmental enquiry is made out, the case does not necessarily come under Article 311. In that case it was found that though the show cause notice for departmental enquiry was given, no departmental enquiry was held. The termination under Rule 5 was held not be punitive attracting applicability of Article 311(2) of the Constitution of India.

13. Principles laid down in the aforesaid Constitution bench cases were explained in greater detail in Seven Judge case in Samsher Singh Vs. State of Punjab and Another, . It was inter alias held in that decision that "The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service max 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 fraction of the provisions of Article 311. In such a case of simplicity of the form of the order will not give any sanctity." Having held so, the order of termination if Ishwar Chand Agarwal, one of the appellants was set aside being illegal.

14. In Gujarat Steel Tubes Ltd., etc. Vs. Gujarat Steel Tubes Mazdoor Sabha & Others AIR 1950 SC 1896, it was stated that there are cases where an employer may have received allegations against an employee and may say to himself that he does not wish to conduct any enquiry but would also not like to continue the employee. In such a case, the allegations are only a ''motive'' but where the employer conducts an enquiry and is satisfied about the allegations and then passes an order of termination it is a case of misconduct being the ''foundation'' of the termination.

15. Let us now turn to the decisions referred to above relied on behalf of the appellants. In K. Balakrishnan Kani''s case (supra), the respondent was employed as a peon in the establishment of Customs Collectorate at Cochin and the post was admittedly temporary. After a couple of months of service, his employment was terminated and the order of termination specifically quoted that the order had been passed under the proviso to Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965. Indisputably, this rule permitted such a termination. There was no indication of any stigma in the order and, Therefore, the appeal was allowed and the impugned order of the High Court was set aside by the Supreme Court.

16. In Hukam Chand Khundia''s case (supra) the petitioner was on probation on a temporary post and order of termination simplicity was made without attaching any stigma against him. His service record was found unsatisfactory. As a matter of fact, on a number of occasions he was found by successive judicial officers to have questionable integrity. Under these circumstances, the Supreme Court did not accept the contention that order of termination in reality was an order of punishment in the cloak of pretence of termination implicate without holding any departmental proceedings in violation of Article 311 of Constitution and the petition was dismissed.

17. In R.S. Dhaba''s case (supra) reversion of the respondent from the position of officiating Income Tax Officer, Class-II to a lower position as Inspector of Income Tax on the ground of his work being unsatisfactory was held to be not tent amount to reduction in rank and thereby not entitling him to the safeguards provided in Article 311 of the Constitution.

18. Facts in Bihari Lal Sidhana''s case (supra) are somewhat identical to the facts of the present case. In that case the respondent was working as a Cash Clerk in Delhi Milk Scheme. When misappropriation of Rs. 17,744.91 on 2nd April, 1972 was discovered, a prosecution was laid against him. While the prosecution was pending, service of the respondent was terminated by an order implicate by the competent authority on 24th April, 1972 under sub-rule (1) of Rule 5 of Central Civil Service (Temporary Service) Rules, 1965. Later on, the respondent was acquitted of the charge in the criminal case. He filed a writ petition seeking reinstatement in service which was disallowed by the learned Single Judge of this Court. However, on appeal the Division Bench reversed that order holding that stigma was attached to the termination of the services of the respondent by mentioning under suspension" in the order dated 24th April, 1972. Allowing the SLP against the Division Bench order filed by the employer i.e. Union of India it was held by the Supreme Court thus:-

"Mere acquittal of Government employee does not automatically entitle the Government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary Government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a Government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money."

19. It would be appropriate to now refer to the stand taken in the matter by the respondent. In short, the respondent''s case is that by the order dated 6th December, 1976 his services were terminated by way of punishment because of his alleged involvement in case FIR No. 313/76, P.S. Hauz Khas and after the judgment of the Supreme Court dated 5th March, 1993 exonerating him of the charge under Sections 302/203 IPC, he is entitled to be reinstated in service with back wages and all consequential reliefs. On CM No. 1041/96 which was allowed by the order dated March 27, 1996, the respondent was permitted to take additional grounds of challenge to the effect that while terminating his services persons, junior to him had been retained in service by appellant No.1/Authority; that only Central Civil Services (Temporary Services) Rules, 1949 were adopted by respondent No.1/Authority but the order dated 6th December, 1976 was made with reference to the Central Civil Services (Temporary Service) Rules, 1965; and that he was not tendered one month''s pay and allowances along with the aforesaid order of termination of services as required by the said Rules of 1949 and thus the order dated 6th December, 1976 is also bad on those counts. As is manifest from the judgment under appeal, the latter two grounds of challenge were not dealt with being unnecessary while disposing of the petition by the learned Single Judge.

20. Sh. G.D. Gupta for the respondent supported the impugned judgment on the grounds that the order dated December 6, 1976 being punitive was passed in violation of the procedure laid down by Article 311 of the Constitution of India and persons Junior to the respondent were retained in service by the Authority while passing the said order. He did not dispute the status of the respondent being temporary in service. Reliance was placed on the decisions in The Manager, Govt. Branch Press & Another Vs. D.B. Belliapa, 1979 (1) SLR 351, State of Uttar Pradesh and Others Vs. Sughar Singh, 1974 (1) SLR 435, Jarnail Singh and Others Vs. State of Punjab and Others, & Anoop Jaiswal Vs. Government of India and Another, .

21. In Anoop Jaiswal''s case (supra) the appellant was selected for appointment in India Police Service and was undergoing training as probationer. He was discharged being unsuitable for being a member of the said service under clause (b) of Rule 12 of India Police Service (Probation) Rules, 1954 by an innocuous order dated 9th November, 1981 by Government of India/respondent. Feeling aggrieved, the appellant filed petition under Article 226 of the Constitution before this court contending that the said order of discharge was vocative of Articles 311(2) & 14 of the Constitution but the petition was dismissed at the stage of admission itself on 30th August, 1982. SLP taken by the appellant against that order was allowed by the Supreme Court with direction to the Government of India to reinstate him in service with the same rank and seniority which he was entitled to before passing of the said order. In that case it was held that the alleged act of misconduct of 22nd June, 1981 was the real foundation for the action taken against the appellant and the case was one which attracted Article 311 of the Constitution of India and as the said order of discharge was made by way of punishment, an enquiry should have been held in accordance with the said constitutional provisions. This decision turned on the facts of that case and has no applicability whatsoever to the facts of the instant case.

22. In Jarnail Singh''s case (supra), the services of the petitioners who were appointed on ad hoc basis as Surveyors in between December 1976 to November 1977, were terminated w.e.f. 31st January, 1981 on the ground that the posts against which they were working were no longer required by the respondent. On consideration of the averments made in the affidavits filed on behalf of both sides it was found by the Apex Court that he said order dated 31st January, 1981 had infect been made on the grounds that there were adverse remarks in the service records of the petitioners as well as there were serious allegations of embezzlement of funds against some of them. So, the Departmental Selection Committee constituted to recommend the petitioners for regularisation of the services as surveyors did not consider them fit for regularisation. On these facts, it was held that the orders of termination of services of the petitioners were really made by way of punishment and without following the mandatory procedure prescribed by Article 311(2) of the Constitution. Obviously, this decision too has no applicability to the facts of the instant case.

23. Ratio in Sughar Singh & D.B. Belliapa''s cases (supra) is that the retention in service of the employees Junior to the writ petitioners while reverting/terminating their services, was in contravention of the provisions of Articles 14 & 16 of the Constitution of India. It deserves to be noticed that in a latter decision of three Judge Bench in State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, , it was held by the Supreme Court that the principle of "last come first go" is applicable to a case where on account of reduction of work or shrinkage of cadre retrenchment takes place and the services of employees are terminated on account of retrenchment. This principles is not applicable to a case where the services of a temporary employee are terminated on suitability in accordance with terms and conditions of his service.

24. At the cost of repetition, it may be stated that the aforementioned order 23rd September, 1976 is a deemed suspension order while the order dated 6th December, 1976 is an order of termination simplicitor. As already noticed, the respondent was acquitted of the offence U/Ss. 302/203 IPC by an Additional Sessions Judge; convicted by the High Court but finally exonerated of the said charges by the Apex Court. The law is not that an order of acquittal automatically entitles an employee to reinstatement in services. On the facts of the present case, accusation in criminal case may be motive or inducement for the termination of the services of the respondent by the aforesaid order dated 6th December, 1976 but it cannot be held to be the foundation for making that order which neither cast any stigma on the respondent nor was preceded by an inquiry whatsoever. Also taking note of the decisions noted above, we are unable to agree with the twin submissions referred to above advanced on behalf of the respondent assailing the validity of the order dated 6th December, 1976. In terms of the said order services of the respondent were terminated validly. We, however, hasten to add that this conclusion is without prejudice to the pleas which are yet to be decided taken by the respondent that the Central Civil Services (Temporary Service) Rules, 1949 and not the Central Civil Services (Temporary Service) Rules, 1965 under which the said order dated 6th December, 1976 was passed, were adopted by appellant No.1/Authority, and that non-tender of one month''s pay and allowances to the respondent as required by the Rules of 1949 along with the aforesaid order rendered the same invalid.

25. For the foregoing discussion, the appeal is accepted and the judgment under appeal is set aside. Case is remanded to the learned Single Judge for decision on the two fold pleas noted in the preceding para of the Judgment. No order as to costs.