State of Punjab v. Dalip Singh

CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Amit Chaudhary, AAG, Punjab for the appellant. Ms. Esha Gupta, Advocate for the respondent. RANJIT SINGH J. Dalip Singh (respondent-plaintiff) was appointed as Conductor in Punjab Roadways at Pathankot by the General Manager on 30.10.1982. His services were terminated on

18.01.1983. The termination order reads as under:- “The work and conduct of the appellant was not found to be satisfactory as he had failed to discharge his duties on

29.12.1982, when conducting Bus No. 7509 from Pathankot to Jullundur and he had not issued the tickets to the passengers, who had paid the fare to him.” The respondent-plaintiff filed an appeal against this order, which was dismissed on 05.10.1983. Thereafter, he filed a suit Regular Second Appeal No. 3240 of 1985 2 seeking declaration to the effect that the order terminating his services and rejecting his appeal were illegal, null and void and ineffective. The ground urged to say so was that these orders were passed on the basis of misconduct, without holding any inquiry and without affording any opportunity to him to defend the case. Thus it was urged that the orders were passed in violation of the principle of natural justice and thus were illegal. The appellant contested the suit, admitting that the services of the respondent-plaintiff were terminated by the impugned order but denied other allegation as made in the plaint. The appellant justified the orders by saying that they are perfectly legal and valid. They also raised an objection in regard to the suit being bad for non- joinder of necessary party and also on the ground that no notice under Section 80 CPC was served before filing the suit. Following issues were framed by the trial Court:-

1. Whether the suit is bad for want of notice under Section 80 C.P.C.? O.P.D.

2. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD.

3. Whether the order dated 5.10.1983 is illegal, null and void as mentioned in para no. 3 of the plaint? OPP.

4. Relief. The trial Court decided issues No. 1 and 2 against the appellant. Issue No. 3 was decided in favour of the respondent- plaintiff and accordingly the suit was decreed. The appeal filed by Regular Second Appeal No. 3240 of 1985 3 the appellant against the same was also dismissed. Accordingly, the appellant has now filed this Regular Second Appeal. The main submission to urge the order to be illegal was on the ground that this order was not a simple order, terminating the services of the respondent-plaintiff who was temporary, but was a stigmatic order and could not have been passed in the manner, it was done. Plea was that the order was passed due to misconduct for which no inquiry was held and no opportunity was afforded to the respondent-plaintiff to defend himself. This, however, was contested by the appellant to say that he was a temporary employee and it was a simpliciter order, terminating the services of the temporary employee. The substantial question of law accordingly that would arise is, “Whether the impugned order could be termed as stigmatic and could be passed in the manner without holding enquiry etc. or it was a simple order terminating the services of temporary employee”? The impugned order has been reproduced above and would clearly show that the services of the respondent-plaintiff were not found satisfactory, as he had failed to discharge his duty on

29.12.1982 while conducting a particular bus from Pathankot to Jalandhar. It is further noticed that he had not issued the tickets to the passengers, who had paid fare to him. The order itself contains the narration, which would show Regular Second Appeal No. 3240 of 1985 4 that it was not an order simplicitor, terminating the services of a temporary employee. It was an order, which was apparently passed for a misconduct. There was clear allegation of misconduct made against the respondent-plaintiff for not issuing tickets to the passengers after having charged the fare. It was a clear case of misconduct and any order of termination on that basis could have been made only after holding an inquiry and affording an opportunity to the respondent-plaintiff to defend himself. This procedure was required to be followed after serving a proper charge sheet to the respondent-plaintiff. The trial Court as well as the First Appellant Court has rightly observed that this order is not an order simpliciter of termination of service. This order clearly cast a stigma on the plaintiff and had visited him with civil consequences. Accordingly, such an order could only be passed after holding an inquiry and after giving due opportunity to the respondent-plaintiff to defend himself. In Kumari Shrilekha Vidyarthi etc. versus State of U.P. and other, AIR 1991 Supreme Court 537, even the State action in contractual matter was held open to judicial review. In A.P.State Fed. of Coop. Spinning Mills Ltd. and another versus P.V. Swaminathan, 2001 (2) RSJ 247, it is observed that the Court is not debarred from looking into the attendant circumstances. It is noticed that if the Court finds that the order is the motive than it could not be interfered with but if it finds that it is foundation for passing the order then it would be held to be penal in nature and must be interfered with. In Satyender Singh Rathore versus State of Haryana and other, 2003 (2) RSJ 394, it is noticed that employment when Regular Second Appeal No. 3240 of 1985 5 brought to an end on account of misconduct without affording any opportunity to rebut the allegations levelled then the order is to be set aside. When the wording of the order is seen, no doubt is left that it was for the misconduct and was passed without following the procedure. The substantial question of law thus has been rightly answered and the Regular Second Appeal, therefore, lacks of merit and accordingly dismissed. February 15, 2010 ( RANJIT SINGH ) JUDGE