S. Rafat Alam and Sudhir Agarwal, JJ.@mdashThis special appeal, under the Rules of the Court, is preferred against the judgment/order of the Hon''ble Single Judge dated 27.7.1999, dismissing Civil Misc,. Writ Petition No. 3869 of 1989 of the petitionerappellant.
2. We have heard learned Counsel for the appellant and the learned Counsel for the respondents.
3. It appears that the petitionerappellant was working as Driver in the respondents'' University on ad hoc basis. It further appears that the ad hoc appointment was made for a period of six months, which was renewed from time to time. However, in respect of certain charges the University decided to hold an enquiry against him. Consequently, he was placed under suspension. Thereafter, it appears that the University, in view of the fact that the petitionerappellant was a temporary employee, did not proceed with the enquiry and revoked the order of suspension and decided to dispense with his services, being a temporary employee. Aggrieved petitionerappellant challenged the impugned order of termination in the aforesaid writ petition which has been dismissed by the Hon''ble Single Judge vide order under appeal.
4. Learned Counsel for the petitionerappellant vehemently contended that the appellant was working as Peon since 1978 and was promoted as Driver vide order dated 4.1.1982 and since then he was continuously working on the said post. He was also allowed various increments, as and when fell due. Therefore, after working on the aforesaid post for such a long time, he could not have been terminated by the order of termination simplicitor passed by the respondents impugned in the writ petition. He further submits that the foundation of the order being alleged misconduct fortified from the fact that the petitionerappellant was also placed under suspension, the order of termination simplicitor, in fact, is a penal order terminating the services of the petitionerappellant by way of punishment without holding any enquiry and therefore, vitiated in law and the Hon''ble Single Judge, having failed to consider this aspect of the matter, has erred in law.
S.We have given anxious thughts to the submissions advanced on behalf of the appellant but find ourselves not in agreement with the same. Admittedly, the petitionerappellant was a temporary employee and at no point of time, was cither confirmed or made permanent on the post of Peon or Driver in the service of the University. The order of termination ex facie also does not cast any stigma, having been caused upon the conduct of the petitionerappellant. The said order is reproduced as under :
6. Whether an order of termination simplicitor is founded on the allegations of misconduct or not, the golden rule is to peruse the order itself and to find out as to whether it caused any stigma or it is founded on some allegations of misconduct and if the order ex facie does not show that it is founded on any alleged misconduct, the Court should not travel beyond the order to find out some ground to make it penal.
7. Instead of burdening this judgment with the catena of decisions, it would be useful to refer a recent judgment of the Hon''ble Apex Court in Mathew P. Thomas V Kerala State Civil Supply Corporation Ltd. and others, (2003) 3 SCC 263, where, after following Dipti Prakash Banerjee, AIR 1999 SC 983 and Pavanendra Narayan Verma, (2002) 1 SCC 520 : JT 2001 (9) SC 420, the Hon''ble Apex Court has observed as under :
"From a long line of decisions it appears to us that whether an order of termination is simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simplicitor falling in one or the other category, based on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of unsuitability to continue in service. If the form and language of the socalled order of termination simplicitor of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simplicitor or punitive. In cases where the services of a probationer are terminated by an order of termination simplicitor and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simplicitor, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simplicitor to find out what in reality is the background and what weighed with the employer to terminate the sendees of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service as he is in reality removed from service on the foundation of his misconduct." (Para 11)
8. In the light of the law as laid down by the Hon''ble Apex Court, we cannot read the order of termination simplicitor passed in the case in hand to find out that it is penal in nature or it is founded on the alleged misconduct of the petitionerappellant.
9. Considering the next submission that once the University decided to initiate disciplinary proceeding and the petitionerappellant having also been placed under suspension, its subsequent decision to revoke the order of suspension and terminating the petitionerappellant demonstrates that the same is founded on the misconduct, is also devoid of merit for the reason that it is always open to the employer, instead of proceeding to hold departmental enquiry, to terminate its employee by an order of termination simplicitor when the employee is temporary. Mere decision to take disciplinary action and thereafter not to proceed further would not make the order of termination simplicitor as founded on the alleged misconduct, since there is no finding that the employees was guilty of misconduct and thereafter the order of termination is passed.
10. The question as to when in such circumstances an order of termination simplicitor can be said to be penal and founded on the misconduct has been considered by the Hon''ble Apex Court in the case of Dipti Prakash Banerjee v. Satyendra Nath Base National Centre for Basic Sciences, Calcutta, AIR 1999 SC 983 and it was held that if the findings were arrived at in inquiry as to misconduct, beyond the back of the Officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded on the allegations" and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was inclined to conduct an enquiry, but at the same time, he did not intend to continue the employee, it would only be a case of motive at best and will not vitiate the order. Similar view has been taken by another Division Bench of this Court in Smt. Radha Tiwari v. State of U.P. and others, (2003) 1UPLBEC395.
11. Recently, the law laid down in Dipti Prakash Banerjee (supra), has been followed by Hon''ble Apex Court in State of Haryana and another v. Satyendra Singh Rathore, JT 2005 (8) SC 192, wherein the Hon''ble Apex Court after referring to the earlier judgment in Paras 9 and 10 observed as under :
"We find that the High Court did not consider the question of stigma or the effect of any enquiry held before the order of termination was passed ITie question whether the enquiry purportedly held provided the motive or the foundation was required to be considered by the High Court in detail. That has not been done. The question whether termination of service is simplicitor or punitive has been examined in several cases e.g., Dhananjay v Chief Executive Officer, Zila Parishad, Jalna and Malhew P. Thomas v. Kerala State Civil Supply Corporation Limited and others. An order of termination simplicitor passed during the period of probation has 6een generating undying derjak Tne recent two decisions of this Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Pavanendra Narayan Verma v. Sanjay Gandhi Post Graduate Institute of Medical Sciences, after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simplicitor and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period of probation. The learned Counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Dipti Prakash Banerjee (supra), after referring to various decisions it was indicated as to when a simple order of termination is to be treated as "founded" on the allegations of misconduct and when complaints could be only as a motive for passing such a simple order of termination. In Para 21 of the said judgment a distinction is explained thus :
"If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid. From a long line of decisions it appears to us that whether an order of termination is simplicitor or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simplicitor falling in one or the other category, based on misconduct as foundation for passing the order of termination simplicitor or on motive on the ground of unsuitability to continue in service." (Para 9)
"When the factual scenario of the present case is considered in the background of legal principles set out above, the inevitable conclusion is that the High Court was not justified in interfering with the order of termination." (Para 10)
12. A Division Bench in Lalmani Maurya v. Public Service Commission and another, Special Appeal No. 24 of 2006 (Defective), decided on 13.1.2006 has also taken a similar view following Dipti Prakash Banerjee (supra), State of Haryana and another v. Satyender Singh Rathore (supra).
13. However, learned Counsel for the petitionerappellant placed reliance on a learned Single Judge judgment of this Court in Rajesh lal Srivastava v. Banaras Hindu University, Varanasi, 2005 All LJ 3631, in support of his contention that after serving for a long time the employee should not have been terminated by an order of termination simplicitor.
14. In our view, the aforesaid judgment is wholly misplaced and has no application to the facts of the case in hand. In Rajesh lal Srivastava (supra), the basic issue was regarding regularisation of an employee working in a time bound project, which subsequently merged in regular cadre of the University. The question was whether relaxing the requirement of age the said person ought to have been considered for regularisation or not. The aforesaid judgment nowhere helps the petitionerappellant in order to find out as to whether an order of termination simplicitor could have been passed by the employer in the facts and circumstances of the case as are available in the present appeal. We are, therefore, clearly'' of the view that the aforesaid judgment does not support the petitionerappellant.
15. In view of the aforesaid discussions, this appeal is devoid of merit. It is, accordingly, dismissed. However, there shall be no order as to costs.
Special appeal dismissed.
