Robert Zosanga Vs. State of Mizoram and ors. - Court Judgment

Excerpt:
- - the petitioner in para-8 of his writ petition averred that on the previous day of his termination he had conducted a search and being a new recruit failed to seize the excisable goods, namely, canned beer. the learned counsel for the petitioner tried to justify the order as punitive as, according to him, the order of termination was issued immediate after the day of petitioner raided a house and failed to seize the excisable goods. therefore, i would like to advert to the recent judgment of the supreme court to resolve the issue at hand. 8. in dipti prakash (supra), the ratio is available in the observation of the supreme court in paras 20, 22 and 24 which are quoted below for better appreciation: 22. if findings were arrived at in inquiry 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 inquiry was not held no finding were arrived at and the employer was not inclined to conduct an inquiry 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. state of punjab, air 2000 sc 1080 the supreme court reiterated the same principle and set aside the termination order in challenge in that appeal on the ground that it was based on the observation that the appellant had failed in the performance of his duties administratively and technically. the petitioner's plea that he was given the order of movement because he had failed to seize the excisable goods on the previous day is not admitted by the respondents. 1. the petitioner was appointed as sub-inspector of excise by the state of mizoram by an order passed on 18th april, 1994. he joined the assignment on 19th april, 1994. thereafter, the commissioner of excise vide order dated 7th june, 1994 terminated his service in pursuance of the proviso to sub-rule (1) of rule 5 of the central civil services (temporary service) rules, 1965. the order of termination is in challenge in this writ petition. 2. i have heard shri george raju, the learned counsel for the writ petitioner and mr. n. sailo, the learned state counsel for the respondents. 3. in order to appreciate their respective submissions it would be necessary to quote hereinbelow the order of termination: in pursuance of the proviso to sub-rule (1) of rule 5 of the central civil services (temporary service) rules, 1965, i hereby terminate forthwith the services of shri robert zosanga, sub-inspector of excise, office of the superintendent of excise, aizawl district, aizawl and direct that he shall be entitled to claim a sum equivalent to the amount of his pay and allowances for a period of onemonth (in lieu of the period of notice) calculated at the same rate at which he was drawing them immediately before the date on which this order is served on or, as the case may be, tendered to him.sd/- r. lalzauva commissioner of excise mizoram: aizawl.'. 4. the order of termination reproduced above ex-facie does not contain any stigma or aspersion. the petitioner in para-8 of his writ petition averred that on the previous day of his termination he had conducted a search and being a new recruit failed to seize the excisable goods, namely, canned beer. consequent thereupon, the petitioner was served with the order of termination on the following day. the respondents in their affidavit-in-opposition, in para 3, by way of reply, simply submitted that his overall performance was found unsatisfactory and therefore, the termination order was issued. it is further stated that the writ petitioner was on probation and, therefore, the order of termination cannot be held to be punitive or stigmatic. the respondents also pleaded that the petition has been initiated after lapse of three years and by now the vacancy has also been filled up. the petitioner, however, in his reply controverted the stand taken by the state and submitted that he was put on duty straightaway without any training and he has been victimised for no fault of his own. 5. the pleadings on record suggest that the following two questions would be determinative of the fate of the instant writ petition :- (a) whether the order of termination of the services of the writ petitioner issued by the commissioner of excise, mizoram on 7th june, 1994 is stigmatic or punitive: and (b) whether the petitioner is guilty of laches in approaching the court after lapse of three years. 6. it is an admitted fact that the petitioner was on probation. the order of termination quoted hereinbefore does not on the face of it appear to be stigmatic or punitive. the learned counsel for the petitioner tried to justify the order as punitive as, according to him, the order of termination was issued immediate after the day of petitioner raided a house and failed to seize the excisable goods. in support of his contention, the learned counsel has referred to a decision of the supreme court reported in (1989) 3scc 331 and adecision of this court in 1996 (3) glt 540. the law relating to termination simpliciter has been dealt with by the supreme court in radheshyam gupta v. u.p. state agro industries corporation, air 1999 sc 609: dipti prakash banerjee v. satvendra nath bose national centre for basic sciences, calcutta & ors, air 1999 sc 983; v.p ahuja v. state of punjab, air 2000 sc 1080 and in chandra prakash sahi v. state of uttar pradesh, (2000) 5 scc 152. these are recent judgment delivered by the supreme court and hold the field as on date. therefore, i would like to advert to the recent judgment of the supreme court to resolve the issue at hand. 7. in radheshyam gupta (supra), the supreme court held that in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definite nature arc arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish the government servant. the supreme court further held that in such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. 8. in dipti prakash (supra), the ratio is available in the observation of the supreme court in paras 20, 22 and 24 which are quoted below for better appreciation:- '20. as to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. in this area, as pointed out by shah. j. (as he then was) in madan gopal v. state of punjab. air 1963 sc 531, there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. this very question was gone into recently in r.s. gupta v. u.p. state agro industries corporation ltd., (1998) 8 jt(sc) 585; (1990 air scq 207) and reference was made to the development of the law from time to time starting from parshottam lal dhingra v. union of india, 1958 scr 828: (air 1958 sc 36), to the concept of 'purpose of inquiry' introduced by shah, j. (as he then was) in state of orissa v. ram narayan das, (1961) 1 scr 606: (air 1961 sc 177) and to the seven bench decision in samsher singh v. state of punjab, (1974) 2 scc 831: (air 1974 sc 2192} and to post samsher singh case-law. this court had occasion to make a detailed examination of what is the 'motive'and what is the 'foundation' on which innocuous order is based. 22. if findings were arrived at in inquiry 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 inquiry was not held no finding were arrived at and the employer was not inclined to conduct an inquiry 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 inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. in such a circumstances, the allegation would be a motive and not the foundation and the simple order of termination would be valid. 24. in the present case before us, the order of termination dated 30-4-1997 is not a simple order of termination but is a lengthy order which we have extracted above. it not only says that performance during probation is not satisfactory but also refers to a letter dated 30-4-1996 by which the period of probation was extended by six months from 2-5-1996 and to letters dated 17-10-1996 and 31-10-1996. it concludes by saying that the appellant's 'conduct, performance, ability and capacity during the whole period of probation was not satisfactory and that he was considered 'unsuitable' for the post for which he was appointed.'. 9. in chandra prakash sahi (supra) the supreme court had the occasion to deal with the matter relating to termination of service of a probationer exhaustively. in paras 28 and 29. the supreme court summarised the law on the subject. hence, the said two paragraphs are quoted hereinbelow:- '28. the important principles which are deducible on the concept of 'motive' and 'foundation', concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. if for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. but, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as theinquiry 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 this situation, the order would be founded on misconduct and it will not be a mere matter of 'motive'. 29. 'motive' is the moving power which impels action for a definite result, or to put it differently, 'motive' is which incites or stimulates a person to do an act. an order terminating the services of an employee is an act done by the employer. what is that factor which impelled the employer to take this action? if it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. if, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry.'. 10. the law is made available by the supreme court highlights the concept of 'motive' and 'foundation' and shows that an inquiry for the determination of suitability of the probationer or for his further retention in service or for confirmation will not be punitive in nature subject to the exception that when there are allegations of misconduct and an inquiry is held to find out the truth of the misconduct and an order terminating the service is issued on the basis of that inquiry, such order would be punitive in nature as it was obviously not meant for assessing the general suitability of the employee. this view has been taken by the supreme court consistently in all the cases referred to above. again in the same year, in v.p. ahuja v. state of punjab, air 2000 sc 1080 the supreme court reiterated the same principle and set aside the termination order in challenge in that appeal on the ground that it was based on the observation that the appellant had failed in the performance of his duties administratively and technically. 11. coming back to the case at hand and referring to the termination order quoted in para-3 of this judgment, this court is of the opinion that the impugned order cannot be treated as ex-facie stigmatic or punitive as it makes no reference to the conduct or performance of the writ petitioner. the petitioner's plea that he was given the order of movement because he had failed to seize the excisable goods on the previous day is not admitted by the respondents. the allegations made in the writ petition about themistake committed in the seizure appears to be a unilateral declaration made by the writ petitioner. the respondents in their affldavit-in-opposition simply submitted that the termination order was issued as his performance was found unsatisfactory after assessment of his overall performance, otherwise the termination order would have been treated as arbitrary and capricious. since there is no inquiry, no question of 'behind the back'. the nexus sought to be established between the search and the order of termination is also not discernible on record. the decision was communicated obviously on consideration of overall performance of the writ petitioner. therefore, applying the law as has been highlighted above, the termination in controversy cannot be dubbed as stigmatic or punitive. 12. further, the writ petition also suffers from laches on the part of the writ petitioner. it would appear from para-2 of the affidavit-in-opposition that the statutory appeal preferred by the writ petitioner was disposed of on 13.2.1995 and the instant petition has been filed in september, 1998 i.e, after lapse of three years. the delay is indeed inordinate and cannot be salvaged because the respondents have emphatically pleaded that there is no vacancy now and creation of new post is also not permissible because of the ban imposed by the state. 13. the irresistible conclusion that follows from the discussion above is that, the impugned order of termination being simpliciter and the writ petition having been filed after lapse of three years, the petitioner is not entitled to any relief. 14. in the result, the writ petition is dismissed. 15. considering the circumstances, the parties are directed to bear their own expenses..

Judgment:

1. The petitioner was appointed as Sub-Inspector of Excise by the state of Mizoram by an order passed on 18th April, 1994. He joined the assignment on 19th April, 1994. Thereafter, the Commissioner of Excise vide order dated 7th June, 1994 terminated his service in pursuance of the proviso to Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. The order of termination is in challenge in this writ petition.

2. I have heard Shri George Raju, the learned counsel for the writ petitioner and Mr. N. Sailo, the learned State counsel for the respondents.

3. In order to appreciate their respective submissions it would be necessary to quote hereinbelow the order of termination:

In pursuance of the proviso to sub-rule (1) of rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I hereby terminate forthwith the services of Shri Robert Zosanga, Sub-Inspector of Excise, Office of the Superintendent of Excise, Aizawl District, Aizawl and direct that he shall be entitled to claim a sum equivalent to the amount of his pay and allowances for a period of one

month (in lieu of the period of notice) calculated at the same rate at which he was drawing them immediately before the date on which this order is served on or, as the case may be, tendered to him.

sd/- R. LALZAUVA

Commissioner of Excise

Mizoram: Aizawl.'.

4. The order of termination reproduced above ex-facie does not contain any stigma or aspersion. The petitioner in para-8 of his writ petition averred that on the previous day of his termination he had conducted a search and being a new recruit failed to seize the excisable goods, namely, canned beer. Consequent thereupon, the petitioner was served with the order of termination on the following day. The respondents in their affidavit-in-opposition, in para 3, by way of reply, simply submitted that his overall performance was found unsatisfactory and therefore, the termination order was issued. It is further stated that the writ petitioner was on probation and, therefore, the order of termination cannot be held to be punitive or stigmatic. The respondents also pleaded that the petition has been initiated after lapse of three years and by now the vacancy has also been filled up. The petitioner, however, in his reply controverted the stand taken by the State and submitted that he was put on duty straightaway without any training and he has been victimised for no fault of his own.

5. The pleadings on record suggest that the following two questions would be determinative of the fate of the instant writ petition :-

(a) Whether the order of termination of the services of the writ petitioner issued by the Commissioner of Excise, Mizoram on 7th June, 1994 is stigmatic or punitive: and

(b) Whether the petitioner is guilty of laches in approaching the court after lapse of three years.

6. It is an admitted fact that the petitioner was on probation. The order of termination quoted hereinbefore does not on the face of it appear to be stigmatic or punitive. The learned counsel for the petitioner tried to justify the order as punitive as, according to him, the order of termination was issued immediate after the day of petitioner raided a house and failed to seize the excisable goods. In support of his contention, the learned counsel has referred to a decision of the Supreme Court reported in (1989) 3SCC 331 and a

decision of this court in 1996 (3) GLT 540. The law relating to termination simpliciter has been dealt with by the Supreme Court in Radheshyam Gupta v. U.P. State Agro Industries Corporation, AIR 1999 SC 609: Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors, AIR 1999 SC 983; V.P Ahuja v. State of Punjab, AIR 2000 SC 1080 and in Chandra Prakash Sahi v. State of Uttar Pradesh, (2000) 5 SCC 152. These are recent judgment delivered by the Supreme Court and hold the field as on date. Therefore, I would like to advert to the recent judgment of the Supreme Court to resolve the issue at hand.

7. In Radheshyam Gupta (supra), the Supreme Court held that in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definite nature arc arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish the government servant. The Supreme Court further held that in such cases, the termination is to be treated as based or founded upon misconduct and will be punitive.

8. In Dipti Prakash (supra), the ratio is available in the observation of the Supreme Court in paras 20, 22 and 24 which are quoted below for better appreciation:-

'20. As to in what circumstances an order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. In this area, as pointed out by Shah. J. (as he then was) in Madan Gopal v. State of Punjab. AIR 1963 SC 531, there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. This very question was gone into recently in R.S. Gupta v. U.P. State Agro Industries Corporation Ltd., (1998) 8 JT(SC) 585; (1990 AIR SCQ 207) and reference was made to the development of the law from time to time starting from Parshottam Lal Dhingra v. Union of India, 1958 SCR 828: (AIR 1958 SC 36), to the concept of 'purpose of inquiry' introduced by Shah, J. (as he then was) in State of Orissa v. Ram Narayan Das, (1961) 1 SCR 606: (AIR 1961 SC 177) and to the seven Bench decision in Samsher Singh v. State of Punjab, (1974) 2 SCC 831: (AIR 1974 SC 2192} and to post Samsher Singh case-law. This Court had occasion to make a detailed examination of what is the 'motive'

and what is the 'foundation' on which innocuous order is based.

22. If findings were arrived at in inquiry 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 inquiry was not held no finding were arrived at and the employer was not inclined to conduct an inquiry 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 inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstances, the allegation would be a motive and not the foundation and the simple order of termination would be valid.

24. In the present case before us, the order of termination dated 30-4-1997 is not a simple order of termination but is a lengthy order which we have extracted above. It not only says that performance during probation is not satisfactory but also refers to a letter dated 30-4-1996 by which the period of probation was extended by six months from 2-5-1996 and to letters dated 17-10-1996 and 31-10-1996. It concludes by saying that the appellant's 'conduct, performance, ability and capacity during the whole period of probation was not satisfactory and that he was considered 'unsuitable' for the post for which he was appointed.'.

9. In Chandra Prakash Sahi (supra) the Supreme Court had the occasion to deal with the matter relating to termination of service of a probationer exhaustively. In paras 28 and 29. the Supreme Court summarised the law on the subject. Hence, the said two paragraphs are quoted hereinbelow:-

'28. The important principles which are deducible on the concept of 'motive' and 'foundation', concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the

inquiry 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 this situation, the order would be founded on misconduct and it will not be a mere matter of 'motive'.

29. 'Motive' is the moving power which impels action for a definite result, or to put it differently, 'motive' is which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry.'.

10. The law is made available by the Supreme Court highlights the concept of 'motive' and 'foundation' and shows that an inquiry for the determination of suitability of the probationer or for his further retention in service or for confirmation will not be punitive in nature subject to the exception that when there are allegations of misconduct and an inquiry is held to find out the truth of the misconduct and an order terminating the service is issued on the basis of that inquiry, such order would be punitive in nature as it was obviously not meant for assessing the general suitability of the employee. This view has been taken by the Supreme Court consistently in all the cases referred to above. Again in the same year, in V.P. Ahuja v. State of Punjab, AIR 2000 SC 1080 the Supreme Court reiterated the same principle and set aside the termination order in challenge in that appeal on the ground that it was based on the observation that the appellant had failed in the performance of his duties administratively and technically.

11. Coming back to the case at hand and referring to the termination order quoted in para-3 of this judgment, this court is of the opinion that the impugned order cannot be treated as ex-facie stigmatic or punitive as it makes no reference to the conduct or performance of the writ petitioner. The petitioner's plea that he was given the order of movement because he had failed to seize the excisable goods on the previous day is not admitted by the respondents. The allegations made in the writ petition about the

mistake committed in the seizure appears to be a unilateral declaration made by the writ petitioner. The respondents in their affldavit-in-opposition simply submitted that the termination order was issued as his performance was found unsatisfactory after assessment of his overall performance, otherwise the termination order would have been treated as arbitrary and capricious. Since there is no inquiry, no question of 'behind the back'. The nexus sought to be established between the search and the order of termination is also not discernible on record. The decision was communicated obviously on consideration of overall performance of the writ petitioner. Therefore, applying the law as has been highlighted above, the termination in controversy cannot be dubbed as stigmatic or punitive.

12. Further, the writ petition also suffers from laches on the part of the writ petitioner. It would appear from para-2 of the affidavit-in-opposition that the statutory appeal preferred by the writ petitioner was disposed of on 13.2.1995 and the instant petition has been filed in September, 1998 i.e, after lapse of three years. The delay is indeed inordinate and cannot be salvaged because the respondents have emphatically pleaded that there is no vacancy now and creation of new post is also not permissible because of the ban imposed by the State.

13. The irresistible conclusion that follows from the discussion above is that, the impugned order of termination being simpliciter and the writ petition having been filed after lapse of three years, the petitioner is not entitled to any relief.

14. In the result, the writ petition is dismissed.

15. Considering the circumstances, the parties are directed to bear their own expenses.

.