The Punjab State & Anr. v. Ms.Ambika Luthra, AAG, Punjab

plaintiff was a temporary employee and had driven a bus from Amritsar to Dera Baba Nanak on 15.12.1982. It is stated by the respondent-plaintiff that he was not feeling well and requested for leave. The official concerned promised to relieve him on his return on

16.12.1982. The respondent-plaintiff claimed that he could not return to Amritsar due to high fever and remained under treatment for 7 days at Dera Baba Nanak. On return, he was not allowed to join duty and the impugned order was passed. The respondent-plaintiff accordingly filed this suit seeking declaration that his termination order was illegal and he would continue to be in service. In the written statement filed by the defendants, it is conceded that the respondent-plaintiff was removed from the service vide order dated 24.12.1982, which is termed as legal and valid. It is pointed out that the respondent-plaintiff by absenting showed that his work and conduct was not satisfactory and accordingly his services were innocuously dispensed with without casting any stigma as he Regular Second Appeal No.2443 of 1986 (O&M) :{ 3 }: was purely a temporary employee. On the basis of pleadings, the suit was tried on the following issues:- “1. Whether order dated 24.12.82 terminating the services of the plaintiff is illegal and void, if so its effect? OPP

2. Relief.” The Trial Court dismissed the suit, against which the respondent-plaintiff filed an appeal, which was allowed by the first Appellate Court on 20.2.1986. By making reference to the contents of the order passed, it was pleaded on behalf of the respondent-plaintiff that the order was stigmatic and, thus, could not have been made without holding enquiry. Plea is that the principles of natural justice stood violated. Though, some reference is made to the absence from duty by the respondent-plaintiff but ultimately the order of termination reads as under:- “During his short stay in service, he was proved to be unwilling worker. In view of the terms and conditions of the appointment order, his services are no longer required w.e.f. 16.12.1982 from the date of his absence from duty.” No doubt, the earlier part of this order also contained the following recitals:- “Shri Nirmal Singh, Driver No.R.59 was on duty with vehicle No.6517 on Amritsar-Dera Baba Route on

15.12.82 and 16.12.82. He was for the night at Dera Baba Nanak on 15.12.82 and was to pick up 7.40 A.M. time from Dera Baba Nanak to Amritsar. He willfully absented himself from duty and did not pick up his time on Regular Second Appeal No.2443 of 1986 (O&M) :{ 4 }:

16.12.82. The duty section Amritsar on receipt of information about his willful absence sent another Driver, Shri Shangara Singh Driver No.51 to Dera Bana Nanak for bringing back the bus from Dera Baba Nanak to Amritsar. A preliminary enquiry was conducted and it has been proved beyond any doubt that Shri Nirmal Singh Dr.No.59 willfully absented himself from duty and did not pick up the time of 7.40 A.M. from Dera Baba Nanak. Shri Nirmal Singh Driver No.R-59 was appointed on purely temporary and adhoc basis as Driver vide Endst.No.3932- 36/DD dated 5.7.1982 w.e.f 1.7.82. It was laid down in the appointment orders that his probation period will be for two years.” It is, thus, to be seen whether the above order of termination can be termed as stigmatic in nature or one which was innocuous order simply passed to terminate the services in terms of the conditions of service without casting any stigma. State counsel would submit that the impugned order of termination can not be termed as stigmatic and was a simple order of dispensing with the services of the respondent-plaintiff, who was only a temporary employee. The absence from duty is just mentioned to highlight that the respondent-plaintiff being a Driver had not been responsible enough to perform his duties and being temporary on probation was found to be unwilling worker and, thus, his services dispensed with as longer required. On the other hand, counsel appearing for the respondent-plaintiff would say that the absence is the main cause for termination and which has been found as a Regular Second Appeal No.2443 of 1986 (O&M) :{ 5 }: reason to dispense with the services of the respondent-plaintiff and, thus, the order clearly is punitive in nature and stigmatic and hence, could have been passed only after holding enquiry. In support of his submission, the counsel has placed reliance on State of Punjab Vs. Parkash Singh, 1975 (2) SLR 85. The ratio of law that will emerge from the case of Parkash Singh (supra) is only to the effect that if an order terminating the service of a temporary servant or a probationer is by way of punishment, then it will attract Article 311 of the Constitution. It is further observed that the form of order is not conclusive and it is the substance of the matter that has to be looked into and further that whether or not an order of termination is by way of punishment would depend on the facts and circumstances of each case. The above legal position would not be in much dispute. What is required to be seen, as per Parkash Singh's case (supra), is whether the order is by way of punishment or not and that what, in the substance, is the matter and also the facts and circumstances of each case. In view of the varying stands taken by the parties, following substantial question of law would arise in this case:- “Whether the impugned order dispensing with the services of the respondent-plaintiff is stigmatic in nature and a punitive one and, thus, could not have been passed without holding any enquiry or without following the principles of natural justice? A perusal of the contents of the order reproduced above would show that after making reference to the background, it is Regular Second Appeal No.2443 of 1986 (O&M) :{ 6 }: simply stated that the services of the respondent-plaintiff are no longer required in view of the terms and conditions of his appointment. This order does not make any mention that it was being passed by way of punishment or can not be read to mean that it was passed as punishment. Apparently, there is no stigma attached and so this order can not also to term as stigmatic. Reference here may be made to the case of A.P.State Fed. Of Coop. Sinning Mills Ltd. and another Vs. P.V.Swaminathan, 2001 (2) RSJ 247, where the Court has observed that if an allegation of arbitrariness is made in assailing an 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 respondent-plaintiff would refer to the complete order to brand the same as stigmatic. What is, thus, required to be seen is as to what was the foundation of this order. If the absence was the foundation of this order, then it may be termed as stigmatic but if the reason for which this order was passed was only a motive or a inducing factor, then it may not be open to be termed as stigmatic. The Hon'ble Supreme Court in Radhey Shyam Gupta Vs. U.P. State Agro Industries corporation Ltd. And another, (1999) 2 SCC 21, has clearly observed that there are two lines of cases, which deal with the question. In certain cases of temporary servants and probationers, the Court has taken a view that if an exparte enquiry or report is the motive for the termination order, then the termination is not to be called punitive merely because the principles of natural justice have not been followed. The second line Regular Second Appeal No.2443 of 1986 (O&M) :{ 7 }: of cases are those where the Court has held that the facts revealed in enquiry are not the motive but the foundation of the termination of services of the temporary servants or probationers and hence, punitive and, thus, the principles of natural justice would have to be followed. After dealing with all aspects in this regard and after making reference to two lines of cases decided in the field, it is finally observed:- “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