S.K. Jha and S.K. Chaudhuri, JJ.@mdashThese two applications involve the same vexed question, although-in our view-on settled principles, of determining whether, on the facts and in the circumstances of these cases, the termination of petitioners'' services can be said to be by way of punishment or termination simpliciter under the terms of contract of employment. If it be held that it is by way of punishment, the writ petitions under Articles 226 and 227 of the Constitution of India are bound to succeed. On the contrary, if the petitioners have been thrown out merely under the contract of service, they must fail.
2. Common points on similar set of facts are involved in these writ applications. Therefore, the judgment of C.W.J.C. 2314 of 1979 shall also decide the fate of C.W.J.C. 2989 of 1979. Hence, we proceed to deal with the case of Subhash Chandra Choudhury, the petitioner in C.W.J.C. 2314/79, first.
3. Before dealing with the points involved in this application, it is only necessary and proper that the relevant facts be stated at the outset,
4. C.W.J.C. 2314/79 : The petitioner feels aggrieved by order No. 464 W/C dated 17-7-79 passed by the Managing Director (respondent 3) of the Bihar State Warehousing Corporation, Patna (hereinafter to be referred to as the Corporation), respondent 1, contained in memo No. 2794 dated 17-7-79, by which the petitioner''s service has been terminated with effect from the afternoon of 17-7-79. A copy of the impugned memo containing the order terminating his service is marked Annexure 1 to the writ application. The petitioner was admittedly appointed as an Assistant under the Corporation on 16-10-69, a copy of his appointment letter being marked Annexure 3. The petitioner, accordingly admittedly again, falls within the category of Class II employee of the Corporation.
Before proceeding with the further naration of facts some cobwebs in the mind of learned Counsel for both the parties have to be cleared. Mr. Prabha Shankar Mishra, learned Counsel for the petitioner, and Mr. Jai Narayan, learned Counsel for the respondents, both proceeded upon the assumption that the Corporation was a statutory body set up u/s 18 of the Warehousing Corporations Act, '' 1962 (Act 58 of 1962), a Central Act (hereinafter to be called the Act). But that is not the position, We would have refrained from going into the question had it not been necessary to detain ourselves on this aspect of the matter for testing the validity of the arguments of the learned Counsel for the parties with regard to some statutory regulations which shall be alluded to subsequently at a more appropriate place. The legal position is this. Previously there was a Central Act known as the Agriculture Produce (Development and Warehousing Corporations) Act, 1956 (Act 28 of 1956), (hereinafter to be referred to as the 1956 Act.) Section 28 of the 1956 Act provided for the setting up of State warehousing Corporations. Sub-section (1) of Section 28 empowered the State Government, by notification in the official Gazette and with the approval of the Central warehousing Corporation, to establish a Warehousing Corporation for the State under such name as may be specified in the notification. The Bihar State Warehousing Corporation, respondent No. l, was set up by such a notification, as envisaged u/s 28(l) of the 1956 Act. Sub-section (2) of Section 28 provided that such a State Warehousing Corporation established under Sub-section (1) shall be a body corporate by the name notified under that subsection, having perpetual succession and a common seal, with power to acquire, hold and dispose of property and to contract, and may, by the said name, sue and be sued. The nomenclature given to respondent 1 was in pursuance of the provisions of Sub-section (2) of Section 28 of the 1956 Act. That Act further provided u/s 30 for the Management of a State Warehousing Corporation and set out in Sub-section (l) of Section 30 that the general superintendence and Management of the affairs of a State Warehousing Corporation shall vest in a Board of Directors which shall consist of certain members with which we are not concerned and which has no bearing on the disposal of these cases. Section 53 of the Act, 1956 empowered the Board of Directors (shortly called the Board) to make regulations with the previous sanction of the Central Government by notification in the official gazette to provide for certain matters. That again is not relevant to be set out here. But what has a great amount of relevancy is Section 54 of the 1956 Act which empowered the Warehousing Corporations to make regulations. Sub-section (1) of Section 54 provided that a Warehousing Corporation may, with pievious sanction of the appropriate Government, namely, the State Government for the present purpose) by notification in the official gazette, make regulations not inconsistent with the provisions of the said Act and the rules made thereunder, to provide for all matters for which provision is necessary or expedient for the purposes of giving effect to the provisions of the Act. Sub-section (2) of Section 54, provided, in particular as usual without prejudice to the generality of the powers under Sub-section (l) to frame such regulations which may, in their turn, provide, inter alia, for "(a) the conditions of service of, and the remuneration payable to, the officers and other employees of a Warehousing Corporation." The State Government, accordingly, in pursuance of the provisions contained in Section 54(1) of the 1956 Act, was pleased to accord sanction to the regulations framed by the Corporation, which were called the Bihar State Warehousing Corporation Staff Regulations, 1958 (hereinafter to be referred to as the 1958 Regulations). These 1958 Regulations contained, inter alia, the manner of recruitment, appointment, promotion, probation, discipline, etc., as also the provisions with regard to termination of service of an employee of the Corporation. The 1958 Regulation admittedly came into force soon after the sanction was accorded in consonance with Sub-section (1) of Section 54 of the 1956 Act, as provided in Regulation 1(2) of the said Regulations. Then Central Act 58 of 1962 named the Warehousing Corporation Act, 1962 (hereinafter referred to as the Act) came into force.
Section 2(k) of the Act defines "State Warehousing Corporation" as meaning "a Warehousing Corporation for a State establishment or deemed to be established under this Act." Section 18 of the Act provides that the State Government may, by notification in the official gazette and with the approval of the Central Warehousing Corporation, establish a Warehousing Corporation for the State under such name as may be specified in the notification [vide Sub-section (1)], and Sub-section (2) of Section 18 lays down that a State Warehousing Corporation established under Sub-section (1) shall be a body corporate by the name notified under that sub-section, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, and to contract, and may, by the said name, sue and be sued. The Corporation (respondent 1) was not set up u/s 18 of the Act. It had already been set up, as noticed above, under the 1956 Act which, however, has been repealed by Section 43(l) of the Act, which says that-
With effect from the date on which the Central Warehousing Corporation is established u/s 3, the Agricultural Produce (Development and Warehousing) Corporation Act, 1956, insofar as it has not been repealed by the National Co-operative Development Corporation Act, 1962 shall stand repealed.
Act 28 of 1956, admittedly, has not been repealed by the National Co-operative Development Corporation Act, 1962 (Act 26 of 1962). Section 43(2) of the Act laying down a non-obstante clause sets out that notwithstanding such a repeal-
(g) a State Warehousing Corporation established for a State under the repealed Act shall be deemed to be the State Warehousing Corporation established for that State under this Act.
By this deeming clause, the Bihar State Warehousing Corporation, respondent 1, came within the definition of the "State Warehousing Corporation "under Section 2(k) as deemed to be established under the Act. Another provision of the Act, which needs to be noticed here, is Clause (d) of Sub-section (2) of Section 43 which says-
anything done or any action taken (including any appointment, nomination, delegation, rule or regulation made) under the repealed Act, shall insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under this Act.
That is how the 1958 Regulations framed u/s 54(l) of the 1956 Act have been saved and are being perpetuated under the provisions of the Act. Since some provisions of the 1958 Regulations will have a bearing upon the decision of these cases, the legislative history had to be traced. That clears the confusion arising in the mind of the learned Counsel for both the parties.
5. To continue the narration of facts, the petitioner having been appointed as an Assistant (admittedly, Class II employee) under respondent 1, by an order dated 16-10-69, continued to hold temporarily a permanent post till the day the impugned order of termination of his service was passed, namely, 17-7-79 that is to say, the petitioner continued to hold a permanent post, although on temporary basis, for nearly 10 years before his service was terminated. The impugned order of termination as already stated at the outset, has been passed by respondent 3 claiming to be the Managing Director of the Corporation. We are deliberately using the term "claiming to be" since the parties are not agreed that respondent 3 validly held the post of the Managing Director as contemplated by Section 20(1)(c) of the Act. One of the points raised on behalf of the petitioner was that the appointment of respondents 3 as a Managing Director having been made without the previous approval of the Central Warehousing Corporation as enjoined by Clause (c) of Sub-section (1) of Section 20, he was not an authority competent to terminate the service of the petitioner. In the view that we propose to take in this case, however, we refrain from going into that question. The prayer for a writ of qua warranto, therefore, was not allowed to be pressed at the hearing of the application by us after the arguments with regard to the nature of termination of petitioner''s service were advanced at length by the learned Counsel for the parties under the terms of appointment of the petitioner, as borne out by Annexure 3, (vide paragraph Clause 4 of the appointment letter):
The appointment is purely temporary and is liable to be terminated at any time without any notice or assigning any reason.
In the impugned order of termination (Annexure 1), it has been stated that the petitioner''s services were being terminated in terms of paragraph 4 of the conditions of appointment (Annexure 3), In paragraph 8 of the writ petition, it has been stated that by office order No. 151 dated 16-10-69, by which the petitioner was also appointed, indicates that by virtue of that order, 12 Assistants were appointed at one and the same time and this petitioner''s name was at serial No. 5. After the appointment of these 12 Assistants many "P.C.D.Os., have been promoted to the post of Assistants and six casual Assistants on daily wages have been appointed in the Corporation. In paragraph 10 of the writ petition, it has been stated that a number of junior Assistants are still working in the Corporation and the petitioner has been removed from service only on the basis of Clause 4 of his appointment letter (Annexure 3), which is violative of the equality clause enshrined in Articles 14 and 16 of the Constitution of India. It may also be noticed, although that has no bearing on the merits of the application, that the petitioner had filed an appeal under a misapprehension before the Chairman on 19-4-1979, which had not been disposed of till the filing of the writ application. The petitioner has asserted that under misapprehension of law he had been advised to file such an appeal as no appeal was provided for in cases where the order of termination was not by way of imposing any penalty. In view of the statement made in paragraph 10 of the writ petition, as aforementioned, that persons junior to the petitioner have been retained and the petitioner''s services have been terminated after he had continuously worked on a permanent post, although temporarily, for about 10 years, attracting the infraction of equality clauses in the Constitution, a counter-affidavit was filed on behalf of the respondents, wherein the stand taken in paragraph 7 was that in respect of the statements made in paragraph 10 of the writ petition the petitioner must be put to strict proof. Although the fact as to whether any person junior to the petitioner had been retained in service or not was within the special knolwedge of respondents, instead of refuting such an assertion in paragraph 10 of the writ petition, all that was said in paragraph 7 of the counter-affidavit was that the petitioner must be put to strict proof of the allegations made in that paragraph of the petition. The further stand taken in paragraph 7 of the counter-affidavit was that that assertion of fact in paragraph 10 of the writ petition was not relevant for the matter in controversy as the petitioner had been removed from service in terms of paragraph 4 of the appointment letter. The petitioner then filed a supplementary affidavit on 14-9-79, in paragraph 6 of which it was stated that in support of the contentions made by the petitioner in paragraphs 8, 9 and 10 of the writ petition the petitioner was annexing Annexure 4 to the supplementary affidavit which would show that the persons junior to the petitioner were still retained in service by the Corporation. A list of 27 persons junior to the petitioner has been furnished in Annexure 4 to the supplementary affidavit filed by the petitioner. When faced with this difficulty in getting over a plea of the petitioner regarding violation of Articles 14 and 16 of the Constitution, the respondents came with a different stand altogether in a rejoinder to the supplementary affidavit filed on 16-10-79. There the respondents have turned a complete somersault over their previous attitude and have stated in paragraph 9 thereof that the petitioner''s service records were not good and that as for back as in September, 1977 the predecessor-in-office of respondent 3 and asked an explanation from the petitioner by memo dated 24-9-77, in regard to certain irregularities found leading to the shortage about 66 matric tonnes of fertilisers in the godown under the control of the petitioners. In support of such an explanation having been called for, the respondents have annexed Anenxure B to the rejoinder of the supplementary affidavit by which the petitioner was called upon to explain, within 3 days of the issuance of that letter dated 24-9-1977, as to how there was a loss of 66-150 metric tonnes of fertilisers in the godown in question. The petitioner replied thereto and furnished his explanation as contained in Annexure B/1 to the rejoinder filed by the respondent to the supplementary affidavit. It has been set out in the respondents rejoinder, as borne out by Annexure C to that rejoinder, that by a letter dated 26-2-1979, the Secretary of the Corporation, under direction, presumably, of the Managing Director had called for further explanation from the petitioner with regard to 10 irregularities found in the functioning and petformance of his duties. Admittedly, the petitioner requested for supply of certain documents to him to enable him to furnish such an explanation. We are saying "admittedly" because in the petitioner''s reply to the rejoinder of the respondents it has been stated in paragraph 6 that instead of supplying to the petitioner the dosuments required for giving an effective reply to Annexure C, the respondents chose to keep silent. This has not been controverted by the respondents. The respondents, perhaps, felt themselves in an unenviable position and chose not to proceed with the matter against the petitioner nor to draw up any formal charge-sheet and start departmental proceeding against him and thereafter resorted to condition (clause/paragraph 4) of the appointment letter and also chose to pass the impugned order merely on the ground that the petitioner''s service was terminable at any time without any notice. In answer to the respondents'' case that there were certain adverse entries in the petitioner''s confidential character roll, the petitioner in his reply has stated categorically that no such adverse remarks were communicated to him at any point of time. This again has not been controverted on behalf of the respondents. On these facts and in these circumstances, we are called upon to decide the question as to whether the termination of petitioner''s service can be termed as termination simpliciter without any element of punishment or it is punitive in nature and by merely taking resort to such a clause as condition No. 4 in the appointment letter the petitioner''s services have been tried to be dispensed with and the petitioner has been tried to be got rid of by the respondents without taking recourse to the provision of Regulation 21 of the 1958 Regulations to which we shall advert a little later.
6. Learned Counsel for the parties were at loggerheads with regard to the true nature of the termination of service in view of the principles enunciated in numerous decisions of the Supreme Court on this point. On the one hand Mr. Prabha Sankar Mishra has contended that if it be a termination simpliciter, it would be violative of the equality clauses in Articles 14 and 16(1) of the Constitution in the sense that persons junior to the petitioner have been retained in service who have not been shown to have any better service record than the petitioner. In the alternative it was argued that if the respondent''s case as sought to be newly made in their rejoinder to the petitioner''s supplementary affidavit, that certain disciplinary proceeding was contemplated to be drawn up against the petitioner and the petitioner was called upon to explain with regard to certain irregularities and misconduct on his part be true then, obviously the substance of the termination is not only removal from service but it also visited the petitioner with adverse civil consequences. In that event, the principles of natural justice as well as the provisions of Regulation 21 of the 1958 Regulations ought to have been followed before the petitioner''s services could have been dispensed with,
7. Before referring to the various decisions of Supreme Court on the point on which learned Counsel for one party or the other has relied, it would be necessary and proper to mention here that in the 1959 Regulations there are two provisions under which the services of an employee of a Corporation can be terminated. They are set out in Regulations 12 and 21 of the 1958 Regulations. On the other hand while, Mr. Jai Narain, learned Counsel for the respondents, argued that it was a termination of the service under the provisions of Regulation 12, on the other, learned Counsel for the petitioner urged that Regulation 12, has no application to the facts of this case and it would be a case which was clearly covered by Regulation 21. We may dispose of this aspect of the matter before delving into the case law with regard to the nature of termination of the petitioner''s service. Regulation 12 of the 1958 Regulations reads thus:
12. Termination of Service:
(1) The service of an employee of any class, who, is on probation may be terminated at any time giving him one month''s notice or pay in lieu thereof.
Provided that such notice shall not be necessary in the case of a temporary employee of class III whose service is terminable without such notice by the terms and conditions of his appointment.
(2) The Board of Directors may terminate the services of an employee of class I after the expiry of the period of his probation by giving him 3 months notice or pay in lieu thereof and of any employee of any other class by giving him 2 months notice or pay in lieu thereof.
(3) In the case of an employee of Class II and Class III the power to terminate his service under Sub-regulations (1) and (2) shall be exercised by the Manging Director (and in the case of any employee of class I by the Board of Directors).
Mr. Jai Narain contended vehemently that the petitioner being an employee of class II under the Corporation was governed by Regulation 12(3) of the 1958 Regulations and respondent 3 was competent to pass an order of termination of his service. This argument cannot be accepted as valid. For, Regulation 12(3) applies to the termination of service of an employee as referable to Sub-regulation (1) and (2) of Regulation 12. Sub-regulation (1) is in respect of an employee who is on probation and so is Sub-regulation (2) referable to termination of service after expiry of the period of probation. On the admitted case of the parties the petitioner was not on probation at all at any time. At the cost of repetition it may be said that the petitioner was a class II employee of the Corporation on a permanent post although holding it temporarily for about 10 years. If Regulation 12 of the 1958 Regulations does not apply then the service of an employee can be terminated, if by way of penalty, only in consonance with the provisions of Regulation 21 which provides inter alia that the penalty of removal or dismissal as contained in Clause (f) or (g) of Sub-regulation (1) of Regulation 21 shall not be imposed on any employee without formal charges being framed against him and without giving him an opportunity for tendering an explanation in writing and cross-examining the witnesses against him, if any, and of producing defence ,provided that any punishment to an employee on deputation from State Government or a Government institution shall be imposed by his parent department in accordance with the procedure and rules laid down in this behalf. We are not concerned with the latter part of clause (iv) of Sub-regulation (2) of Regulation 21 since the petitioner was not an employee on deputation from the State Government or a Government institution.
8. That then brings us to the question whether the termination of petitioner''s service was a termination simpliciter attracting the infraction of Articles 14 and 16 of the Constitution or was by way of penalty attracting the provisions of Regulation 21 of the 1958 Regulation.
9. Indeed to use the language of Mathew, J, in the case of
No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.
And in paragraph 64-
Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is statisfactory or whethere he is suitable for the post. In the a bsence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The. authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other and, the termination is faced with an enquiry on charges of misconduct or inefficiency or corruption ,and if his services are terminated without following the provisions of Article 311(2) he can claim protection.
and again in paragraph 65:
The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment.
In paragraph 66 at page 480 again it has been said by Chief Justice Ray speaking for the Bench that:
If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to attract Article 311. The sub-stance of the order and not the form would be decisive.
(Italics is ours for the purposes of emphasis) and again in paragraph 67:
An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct.
(italics isours).
These are the major proposition of law enunciated in Samsher Singh''s case (supra) by the Supreme Court. And in spite of that as has been said by Mathew, J., in the case of Sughar Singh (supra) in paragraph 15 at page 266:
Confusion has arisen particularly in respect of cases where this Court has had to deal with orders of Government from the aspect of the motive underlying those orders. What is the weight to be given to motive in deciding whether a particular order is penal in character and, therefore,. falling within the mischief of Article 311 of the Constitution or whether it has been passed for departmental considerations and in exigencies of public service? It is well recognised that very often the motive of a particular order of Government and the language and terms of the order itself are not in harmony. In many cases though Government take action under the terms of a contract of employment or under the specific service rules for the purpose of terminating the service or reducing the rank of an officer, the real motive or inducing factor which influences the Government to take action is different and is connected with some disqualification or inefficiency of the Officer. In other words, Government while pretending to act in terms of the contract of service or service rules, in reality wants to get rid of the officer concerned or to reduce him to a lower rank by way of punishment for his misconduct or inefficiency or disqualification. In such a ease the action taken by the Government is in an innocuous form but the real intent of it is penal.
10. In the case of
Whether or not an order of termination is by way of punishment would depend on the facts and circumstances of each case. This well established position has been reiterated by this Court recently in the case of
In the case of Parkash Singh Cheema (supra) in fact the learned Judges were dealing with a case in which an action in a civil Court had been brought by a Government servant against the State of Punjab and the trial Court and the first appellate Court had both taken the view that the order of termination was by way of punishment although in form it was innocuous. Learned Counsel for the petitioner also pressed into service the decision of the Supreme Court in
11. What we want to emphasis is this. If adverse civil consequences like loss of pension, gratuity, etc., which have already been earned by an employee, follow then ipso jure it would amount to punishment. That principle cannot be invoked in the instant case.
12. Petitioner''s counsel also vehemently relied on a recent decision of the Supreme Court in
13. From the gamut of case law pressed upon our attention by respective counsel for the parties, the principles which we can well deduce are these:
(i) A temporary employee''s service can be dispensed with under the terms of contract of employment although his juniors may be retained if it can be shown that the juniors were not similarly placed as the person whose service has been dispensed with on account of misconduct or inefficiency or since he was standing as a class by himself.
(ii) In such cases (as above), however, it would be incumbent upon the authority to satisfy the Court that persons junior to the person, whose services have been terminated, do not stand at par with or have better service record than, the person impugning the order of termination.
(iii) There can be no hard and fast rule nor any abstract proposition of law for the purpose of determining as to whether the order of termination is a termination simpliciter or by way of punishment. It would depend upon the facts and circumstances of each case as to whether it can be deduced that the order of termination is by way of penalty or not.
(iv) The motive behind the order of termination is not always germane or relevant for the purpose of determining as to whether an order innocuous in form can be dubbed as being an order of termination by way of punishment. But the substance and not merely the form of the order is relevant.
14. These being the well established principles of law, we have to test the legality and validity of the impugned order of termination of petitioner''s service from two angles : (1) as to whether the order of termination of the petitioner''s service purportedly under the terms of contract of employment has been passed in violation of equality clauses enshrined in Articles 14 and 16(1) of the Constitution and (2) assuming that there has been no contravention of the equality clauses can it be culled from the materials on record that the impugned order has been passed as a punitive measure against the petitioner in which case it was incumbent on the respondents to have followed the principles of natural justice as also the procedure laid down in Regulation 21(2)(iv) of the 1958 Regulations in which case it was incumbent on the respondents to have followed the principles of natural justice as also the procedure laid down in Regulation 21(2)(iv) of the 1958 Regulations.
15. Having considered the matter in all its ramifications and having given our anxious thought to the materials on record, we are constrained to take the view that the petitioner is entitled to succeed on either or both the scores for the reasons which we shall presently record.
16. As we have already noticed earlier, the petitioner had asserted in paragraph 10 of the writ petition that his juniors have been retained while his services have been disposed with in the purported exercise of powers of respondent 3 under condition/Clause 4 of the terms of contract of the petitioner''s employment, In paragraph 7 of the counter-affidavit when the petitioner was put to strict proof of the statement made in paragraph 10, the petitioner furnished a list of such junior employees in Annexure 4 to his supplementary affidavit then the respondent changed their stand and made out a case that as far back in September, 1977 certain irregularities had been detected for which the petitioner was called upon to explain within 3 days from the receipt of order calling for explanation. The petitioner did explain his position. Thereafter in 1979 sometime in February (the date we have already mentioned above), the petitioner was again called upon to explain quite a number of charges. The petitioner requested to be supplied with copies of certain documents which are not furnished and after keeping silent for a couple of months the impugned order of termination was purported to be passed under the terms of contract of employment. Although in the respondents'' rejoinder to the petitioner''s supplementary affidavit a case has been sought to be made out that the petitioner stands as a class by himself on account of his inefficiency and lack of integrity, it has not been shown to us that any adverse remark in his confidential character roll has been communicated to the petitioner, nor has it been shown to us as to whether any of the juniors who have been retained in service has a better service record than the petitioner. Since no materials with regard to their character rolls were produced before us, we are not in a position to agree with the contentions of the learned Counsel for the respondents that the petitioner stands as a class by himself. In that event the equality clause is contravened and the impugned order is liable to be quashed.
17. Assuming, however, in favour of the respondents, that the petitioner has been singled out as a class by himself on account of insufficiency and lack of integrity then, in the background that that was not the original stand taken by the respondents in the counter-affidavit first filed, they have come out with this case in their rejoinder to the petitioner''s supplementary affidavit that certain charges were framed against the petitioner and the petitioner was called upon to explain the same in 1977. The petitioner did explain. Thereafter in 1979 certain more heads of charges were framed. The petitioner asked for certain documents from the respondents, they chose to remain silent and sought refuge behind the terms of contract of petitioner''s employment. In the background of these facts and circumstances, on the respondents'' admitted case that proceedings were drawn up, charges were served to be explained by the petitioner and he called for certain papers which were not supplied to him the order of termination would amount to an order of a punitive in nature. We are fortified in our view by a recent Supreme Court decision in the case of State of Maharashtra v. Veerappa R. Saboji wherein, on similar facts and circumstances, the Supreme Court held that the order of termination, though ex facie innocuous, was in substance punitive in nature. This judgment was not cited at the Bar by learned Counsel for any of the parties and it has come to our notice after the conclusion of the arguments of all the parties concerned and at the time when this judgment was being delivered. That being so, the petitioner ought to have been given a reasonable opportunity of defending himself and the punishment of termination of service could not have been imposed upon him without formal charges being framed and without giving him an opportunity of tendering his explanation in wrung and the opportunity of cross-examining the witnesses, if any, against him and of producing defence as provided m Sub-regulation (2)(iv) of Regulation 21 of the 1958 Regulations.
18 In either of the views, therefore, the petitioner must succeed and the impugned order of termination as contained m Annexure 1 must be quashed.
19 C.W.J.C. 2989 of 1979 : The facts in the case of Jamuna Ram, the petitioner in CWJC 2980 of 1979, arc similar to those obtaining in the earlier case excepting that the impugned order of termination of his service is dated 11th of August, 1979 and is incorporated in Annexure 2. The other difference is with regard to the date of appointment since the petitioner was appointed as a Class IV employee under the Corporation in the month of September, 1969 and in response to the advertisement for the post of an Assistant the petitioner applied for that post and after due interview was appointed as an Assistant (employee in class II) by an order dated 12-6-71 and he joined his service on 21-6-71, by submitting his joining report along with four other persons. A copy of the said memo dated 21-6-71, containing the office order No. 821 has been annexed as Annexure 1 to the writ petition. All other allegations and counter-allegations are the same. For the reasons given in C.W.J.C. 2314 of 1979, this application also must succeed.
20. In the result, therefore, both these writ applications are allowed and the order of termination of service dated 17-7-79, passed against the petitioner in C.W.J.C. 2314 of 1979 as contained in Annexure 1 to the writ application in question and that dated 11-8-79, as contained in Annexure 2 to the writ petition in C.W.J.C. 2989 of 1979 are hereby quashed. The petitioners of both these writ petitions shall be deemed to have continued in service with all consequential benefits under the law, in spite of the orders of termination of their services. In the circumstances of these cases, however, we shall make no order as to cost.
