Tehal Singh v. State of Punjab

Ms. Ambika Luthra, AAG, Punjab for the State. RANJIT SINGH J. The appellant was appointed as Conductor on

11.07.1981. His services were terminated on 13.08.1981. He filed an appeal against the same, which was also dismissed. He accordingly filed the suit alleging that his services were terminated without assigning any reason and without affording him any reasonable opportunity of being heard. The services of the appellant were terminated on the allegation that he had embezzled sum of Rs. 13.40p, which was reported by the Inspector Flying Squad. The appellant was directed to appear before the General Manager on 24.07.1981 but he absented himself and did not make his stand clear. The appellant would plead that the allegations made against him by the General Manager were baseless. His appeal was dismissed on 15.02.1982 thereafter he filed the suit. The respondent contested the suit and took preliminary objection regarding the jurisdiction of the civil Court to try the suit. On Regular Second Appeal No. 2178 of 1986 2 merit, it was pleaded that the order of termination was legal and in accordance with the terms and conditions of the appointment. It is also stated that report of the fraud was made against the appellant which, statedly could not be ignored. The termination order was thus justified. The suit was tried on the following issues:-

1. Whether impugned order dated 13.8.81 and 15.2.82 are illegal and void? If so its effect?OPP

2. Relief. The trial Court decided issue No. 1 in favour plaintiff and decreed the suit. The respondent filed an appeal against the same and the First Appellate Court has reversed the finding of the trial Court. The appellant, therefore, has filed this present Regular Second Appeal. The counsel for the appellant contends that the order passed against him is punitive in nature and so could not have been made without holding the inquiry. He would also contend that the order passed was without any reason and hence the same would call for interference, as it was passed in violation of the principle of natural justice. As per the counsel, the following substantial question of law thus would arise in this case, “Whether the order punitive in nature terminating the services of the appellant could have been passed without holding an inquiry or without following the principle of natural justice?” State counsel would contend that the appellant was on probation and had merely served for about one month or so when Regular Second Appeal No. 2178 of 1986 3 order terminating him from service was passed. It is stated that there was no stigma in the order and it is an innocuous order and thus could be passed in the manner it is done. It is first to be seen whether the impugned order could be termed as stigmatic in any manner. The impugned order when translated reads” “Services of Tehal Singh, Conductor are hereby dispensed with immediate effect”. The order did not make any mention or cannot be read to mean that it was being passed by way of punishment. Apparently, there is no stigma attached and so this order can also not be termed as stigmatic. In A.P. State Fed. Of Coop. Sinning Mills Ltd. And another vs. P.V. Swaminathan 2001 (2) RSJ 247, the Court had observed that if the allegation of arbitrariness is made in assailing the order of termination, it will be open for the employer to indicate how and what was the motive of passing the order of termination. The counsel for the appellant has primarily referred to the order passed by the appellate authority while dismissing the departmental appeal filed by him to term the order to be stigmatic. However, it cannot be ignored that the appellant was dismissed when he had just rendered about one month service. It is to be seen as to what is the foundation of this order. If the reason for which the order is passed was only a motive or inducing factor then it cannot be termed as a stigmatic order. The Hon'ble Supreme Court in the case of Radhey Sham Gupta Vs. U.P. State Agro Industries Corporation Ld. And Regular Second Appeal No. 2178 of 1986 4 another (1999) 2 SCC 21, has observed that there are two lines of cases, which deal with the question. After dealing with all these aspects. It is observed as under: “It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as he then was) in Ram Narayan Das's case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in Champaklal's case. The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge- memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry Officer has not Regular Second Appeal No. 2178 of 1986 5 recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur's case and in Benjamin's case. In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.” In the light of principle as settled in large number of cases in this regard, it cannot be said that misconduct, if any, was the foundation of this impugned order. It was order simply dispensing the services of the appellant without making it stigmatic in any manner. In this background, the submission that it was essential to hold an inquiry before passing this order cannot be accepted. The substantial question of law as framed by the counsel for the appellant Regular Second Appeal No. 2178 of 1986 6 has rightly been analysed and answered. The Regular Second Appeal is accordingly dismissed. March 10, 2010 ( RANJIT SINGH ) JUDGE