ORDER
1. The writ petition is filed to quash the orders of termination issued by the respondent company on 4th October, 1982.
2. The petitioner was selected and appointed by the respondent as Medical Officer on 18th September, 1980. As per the said order of appointment, the petitioner will be on probation for a period of one year and during the period of probation his services will be terminable by one month's notice on either side and on confirmation he will be required to enter into an agreement to serve the company for a period of five years from the date of confirmation, and the order further recites that the company reserves the right to terminate the contract by giving him three months notice or three months pay in lieu of notice without assigning any reason. On 30th October, 1981 the Personnel Officer addressed a letter to the superintendent, Area Hospital, Bellampalli where the petitioner was working proposing the confirmation and also requiring the necessary agreement to be taken on a stamp paper. The petitioner averred in the affidavit that he purchased the necessary stamp papers and submitted to the authorities on 15th November, 1981, and nothing required to be done on his part. Thereafter the impugned order was passed on 4th October, 1982 which is in these terms :
The Singareni Collieries Company Limited Dated 4th and 5th October, 1982.Registered Office,Kothagudem Collieries - 507101.Bhadrachalam Road Station,S.C. Rly.Ref. No. C/2027,Dr. V. Raghu Ram,Medical Officer,Area Hospital,Bellampalli.Through E.D. BPA It is regretted that your service are no longer required by the company. Your services stand terminated on and from 8th October, 1982.2. You will be relived of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1988 dated 18th September, 1980. 3. Controller of Accounts (F & A), BPA is being advised to settle your accounts with the company. (Sd.)x x x for Chairman & Managing Director
3. The petitioner challenges the said order on the ground that his services were terminated by way of punishment and taking disciplinary action against him and the impugned order is violative of the principles of natural justice and also Rule 11 of the Conduct and Disciplinary Rules relating to the company which requires an opportunity to be given to the employee and consequently the impugned order is liable to be set aside.
4. In the counter-affidavit filed by the company it is stated that by virtue of the powers given to them under the order dated 4th October, 1982 they terminated the services of the petitioner and he has not become a permanent employee as the necessary agreement was not executed between the parties. It is also averred that the conduct of the petitioner during his service was not satisfactory and he became drug addict and has been indulging in activities which are commonly expected from drug addicts. He used to take pathedrine injections and other sedatives. It is also urged that on 29th June, 1982 he attempted to commit suicide and was therefore admitted into Bellampalli Hospital at 10.45 p.m. as an inpatient. A case was also registered as MLC 374 and treatment was given to him and consequently it was averred that 'in view of the above behavior it was found that continuance of the petitioner in service is absolutely not desirable and was felt to prove dangerous to the patients attending the hospital and thus unfit to continue as Doctor and therefore his services were terminated on 4th October, 1982. It was by way of abundant caution, three months salary was paid in lieu of notice even though that was not required.
5. No doubt the respondent is a Government Company and it cannot be disputed that this Court can exercise the powers under Art. 226 of the Constitution of India. A contention was raised in the counter-affidavit that no writ petition lies against the impugned order but the respondent's counsel fairly did not press this point during his arguments.
6. The short question to be examined is whether this order of termination is based on misconduct as a disciplinary measure or passed in exercise of the powers of terminating the service without any stigma attached to the service.
7. In order to find out the nature of order the terms employed in the order are not final. The Court can see the surrounding circumstances to find out whether the impugned order was passed as a measure of punishment. As laid down by the Supreme Court in state of Bihar v. S. B. Misra [1970-II L.L.J. 440] the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order and the form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct.
8. The above test is not easy to apply. The Court has to examine the record and it is fairly settled that the test is whether there is any material or circumstances brought on record by the petitioner to show that the apparent state of things may not be state of things and the apparently innocent or innocuous order of termination simpliciter may in reality be by way of punishment and the Court should not hesitate to call for and delve into the official records to unveil the apparent innocuity of the order and quash if, it is found to have been made by way of punishment without complying with the rules of natural justice and if the petitioner is civil servant without complying with the provisions of Art 311 of the Constitution of India. Apart from the assertion of the petitioner and the denial of the respondent that the impugned order is by way of punishment or not we have got the statement of of the respondent in the counter-affidavit regarding the conduct of the petitioner which is already extracted in extenso. The statement in the counter-affidavit clearly shows that the impugned order is made as a measure of punishment and the misconduct is not a mere motive but the very foundation of the order.
9. In N. Yellaiah Swamy v. The Director of Industries and Commerce (1971 (2) An. W.R. 183) a Bench of this Court took into account the statement in a counter-affidavit as a point to the same conclusion' to find out whether the conduct of the party is only a motive or the foundation for the action. In Debesh Chandra v. Union of India : [1970]1SCR220 it was held that the allegations in the counter were taken into account holding that 'if any doubt remained it is cleared by the affidavit which is now filed' in view of the statement that the performance of the petitioner did not come to the standard expected of a secretary of the Government of India'. The averments in the counter-affidavit puts the matter beyond controversy as the impugned order was taken as a measure of punishment and hence I am clearly of the opinion that without giving an opportunity and without following the minimum rules of natural justice the services of the petitioner cannot be terminated. The finding is sufficient to dispose of this case. But the learned counsel argued the other question also and hence I have to examine it also.
10. The petitioner completed the one year period of probation. The rule does not specifically say that orders must be issued confirming the service. No doubt the order of appointment says that on confirmation he will be required to execute an agreement to serve the company for a period of five years. One month's notice if sufficient to terminate service during the period of probation but three months notice is necessary after the probation is completed. In view of the completion of the period of probation the respondent treated the petitioner as one who has become a regular employee and issued notice directing payment of three months salary. Once the petitioner has completed his probation he gets a right to the post and his termination of service prima facie constitutes punishment and necessary procedure of giving an opportunity must be followed.
11. Further as held by the Supreme Court in P. L. Dhingra v. Union of India [1958 - I.L.L.J. 544] 'Where a person is appointed to a temporary post for a fixed term says five years, his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311(2) of the Constitution. The premature termination of the service of the servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Art. 311(2) of the Constitution'.
12. Even on the construction of the order of appointment which provides for premature termination which provides for premature termination before the period fixed has expired, by giving to the petitioner three months notice or three months pay in lieu of notice without assigning any reason, was not complied with and hence the proceedings are vitiated. Admittedly three months notice was not given but a direction for payment of three months salary in lieu of notice was given. Now it is fairly settled that in order to enable the management to exercise the alternative mode of termination the management must pay the salary for the three months actually on the date of termination and a mere direction to pay or receive the amount is not sufficient compliance. The Supreme Court in Senior-Superintendent, R. M. S. v. K. V. Gopinath [1972 - I.L.L.J. 486] on the construction of proviso Rule 5 of the Central Service (Temporary Service) Rule of 1965 held that 'if the Government chooses to terminate the service at any time it can do so forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate he was drawing them immediately before the termination of his services'. Again in Raj Kumar v. Union of India [1970 - I.L.L.J. 13] the same principle is reiterated holding that there is no merit in the contention that it would be impossible for the authorities to give effect to the proviso if payment was made simultaneously with the service on the employee of the order of termination and thus emphasising the need of following the method of termination by paying the amount actually into the hands of the employee if the alternative mode of termination forthwith was adopted without giving notice for the prescribed period. These cases were reviewed in J. N. Sarkary v. Zonal Manager (1978(1) SLR 471) holding that on the construction of Regulation 22 of Food Corporation of India (Staff) Regulations, 1976 holding that for the compliance of the said regulation it is necessary that the payment of pay and allowance shall be made simultaneously with the termination. In that case the petitioner was paid only salary but not allowances and hence it is held that unless both pay and allowances are paid together there is a violation of the said Regulation and the impugned order was quashed. Following the above principle, I hold that the termination order is also contrary to the terms of appointment and consequently vitiated. The cases cited by the respondent are not close to the point now raised.
13. For the foregoing reasons, I hold that the impugned order is liable to be set aside and I allow the writ petition. I make no order as to costs.