Sudhir Agarwal, J.
1. Aggrieved by the judgment dated 2.11.2000 of Hon'ble single Judge dismissing petitioner-appellant's (hereinafter referred to as the 'petitioner') Writ Petition No. 24972 of 1991 this intra Court appeal under the rules of the Court has been preferred by the petitioner. The writ petition was filed challenging the order dated 5.8.1991 whereby the Director, North Central Zone, Cultural Centre, Nyay Marg, Allahabad (hereinafter referred to the 'N.C.Z.C.C.') has terminated petitioner's services giving him one month's salary in lieu of notice.
2. The facts in brief giving rise to the present dispute are that the petitioner was appointed vide order dated 11/16.9.1987 as Stenographer (Hindi) attached to Deputy Director (Admin.) on consolidated pay of Rs. 1,581 per month including all allowances. The aforesaid appointment was purely temporary and terminable at any time without prior notice. On 30.7.1991 the Director, N.C.Z.C.C. published an advertisement in daily Hindi newspaper 'Aaj' inviting application to fill up three posts of Karyakram Sewa and four posts of Prechagrah Sewa. It is said that on 30.7.1991 the petitioner met Ms. Neeru Nanda, the then Director, N.C.Z.C.C. and requested that his brother, Sri Surendra Nath Pandey, a handicapped person, may be appointed against one of the aforesaid vacancies which were advertised but she decline to help the petitioner. The petitioner's brother filed Writ Petition No. 22437 of 1991 challenging the advertisement but the said writ petition was dismissed by this Court vide order dated 2.8.1991 (Annexure 3 to the writ petition). In the meantime the petitioner proceeded on leave up to 8.8.1991 by moving an application on 30.7.1991. On 3.8.1991 a false complaint was lodged before the ' District Magistrate, Allahabad against the petitioner alleging that he appears to be a man of unsound mind and require treatment. On the same date he was called in the office of N.C.Z.C.C. When he reached the office he was handed over to the police. The petitioner was produced before the Chief Medical Officer who referred his case to S.R.N. Hospital, Allahabad. Thereafter, the petitioner was kept in Ward No. 18, Bed No. 40 at S.R.N. Hospital for some time and in the meantime on 5.8.1991 the respondents passed the impugned order of termination. The petitioner further learnt that on 3.8.1991 a First Information Report was lodged at Police Station, Civil Lines, under Section 353, I.P.C. pursuant whereto he was arrested on 3.8.1991 and thereafter on the recommendation of Chief Medical Officer he remained in the hospital from 7.8.1991 to 16.8.1991. Admittedly, on 17.8.1991 Dr. V.K. Singh gave a report certifying that the petitioner was of sound mind and did not suffer any psychiatric illness. The Chief Medical Officer also signed the said report and sent to the City Magistrate, Allahabad.
3. The order of termination was challenged in the writ petition on the ground that it is founded on the alleged false allegations contained in the First Information Report dated 3.8.1991 and, therefore, punitive. It is also alleged that the service of other temporary employees has continued while only the petitioner has singled out and, therefore, the order is violative of Article 14 of the Constitution of India.
4. The Hon'ble single Judge has dismissed the writ petition holding that the termination of petitioner is simplicitor and not founded on any alleged misconduct, therefore, the petitioner is not entitled for any relief.
5. Learned Counsel for the petitioner vehemently contended that the counter-affidavit also revealed that a fact finding inquiry was conducted by the Administrative Officer, N.C.Z.C.C. wherein he submitted a report observing that the petitioner is guilty of alleged misconduct. He also observed that the petitioner is not fit to be retained in service and should be terminated. In the circumstances, considering overall facts and material available, it is evident that in respect to alleged incident of 3.8.1991 not only a first information report lodged against the petitioner but the Director also initiated a fact finding inquiry conducted at the back of the petitioner, wherein the Inquiry Officer found the petitioner guilty and recommended that he is not fit for retention in service. These facts show beyond doubt that the termination of petitioner was founded on the aforesaid incident and is by way of punishment. Since no inquiry was conducted in which any opportunity ought to have been given to the petitioner and, therefore, the impugned order of termination is vitiated in law. The Hon'ble single Judge has erred in taking a different view. Learned Counsel for the petitioner supported his submissions placing reliance on the Apex Court's decision in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. : [1999]1SCR532 ; Nar Singh Pal v. Union of India and Ors. : (2000)ILLJ1388SC ; Chandra Prakash Shahi v. State of U.P. and Ors. : AIR2000SC1816 ; A. P. State Federation of Cooperative Spinning Mills Ltd. and Anr. v. P.V. Swaminathan : (2001)ILLJ1341SC and a Division Bench decision of this Court in Radhey Shyam Gupta v. State of U.P. and Ors. 1991 (1) ESC 314.
6. The stand of respondents, however, is that the facts finding inquiry was only to form an opinion about the work and performance of petitioner and after having the said report instead of proceeding against the petitioner, the respondents decided not to go ahead with a regular inquiry and instead terminated his service since he was a temporary . employee. Accordingly an order of termination simplicitor was passed. It is not a case where it can be said that the impugned order is founded on any alleged misconduct but it has been passed after the overall assessment of work and performance of petitioner, made objectively.
7. We have heard learned Counsels for the parties at great length and perused the record as well as various authorities cited at the bar, and on the subject.
8. The frequently raised issue coming to this Court in the matter of termination simplicitor of a temporary employee or a probationer, is, (a) when an order of termination simplicitor is punitive in nature, founded on any alleged misconduct; and (b) when it can be said to be a case of motive or foundation.
9. Again the same two issues have arisen in this special appeal also and have been argued with vehemence.
10. For the last almost 50 years, the above questions have invoked jurisdiction of this Court as well as the Apex Court very frequently. Despite of a catena of decisions, still the Courts find it, sometimes difficult to decide whether, in the facts and circumstances of a particular case, an order of termination simplicitor is founded on the alleged misconduct or it is only a case of motive. The reason behind it is well understandable. The distinction between the two is very thin and sometimes overlapping. However, this Court, in discharge of its constitutional obligation of dispensation of justice, shall endeavour to find out the distinction between two with the help of various authorities of the Apex Court and High Court on the subject.
11. In Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC , a Constitution Bench of the Apex Court considered the question as to when an order of 'reversion simplicitor' may be said to be penal attracting Article 311 (2) of the Constitution of India necessitating an enquiry preceding such order. An employee working in Class III post was given an officiating appointment on Class II post but on account of certain charges, he was reverted to his substantive post. He challenged the order being punitive and violative of Article 311 (2) of the Constitution. The Court held that in the absence of special contract, a substantive appointment to a permanent post gives the servant, so appointed, a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' of service or the post is abolished or is dismissed or removed by way of punishment after holding enquiry. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure. His tenure cannot be put to an end during the period unless he is, by way of punishment, dismissed or removed from service. Except in these two cases, the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives the servant so appointed, no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service. It further held that Article 310 does not make any distinction between permanent and temporary post. Hon'ble S.R. Das, C.J., speaking for the Bench, summed up the conclusion as under:
(1) A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal.
(2) The termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not a punishment and does not attract Article 311 (2).
(3) It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service, the motive operating on the mind of the Government is wholly irrelevant.
(4) If the termination of service is founded on the right flowing from contract or the service rules then prima facie termination is not a punishment and carries no evil consequences.
(5) Despite of having the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment.
(6) If the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. Termination of service of such a servant on such grounds would be a punishment as it operates as forfeiture of his right. It is visited with evil consequences of loss of pay and allowances etc., puts an indelible stigma on the officer affecting his future career.
12. Mere form of the order using expressions 'terminate', 'discharge' etc., is not conclusive and despite of use of such innocuous expressions, the Court can examine the matter to find out the true nature of the order.
13. The next Constitution Bench decision, considering a similar issue is State of Bihar v. Gopi Kishore Prasad : (1960)ILLJ577SC . The incumbent Gopi Kishroe Prasad was appointed as a temporary Sub-deputy Collector in the year 1944. In 1947, he was appointed to a substantive post in the Bihar Subordinate Civil Service, on probation. While on probation, proceedings were initiated against him. He was called upon to show cause why his services should not be terminated forthwith. The allegations in the show cause were that during the period of 1948 to May, 1949 when he was posted at various places, his reputation continued to be bad and his judicial work after careful scrutiny led to discovery of incredibly perverse decisions given by him. Those proceedings culminated in the order of discharge dated 23.7.1953. Referring to the proceedings, complaining about the corruption and unreliability, as also doubt on his integrity etc., after noticing that the Government found ample material showing that he resorted to corrupt practices justifying his transfer and even thereafter, he was reported to have a doubtful honesty, ultimately the Government, having been satisfied that his working was unsatisfactory, decided to discharge him after consultation with Public Service Commission. The High Court allowed the writ petition holding the said order of 'termination simplicitor' violative of Article 311 (2) as no enquiry was conducted as per the procedure prescribed thereunder. It held that the order of termination amounts to punishment. Following Dhingra's judgment, the Apex Court also held the aforesaid order of 'termination simplicitor' founded on the alleged misconduct, based on an enquiry held behind him and, therefore, violative of Article 311 (2) of the Constitution. It would be useful to refer the following reason for holding the order of termination punitive as stated in para 6 of the judgment:
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 Article 311 (2) of the Constitution.
14. Similar issue again cropped up before a Constitution Bench involving discharge of a probationer Sub-Inspector on the ground of unsatisfactory work and conduct in State of Orissa v. Ram Narayan Das : (1961)ILLJ552SC . Sri Ram Narayan Das was appointed as Sub-Inspector on probation in Orissa Public Service and due to certain adverse reports, he was served with a notice as to why he should not be discharged from service for 'gross neglect of duties and unsatisfactory work'. In the notice, specific instances of neglect of duty were mentioned which included two instances of misconduct, i.e., acceptance of illegal gratification and fabrication of official record. After considering his reply, the D.I.G. passed following order of discharge:
Probationary S. I. Ramanarayan Das of Cuttack District is discharged from service for unsatisfactory work and conduct with effect from the date the order is served on him.
15. Aggrieved, Ram Narayandas filed a writ petition in the Orissa High Court which was allowed and that is how the matter came up before the Apex Court. The manner in which the probationer has to be dealt with was provided under Regulation 668 of Police Manual of Orissa State and Rule 55B of Civil Services (Classification, Control and Appeal) Rules, 1930. The Court observed that being a probationer, he had no right to the post and was liable to be discharged at any time during the period of probation under the terms of his appointment. Meeting the argument that an enquiry preceded the order of discharge rendering it punitive as held by the Apex Court in Gopi Kishore Prasad (supra), the Court explained the test of enquiry and said that one has to look into the object or purpose of the enquiry. Rule 55B itself provided where a probationer is proposed to be terminated for any specific fault or unsuitability, he shall be apprised of such grounds and shall be given an opportunity to show cause whereafter the order of termination shall be passed. The Court held that in case, an enquiry, as contemplated in the rules, is observed, every termination of probationer shall become punitive, which could not have been the intention of the Court in Gopi Kishore Prasad (supra). It was, thus, held that it is the nature of the enquiry, the proceedings taken therein, and the substance of the final order passed on such enquiry, which would show whether the order is punitive or not. If the enquiry is to find out whether the incumbent is fit to be confirmed or retain in service, or to continue, then such an enquiry would not render the termination, punitive, since this kind of enquiry cannot be equated with an enquiry held to find out the correctness of the charges of misconduct, negligence or other disqualification.
16. In Madan Gopal v. State of Punjab : (1964)ILLJ68SC , the Constitution Bench had occasion to consider the same question but in the context of termination of a temporary employee. The order of termination was simplicitor but preceded by a report of the Settlement Officer about the misconduct of the employee and the termination based on the said report. The Court held order to be punitive emphasizing again on the purpose of enquiry. The distinction of the enquiry held in Ram Narayan Das (supra) was highlighted by pointing out that there the enquiry was with a purpose to find out whether the petitioner could be continued or confirmed or not while in Madan Gopal (supra), the enquiry held by the Settlement Officer was to find out whether the employee was guilty of misconduct or not. The Court held that mere form of the order would not be conclusive and the Court can go behind the order looking to the event or the proceedings held in close proximity.
17. In Ranendra Chandra Banerjee v. Union of India : [1964]2SCR135 , which was a case of probationer and an order was passed under Rule 55B of Civil Services (Classification, Control and Appeal) Rules, 1930, the Constitution Bench of the Apex Court held that the order was not punitive since the limited purpose of enquiry was to find out whether the employee should be retained or not following its decision in Gopi Kishore Prasad (supra).
18. The principle of 'object or purpose of enquiry' was again emphasized by the Constitution Bench in Jagdish Mitter v. Union of India : (1964)ILLJ418SC . It was a case of a temporary employee, who was discharged from service by an order simplicitor. The termination was challenged by Sri Jagdish Mitter in a suit on the ground that Posts and Telegraphs General Regulations had been contravened and no enquiry was held against him. The defence on behalf of the Government was that he was a temporary servant and had not become quasi-permanent, hence, can be terminated on a month's notice in terms of his appointment and, therefore, no enquiry is required. The Court held that it is true that a temporary public servant or a probationer is of a precarious character, and can be terminated by a month's notice, without assigning any reason either in terms of his contract or under the relevant statutes. If any enquiry is conducted before such simple discharge about the suitability of the servant for continuing in service, the incident of such an enquiry would not make the simple order of discharge punitive. 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. However, if the employer decides to hold a formal enquiry to record a finding as to the alleged misconduct of the servant, such an order would amount to dismissal of the temporary servant and in such a case, an enquiry giving an opportunity to the delinquent employee to defend himself is necessary. If some formal departmental enquiry commenced but not pursued to the end and instead a simple order of termination is passed the motive operating in the mind of the authority would be immaterial and such an order would not be punitive. In order to find out whether it is a case of motive or foundation, the form of the order would not be decisive and it is the substance of the matter which would determine the character. The real character of the termination of the services must be determined by reference to the material facts that existed prior to the order. It was also observed where a temporary servant attacks his discharge on the ground of mala fide, while defending the plea of mala fide, if the authorities refer to certain facts justifying the order of discharge relating to the misconduct, negligence or inefficiency of the said servant, that would not make the order founded on any misconduct. The Court held that whenever an enquiry is conducted to find out the suitability of a temporary servant or probationer, it would not make the order punitive. The Court in holding the order of termination to be punitive referred to the order of discharge, which mentioned the words 'undesirable to be retained in Government service' and held that it expressly casts a stigma on the appellant and in that sense that order must be an order of dismissal and not simple discharge. The Court held the word 'undesirable' as casting stigma and differentiated it from the words 'it is unnecessary to continue him'. The reason for holding the order punitive, evident from the judgment, is:
As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge.
19. Then came the case of Champaklal Chimanlal Shah v. Union of India : (1964)ILLJ752SC , wherein after holding a preliminary enquiry, the employee was discharged. It was argued that since a fact finding enquiry was conducted with an intention to hold a departmental enquiry if a prima facie case is find out, and therefore, the termination order passed after completion of preliminary enquiry, would render it punitive. Rejecting this contention, the Court held that once a preliminary enquiry is over, it is open to the employer not to proceed with the regular enquiry to prove guilt of the employee and instead to pass a simplicitor order of termination. The employer can stop at any stage. The preliminary enquiry, therefore, at the best can be a motive but not a foundation so as to render the order punitive.
20. In A.G. Benjamin v. Union of India 1967 (I) LLJ 718 (SC), the charge-sheet was issued, explanation was received and Enquiry Officer was appointed but before completion of enquiry, the proceedings were dropped and the incumbent was terminated. The Court held that the order is not punitive.
21. In State of Punjab v. Sukh Raj Bahadur : (1970)ILLJ373SC , a three Judge Bench of the Apex Court decided the question, a simple order of reversion, whether punitive or not. The servant was officiating in Punjab Civil Service, Executive Branch. A charge-sheet was issued to which he submitted reply. The disciplinary enquiry, thereafter, did not proceed and the Government passed an order of reversion after dropping further proceedings. The Court held that the order does not amount to punishment. After referring various earlier authorities from Dhingra (supra) and onwards the Court culled out the following propositions:
(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution;
(2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial;
(3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant;
(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution; and
(5) If there be a full-scale departmental enquiry envisaged by Article 311 i.e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.
22. These principles were followed by the Apex Court in subsequent decisions in Union of India v. R.S. Dhaba : [1971]19ITR143(SC) ; State of Bihar v. Shiva Bhikshuk Mishra : (1970)IILLJ440SC ; R.S. Sial v. State of U.P. : (1974)ILLJ513SC and State of U.P. v. Sughar Singh : (1974)ILLJ260SC .
23. Thereafter, the issue again drew attention of the Apex Court in Shamsher Singh v. State of Punjab : (1974)IILLJ465SC . The matter was considered by a larger Bench of seven Judges of the Apex Court. Hon'ble A. N. Ray, C. J., in his majority judgment, which he delivered for himself and five other Hon'ble Judges, held 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, may, 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 infraction of the provisions of Article 311. In such a case, the simplicity of the form of the order will not give any sanctity. The theory of motive and foundation was reiterated.
24. In State of Punjab v. P.S. Cheema : AIR1975SC1096 , the employee was a temporary Tax Sub-inspector in Excise and Taxation Department. The Vigilance Department framed the charge against him of dereliction of duty and gross negligence. Charge-sheet was served upon him. He submitted his reply to the charge-sheet and, thereafter, he was terminated by giving a month's notice. The employee made a representation to the Chief Minister of the State of Punjab, who called for a report and directed that in the meantime, the employee should continue in service. On 16.6.1964, the Chief Minister passed an order that considering good record, the employee did not deserve 'punishment of termination of service only an account of a few bad reports' and that he should continue in service and his case should be reviewed after he has earned another report from the present Excise and Taxation Commissioner for the year 1964-65. Thereafter, on 27.10.1964, the Excise and Taxation Commissioner without waiting for further report, as directed above, terminated the employee stating that in terms of conditions of his service, he is given a month's notice, whereafter he shall stand terminated. In the suit filed by him, the Court held that the order of termination is bad being punitive. That judgment was confirmed in first appeal as well as in second appeal. Following Shamsher Singh (supra), the Apex Court held that in view of the concurrent findings, the appeal filed by the State deserves to be dismissed.
25. In State of U.P. v. Ram Chandra Trivedi : (1977)ILLJ200SC , these questions came to be considered before a three Judge Bench of the Apex Court. Sri Trivedi was appointed as temporary Clerk in Canal Division. He was required to appear in a departmental examination. It is alleged that one Gopal Deo Santiya detected to have personated and appeared for the respondent in the said test. The Executive Engineer called explanation of both the Clerks and reported the matter to the Superintending Engineer. The Superintending Engineer brought the matter to the notice of Chief Engineer who passed an order directing Superintending Engineer to award suitable punishment to both the Clerks. The Superintending Engineer terminated both the Clerks by a simple order of termination. It was held by the Court, after reviewing the earlier case law including Shamsher Singh (supra), that consistent law is that the motive in passing an order of termination or reversion operating in the mind of the Government is not a relevant factor for determining whether the order was passed by way of punishment or not, the Court did not find the order of termination punitive and in the absence of any pleading with respect to background facts, held that the order was not punitive and declined to call for the record.
26. In R.S. Sial (supra) and Regional Manager v. Pawan Kumar Dubey : (1976)IILLJ266SC , also same view was taken.
27. In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha : (1980)ILLJ137SC , the Supreme Court considered the distinction in 'foundation' and 'motive'. Though it was a labour matter, but the question of 'motive' and 'foundation' was common to labour cases as well as the cases involving a Government servant and Public Sectors. In Paras 53 and 54 of the judgment, the Hon'ble Court sought to clarify the aforesaid distinction as under:
53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive favour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slight differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise, whether, in such a case the grounds are recorded in a different proceedings from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the ' termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used.
54. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge, we need not chase other hypothetical situations here.
28. In Nepal Singh v. State of U.P. : (1980)IILLJ161SC , the employee was temporarily appointed and in a drive launched by the Inspector General of Police for weeding out unsuitable and unfit police officers, he was terminated by a simple order of termination. The Court held that mere fact that the drive was launched by D.I.G. would not make the order punitive.
29. In Oil and Natural Gas Commission v. Dr. Md. S. Iskander Ali : (1980)IILLJ155SC , a three-Judge Bench of the Apex Court considered the validity of termination of a probationer. Dr. Ali was appointed purely on temporary basis as Medical Officer and under the terms of his appointment, he was to remain on probation for a period of one year extendable at the discretion of the appointing authority. It also provided that his appointment may be terminated any time without assigning any reason. On the basis of certain reports, it appears that some departmental enquiry was initiated but could not proceed further. After completion of one year's probation, the same was extended for another six months and thereafter, he was terminated by simple order of termination. The High Court allowed the writ petition and in appeal, the Apex Court reversing the judgment and upholding the order of termination held that prima facie the order is simple termination without involving any stigma. It does not involve any evil consequences and the respondent employee has no right to service. It also recorded a finding that the employee could not make out a strong case necessitating to delve into the documents and material in order to determine a case of victimisation or punishment.
30. In State of Maharashtra v. Veerappa R. Saboji : (1979)IILLJ393SC , the Court held that ordinarily and generally the rule laid down in most of the cases by the Apex. Court is that one has to look into the order on the face of it to find out whether it casts any stigma on the employee. There is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such an order.
31. Then came Anoop Jaiswal v. Government of India : (1984)ILLJ337SC , where a probationer was terminated by innocuous order. Considering the fact finding enquiry and the various instances in close proximity when the order was passed, the Court held that the termination simplicitor was a camouflage though founded on the alleged misconduct. It was held that the Court can go behind the order to find out the real nature of the order and if some report or recommendation is the foundation or the basis of the order, the same has to be read alongwith the order for the purpose of determining the true character of the innocuous order of termination.
32. In Shesh Narain Awasthy v. State of U.P. 1988 (II) LLJ 99 (SC). a temporary constable was terminated by innocuous order. However, on scrutiny, it was found that he was terminated on account of his alleged participation in activities of an unrecognised Police Karamchari Parishad. The order of termination was held punitive.
33. In Ravindra Kumar Misra v. U.P. State Handloom Corporation Ltd. : (1988)ILLJ73SC , the employee was working in a public sector undertaking on temporary basis. Though while continued to be temporary, he was given two promotions. On 22.11.1982, he was placed under suspension on the allegation of misconduct, dereliction of duty, mismanagement and showing fictitious production of terrycot cloth based on a preliminary enquiry made against him. The order of suspension was revoked shortly and he was terminated. He challenged the order alleging it to be punitive but failed in the High Court. The Apex Court held that being an employee of public sector corporation, a temporary employee can be terminated by a simple order of termination and Article 311 has no application in such a case. The Court also found that the service rules authorizes the employer to terminate temporary employee by simple order of termination. In the circumstances, the Apex Court held that the employee being a temporary servant has no right to post and under the contract of service and also the service rules governing him, the employer has right to terminate him by giving one month's notice. The order of termination is innocuous and does not cast stigma nor visit evil consequence, hence, it cannot be said to be founded on misconduct and accordingly, upheld the order of termination.
34. In State of U.P. v. Kaushal Kishore Shukla : [1991]1SCR29 ; Triveni Shanker Saxena v. State of U.P. : (1992)IILLJ23SC and State of U.P. v. Prem Lata Misra : (1995)ILLJ28SC , the order of termination simplicitor was passed in respect to temporary employees in exercise of statutory powers under U.P. Temporary Government Servants (Termination of Service) Rules, 1975 after being satisfied that the work and conduct of the temporary employee was not satisfactory. The Court emphasized that the termination is in accordance with the terms and condition of service regulated by relevant service rules. Further in Kaushal Kishore Shukla (supra), the Court held that the decision in Nepal Singh, : (1986)IILLJ343SC , was rendered per incuriam having not considered Champaklal (supra).
35. In Commissioner of Food and Civil Supplies v. P.C. Saxena : [1994]3SCR930 , the departmental proceedings were started and dropped. The Court held that the order is not punitive.
36. In Radhey Shyam Gupta v. State Agro Industries Corporation Ltd. and Anr. 1992 (2) SCC 21, a Division Bench of the Apex Court had an occasion to have a retrospect of the earlier law on the subject of 'termination slmplicitor' when punitive. The employee was working as Senior Accountant in a public sector corporation of State of U.P. He was served with a letter by the Managing Director alleging that one person has complained that the employee had fraudulently taken Rs. 200 and was required to submit his explanation. The employee denied the allegation. No enquiry was conducted thereafter, but it appears that the report was submitted by the General Manager, Fertilizer. Thereafter, a simple order of termination was passed referring to condition No. 3 of the appointment order enabling the employer to terminate temporary employee by giving one month's notice or pay in lieu thereof. It was contended that the order, though innocuous but is punitive since it is based on the ex parte report of enquiry and the allegation of bribe. It is not mere motive but the very foundation of the termination. The Tribunal accepted the contention and set aside the order of termination whereagainst the writ petition was allowed by the High Court. The High Court, in reversing the order of Tribunal, held that the enquiry was in the nature of a preliminary enquiry and there was enough material to indicate that the work and conduct of the employee was unsatisfactory. The Apex Court formulated the following questions:
(1) Whether the report was a preliminary report ?
(2) Whether it was the motive or the foundation for the termination order ?
(3) Whether it was permissible to go behind the order ?
37. After referring the entire earlier case law, the Court held that there is no conflict in the opinion that in the matter of termination simplicitor, the theory of motive and foundation has to be applied to find out whether the order is punitive or not. The matter has to be tested on the facts of each case considering relevant facts in the light of the surrounding circumstances. In the matter of Government servant, Article 311's protection is available not only to temporary servants but also to a probationer. Going through the report, the Court held that Enquiry Officer examined witnesses, recorded their statements and gave a clear finding of acceptance of bribe by the employee concerned and recommended his termination. The entire enquiry was ex parte. The termination order was passed on the very next date. Therefore, in the facts of this case, the report cannot be said to be a preliminary enquiry report. Its findings are definite and not a preliminary report where some facts are gathered and a recommendation is made for a regular departmental enquiry. The termination, therefore, was held to be punitive.
38. Validity of termination of a probationer by a simplicitor order, again raised before the Apex Court in Dipti Prakash Banerjee (supra). Considering earlier judgments, the Apex Court held:
(1) 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 has to be treated as founded on the allegations and will be bad, but if the enquiry was not held, no finding was arrived at and employer was not inclined to conduct an enquiry, but at the same time, if he did not intend to continue the employee against whom there were allegations, it will only be a case of motive and the order will not be bad.
(2) 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 case also the allegations would be a motive and not the foundation and the order of termination simplicitor would be valid. The mere fact that the order mentions certain words like 'unsuitable', 'unsatisfactory work and conduct', 'not dependable', 'lack of potential' etc., by itself may not amount to a stigma but whether from the language or the words implied in the order of termination it cast a stigma or not will depend upon the facts and circumstances of each case.
(3) If the order of termination does not contain any word which amount to stigma, but refer to some other document, which contains the words amounting to stigma, that would vitiate the order of termination simplicitor.
39. The distinction between 'foundation' and 'motive' was explained in Para 21 of the judgment as under:
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 or on motive on the ground of unsuitability to continue in service.
40. In Nar Singh Pal (supra), the employee, who was working as a casual labour in the Government department for more than ten years, was terminated after a preliminary enquiry of an incident of assault by the employee upon some other worker. After having the record of the preliminary enquiry, the Court found that the evidence was recorded proving guilt of the employee concerned and therefore, was a case where he was terminated on the alleged misconduct without holding any regular enquiry. The order of termination, therefore, was set aside.
41. In Chandra Prakash Shahi (supra), which was a case of termination simplicitor of a probationer, the employee was a constable on probation in Provincial Armed Constabulary and was terminated by a simple order of termination in exercise of power under U.P. Temporary Government Servants (Termination of Service) Rules, 1975. A preliminary enquiry was held against Chandra Prakash Shahi and it was observed therein that he had indulged in a misconduct of hurling blows and using filthy language to the superior officers of the department, whereafter the order of termination was passed. The Court held that in such matter of termination simplicitor, the concept of 'motive' and 'foundation' has always been considered. 'Motive' is the moving power which impels action for a definite result, or to put it differently. 'Motive' is that which incites or stimulates a person to do an act. However, when a motive would become a foundation is an issue which has to be decided by the Court with reference to the facts of the given case. Motive and foundation are certainly two points of one line ordinarily apart but when they come together, motive get transformed and merged into foundation. With reference to a probationer, the Court held that a probationer has no right to hold the post and can be terminated at any time during the period of probation on account of general unsuitability to the post in question. If for determination of suitability of probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held , and based thereon a decision is taken to terminate his service, the order will not be punitive as the enquiry and finding therein would only be a motive. But if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order of termination is passed based on such enquiry, it would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question but to find out the truth of allegations of misconduct against that employee. In that case, the order would be founded on misconduct. It will not be a case of mere motive.
42. In A. P. State Federation of Cooperative Spinning Mills Ltd. (supra), the employee was appointed as General Manager (Finance) for a period of three years but he was terminated before expiry of the said period. It was contended that though the order is innocuous, but the attending circumstances show that it is penal. The Court held that in a case of termination simplicitor, the Court is not debarred from looking into attending circumstances to find out whether the termination is the result of a motive or foundation. Having gone through the attending circumstances, the Court upheld the judgment of the High Court holding that the termination was founded on alleged misconduct and was penal in nature.
43. In Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. and Ors. : (2003)IILLJ272SC after following Dipti Prakash Banerjee (supra) and Pavanendra Narayan Verma (supra), 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 so called order of termination simplicitor of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may riot 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 services 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.
44. In Abhijit Gupta v. S.N.B. National Centre, Basic Sciences and Ors. : (2006)IILLJ777SC , the employee was a probationer. On 20.11.1995, he received a letter wherein it was said that his performance during probation was far from satisfactory, he lack drive, imagination and initiative in performance of his duties and despite of frequent advises has failed to improve his performance. He was, then advised to improve so as to enable the authorities to consider him for confirmation. The probation was extended from time to time. Thereafter, he was discontinued by observing that his performance, ability and capability was examined and found unsatisfactory, hence, he is considered unsuitable for the post and not suitable for confirmation. The order was assailed being punitive in nature. The writ petition was allowed by the Hon'ble single Judge of the High Court but judgment was reversed in appeal. The Apex Court referring to Dipti Prakash Banerjee (supra), noticed that the Courts continue to struggle with semantically indistinguishable concepts like 'motive' and 'foundation'. Terminations founded on misconduct are illegal while terminations motivated by misconduct are not bad. The decision are legion and it is impossible task to find a clear path through the jungle of the precedents. After considering certain tests formulated by the Apex Court in Para 21 of the judgment in Dipti Prakash Banerjee (supra), the Court noticed that one of the judicial test to determine whether order of termination is punitive or not would be (a) a full-scale formal enquiry; (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present, the order of termination would be punitive irrespective of the form and if any one of three factors is missing, the termination would be unassailable. The Apex Court observed that generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or inaptitude, whatever the language used in the termination order may be. It also said that although strictly speaking the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. In order to constitute stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. The Apex Court, therefore, held that the order in that case was not punitive.
45. In Jai Singh v. Union of India and Ors. : (2006)9SCC717 , the employee was engaged as daily wage constable in auxiliary battalion and was terminated on the ground of disbandment of battalion and also indicating his conduct to be unsatisfactory. The Court did not find the order of termination to be punitive since neither it was founded on any misconduct or otherwise was stigmatic.
46. This has been reiterated in State of Punjab and Ors. v. Sukhwinder Singh : AIR2005SC2960 ; Kendriya Vidyalaya Sangathan v. Arunkumar Madhavrao Sinddhaya and Anr. : AIR2007SC192 ; Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation and Anr. : 2007(12)SCALE115 and Nehru Yuva Kendra Sangathan (supra).
47. This is another but important aspect of this matter. When the form of the order would determine whether it casts stigma or not by using certain words reflecting upon assessment of work and conduct of the employee concerned has also been subject-matter of consideration. Some of such cases we have already dealt with and some we propose to refer as under.
48. In Allahabad Bank Officers Association and Anr. v. Allahabad Bank and Ors. : (1996)IILLJ519SC , the Apex Court while considering as to whether an order of compulsory retirement can be treated to be stigmatic and in what circumstances, held that if it contains a statement casting aspersion on the conduct of the employee, it would be stigmatic but if it merely highlights the unsuitability of the employee, it is an order simplicitor. The Court held that expression like 'want of application', 'lack of potential' and 'found not dependable' when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic.
49. In Dhananjay v. Chief Executive Officer, Zila Parishad, Jaina : (2003)IILLJ179SC , mention of the word 'suspension' in the order of termination was not held to be stigmatic or punitive.
50. In State of U.P. and Ors. v. Ram Bachan Tripathi : (2005)IIILLJ731SC , the Hon'ble Apex Court considering as to when an order of termination simplicitor can be said to be stigmatic held as under:
We shall first examine the plea relating to the stigma. Usually a stigma is understood to be something that is detraction from the character or reputation of a person. It is blemish, imputation, a mark or label indicating a deviation from a norm.
Mere description of a background fact cannot be called as stigma. In the termination order it was merely stated that the show cause notices were issued and there was no response. This can by no stretch of imagination be treated as a stigma as observed by the Tribunal and the High Court.
51. In Rajasthan State Road Transport Corporation and Ors. v. Zakir Hussain : (2005)IIILLJ786SC , the Hon'ble Apex Court following its earlier judgment in the case of Kaushal Kishore Shukla (supra) held:
In State of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla, this Court has observed in Para 6 as under:The High Court held that the termination of respondent's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate. It is unfortunate that the High Court has not recorded any reasons for this conclusion. The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorized audit of the boys fund in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service. The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorized audit constituted adequate material to enable the competent authority to form the requisite opinion regarding the respondent's suitability for service. Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of conduct of service. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.
52. Similar situation arises in the case of State of Punjab v. Balbir Singh 2002 (1) SCC 743. The order of discharge mention the words 'unlikely to prove an efficient police officer'. Further before passing the aforesaid order of discharge it appears that Shri Balbir Singh, who was found to have consumed liquor and misbehaved with a lady constable was medically examined and thereafter discharge order was passed. The appeal, which was filed before the Deputy Inspector General of Police, was rejected and while rejecting the appeal, he referred to the aforesaid facts and stated that the discharge order was correct. Shri Balbir Singh challenged the order of discharge on the basis of the averments contained therein as well as in the order of the Deputy Inspector General of Police. The Hon'ble Apex Court upholding the aforesaid order of discharge held as under:
In the present case, order of termination cannot be held to be punitive in nature. The misconduct on behalf of the respondent was not the inducing factor for the termination of the respondent. The preliminary enquiry was not done with the object of finding out any misconduct on the part of the respondent, it was done only with a view to determine the suitability of the respondent within the meaning of Punjab Police Rule 12.21. The termination was not founded on the misconduct but the misbehaviour with a lady constable and consumption of liquor in office were considered to determine the suitability of the respondent for the job, in the light of the standards of discipline expected from police personnel.
53. In Registrar, High Court of Gujarat and Anr. v. C.G. Sharma (supra), the Hon'ble Apex Court has held as under:
We are also satisfied, after perusing the Confidential Reports and other relevant vigilance file etc., that the respondent is not entitled to continue as a judicial officer. The order of termination is termination simplicitor and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the overall performance of there was found to be unsatisfactory by the High Court during the period of probation. It was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simplicitor cannot be said to be violative of Articles 14, 16 and 31.1 of the Constitution of India. The law on the point is crystallized that the petitioner remains probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on the regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent services were deemed to have been continued on the expiry of the probation period, are misconceived.
54. Thus, mere description of background fact cannot be treated to constitute stigma. The term 'stigma' has to be understood in its plain meaning as something that is detraction from the character or reputation of a person. It is blemish, imputation, a mark or label indicating a deviation from a norm. The assessment of work and performance and recording of satisfaction of the authority concerned that he is not satisfied with the work and performance regarding fitness of the employee concerned would not make the order stigmatic since it is not a blemish on the character and reputation of the person concerned but it reflects on the capacity and efficiency of the incumbent with respect to the work for which he/she was employed.
55. The aforesaid observation has been referred to and relied upon recently in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences and Ors. : (2006)IILLJ777SC . observing:
The real test to be applied in a situation where an employee is removed by an innocuous order of termination is : Is he discharged as unsuitable or is he punished for his misconduct?....
56. Another argument was raised in Abhyjit Gupta (supra), that when the words referred to unsuitability etc., are mentioned in the order, if they are read by the future employer it may prejudice the future employment of the employee and in that view of the matter it should be treated to be stigmatic. However, the Apex Court rejected the above contention by relying on its earlier decision in Ravindra Kumar Misra (supra) and in Paras 12 and 13 held:
12. It referred to Dipti Prakash Banerjee (supra) and pointed out that in Dipti Prakash Banerjee (supra), the termination letter expressly made reference to an earlier letter which had explicitly referred to all the misocnducts of the employee and a report of an inquiry committee which had found that the employee was guilty of misconduct and so the termination was held to be stigmatic and set aside. Finally, this Court said that whenever a probationer challenges his termination the Court's first task will be to apply the test of stigma or the 'form' test. If the order survives this examination the 'substance' of the termination will have to be found out. What this Court further observed in Para 29 is crucial and of great relevance:
Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz., what language in a termination order would amount to a stigma Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or inaptitude, whatever the language used in the termination order may be. Although strictly speaking the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above meter unsuitability for the job.13. In the case of the appellant before us, the record in uncertain terms makes it clear that every time the appellant's attention was drawn to his deficiencies and he was repeatedly advised to improve his behaviour, conduct and discharge of work. True, that in some of the letters there was intemperate language used (the appellant was also equally guilty of doing that). Notwithstanding the intemperate language, we are unable to accept the contention of the appellant's counsel that the letter dated 7.4.1998 indicates that the appellant was being charged with the misconduct and therefore, being removed from service. Read as a whole, the letter gives the impression that the removal of the appellant from service was only because the respondents, after giving a long rope to the appellant, had come to the conclusion that the appellant's service was unsatisfactory and there was no hope of his improvement.
57. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under:
(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution;
(b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences;
(c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order;
(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct;
(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary;
(f) 'Motive' and 'foundation' are distinct, though the distinction is either very thin or overlapping. 'Motive' is the moving power, which impels action for a definite result, or to put it differently. 'Motive' is that which incites or stimulates a person to do an act. 'Foundation', however, is the basis, i.e., the conduct of the employee, when his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation;
(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not;
(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive:
(i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed;
(j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating a probationer or temporary employee is held, it would not make the order punitive;
(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive;
(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and cannot be passed without giving an opportunity to the concerned employee;
(m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive;
(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct;
(o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive:
(i) 'want of application';
(ii) 'lack of potential';
(iii) 'found not dependable';
(iv) 'under suspension';
(v) 'work is unsatisfactory';
(vi) 'unlikely to prove an efficient officer.
(p) Description of background facts also have not been held to be stigmatic;
(q) However, the words 'undesirable to be retained in Government service', have been held stigmatic;
(r) If there is (i) a full scale formal enquiry; (ii) in the allegations involving moral turpitude or misconduct; (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive.
58. The aforesaid are not exhaustive, but lay own some of the principles to find out whether termination of an employee is simplicitor or punitive. Each and every case has to be considered in the light of the facts and circumstances of the case, but broadly the aforesaid are the factors to find out whether termination of an employee is punitive or not.
59. Considering the facts of this case in the light of the legal principles, as discussed above, we are clearly of the view that the impugned order of termination is nothing but punitive one and therefore, cannot sustain.
60. From the record of the writ petition it appears that on 3.8.1991 one Amar Dev Singh, Security Supervisor made a complaint against the petitioner that on 3.8.1991, in the morning at 8.20 a.m., he locked the main gate of N.C.Z.C.C. office and went away on his scooter pushing away the security guard. The lock put on by the appellant resulted in non functioning of the office on time. On the same date the Director, N.C.Z.C.C. passed the following order:
Administrative Officer Sri P. P. Srivastava is directed to conduct full and in-depth enquiry into the incident which took place this morning leading to a situation where the office staff was prevented from entering the office compound due to forcible locking up of the gates and doors by Sri Paras Nath Pandey, Hindi Stenographer.
The antecedents of mental illness of Sri Paras Nath Pandey, both in terms of statements of staff and the records available in the office may also be examined.
The Administrative Officer will peruse the records and statements which he receives during the course of this enquiry and give his report fixing responsibility for the incidents which have taken place.
The report should be submitted to the Director by August 5, 1991.
61. It is clear that the Director required the Administrative Officer to conduct a full and in-depth inquiry into the incident took place in the morning leading to a situation of prevention of office staff from entering the office compound due to forcible locking up of the gate and door by the petitioner. He also directed to examine the antecedents of mental illness of petitioner in terms of the statement of staff and record available in the office. For the said purpose the Administrative Officer was also required to peruse the record and the statements which he may receive during the course of inquiry. The Administrative Officer during the course of alleged inquiry examined several persons and submitted his report dated 5.8.1991 holding the charges prima facie proved against the petitioner. He clearly said that the petitioner is guilty of deliberately and mischievously playing fraud, misrepresentation, assault upon the security guard, acting against public interest, and created obstruction in discharge of official duties by others, attempted to leak information to media and therefore, has faulted the principle of official secrecy; with mala fide intention; committing breach of peace etc. Inquiry Officer also remarked that the petitioner appears to be mentally sick. He recommended that considering the charges found proved against the petitioner, he is not a person fit to be retained in service and, therefore, deserve to be terminated. It is this report which was considered by the Director, N.C.Z.C.C. on 5.8.1991 itself whereupon he observed that the petitioner appears to be suffering from serious mental disorder for quite sometime which has now aggravated to a point where it is assuming unmanageable position leaving him to behave in a manner which is causing public disorder in the office. He also observed that it is established beyond doubt that the appellant made attempts to give garbled statements in the press against N.C.Z.C.C. which is a serious act of indiscipline and cannot be tolerated even, if, had he been in a sound mental condition. Based on the aforesaid finding he terminated the petitioner w.e.f. 5.8.1991 (forenoon) by paying a month's notice pay. The aforesaid finding of Director has been placed on record as Annexure-12 to the counter-affidavit in the writ petition. Based on the aforesaid finding, the order of termination impugned in the writ petition was passed on 5.8.1991 by the Director, N.C.Z.C.C. Apparently, though the order of termination is innocuously worded but the circumstances attending and preceding to the said order, the inquiry conducted against him, the finding recorded by the Director, N.C.Z.C.C., leaves no doubt that the impugned order of termination is founded on the alleged acts of misconduct which was found proved by the Director himself based on an inquiry conducted by the Administrative Officer under the orders of Director.
62. The Hon'ble single Judge though has noticed this fact but has further observed that the termination of service of petitioner after making such an inquiry shows fairness in the matter of procedure on the part of the respondents and therefore, the order cannot be said to be arbitrary, with respect, it is not a correct approach in the matter inasmuch as once it is evident that the termination simplicitor is founded on the alleged act of misconduct said to be proved by the authorities concerned, an inquiry giving due opportunity to the employee is must and in the absence of such an inquiry, a punitive termination cannot be sustained. It is not the case whether the authorities acted fairly or unfairly but the question is whether inquiry conducted by the authorities was in accordance with law or not and whether before recording a finding against an employee in respect to the alleged misconduct the employee was given adequate opportunity of defence. Though Article 311 of the Constitution is not applicable to N.C.Z.C.C. since it is not a Department of the Government but it cannot be disputed that being an 'authority' under Article 12 of the Constitution it was incumbent upon it not to act arbitrarily and deprive an employee the right to earn his livelihood on the allegations of alleged proved misconduct without giving any opportunity to the employee concerned. Admittedly, Articles 14, 16 and 21 would apply to N.C.Z.C.C.
63. However, this leads to another question about the relief which is to be granted to the petitioner in case the impugned order of termination is set aside. Admittedly, he was a temporary employee. Though it is true that the order of termination having been found to be punitive is liable to be set aside but in creating a situation like this, to some extent, he is also responsible. Considering various principles as discussed and observed by this Court in the case of Brijendra Prakash Kulshrestha v. Director of Education, U.P. and Ors. 2007 (3) ADJ 1, we are of the view that the petitioner is not entitled to full back wages for the period he has not rendered service with the respondents and the ends of justice would meet if only 25% of the back wages is allowed, provided he was not gainfully employed elsewhere during the aforesaid period.
64. In view of the aforesaid discussion, we are of the view that the order of termination cannot sustain and the Hon'ble single Judge has erred in law in dismissing the writ petition by upholding the impugned order of termination.
65. In the result, this appeal is allowed. The judgment dated 2.11.2000 passed by Hon'ble single Judge, impugned in this appeal is set aside. The order of termination dated 5.8.1991 impugned in the writ petition is hereby quashed and the writ petition is allowed. The petitioner shall be entitled for reinstatement with all consequential benefits but with respect to arrears of salary he will be paid only 25% of the back wages for the period he remained out of employment pursuant to the impugned order of termination, provided he was not gainfully employed elsewhere during the aforesaid period. It goes without saying that this judgment shall not prevent the respondents from proceeding afresh against the petitioner and pass a fresh order in accordance with law.
66. There shall be no order as to costs.