SUPREME COURT OF INDIA
State of Uttar Pradesh
Vs.
Vijay Shanker Tripathi
C.A.No.5242 of 2002
(Arijit Pasayat and H.K.Sema JJ.)
20.07.2005
Arijit Pasayat, J.
1. Heard learned counsel for the parties.
2. The service of the respondent was terminated by an order dated 16.08.1988.
It was indicated that his services were no longer required and, therefore,
notice was given with the requisite one month pay and allowance. Such
termination was questioned before the State Public Service Tribunal, Uttar
Pradesh (in short 'the Tribunal'), The Claim Petition No.337/V/89 was dismissed
holding that the order of termination was a termination simpliciter and no
stigma was attached. It was found that there were certain allegations and the
respondent-employee had more or less accepted the allegations. The order of
termination was, therefore, neither attached with any stigma nor was visited by
any punitive character. Accordingly, it was held that Article 311 (2) of the Constitution
of India, 1950 (in short 'the Constitution') was not attracted. The
respondent-employee filed a writ petition only on the ground that Article 311
(2) of the Constitution was required to be followed in the cases of temporary
government servants. High Courts was of the view that Article 311 (2) is
required to be followed even in case of temporary Government employees.
Accordingly, the order of termination was set aside and the writ petition was
allowed.
3. In support of the appeal, learned counsel for the appellant-State and its
functionaries submitted that the basic issue before the High Court was whether
the order of termination was a termination simpliciter or there was any stigma
attached. There is no quarrel to the proposition that Article 311 (2) is
attracted to temporary government servants. But whether on the fats of the
case, the order of termination was legal, was not tested by the High Court. It
was pointed out that there is nothing in the order of termination which even
remotely shows any stigma and, therefore, the High Court was not justified in
ignoring this aspect and allowing the writ petition. Learned counsel for the
respondent, on the other hand, submitted that before the order of termination,
an enquiry was purportedly conducted and some materials were taken on record.
Without granting any opportunity to the respondent herein and without holding
an enquiry, the order of termination was passed. According to him, the enquiry
report was both the motive and the foundation for the order of termination.
4. We find that the High Court did not consider the question of stigma
or the effect of any enquiry held before the order of termination was passed.
The question whether the enquiry purportedly held was the motive or the
foundation was required to be considered by the High Court in detail. That has
not been done. The question whether termination of service is
simpliciter or punitive has been examined in several cases e.g. Dhananjay vs.
Chief Executive Officer, Zilla Parishad, Jalna) Mathew P. Thomas vs. Kerala
State Civil Supply Corporation Limited and Ors.). An order of termination
simpliciter passed during the period of probation has been generating undying
debate. The recent two decisions of this Court in Dipti Prakash Banerjee vs. Satyendra
Nath Bose National Centre for Basic Sciences, Calcutta) and Pavandra Narayan
Verma vs. Sanjay Gandhi PGI of Medical Sciences 44) after survey of most
of the earlier decisions touching the question observed as to when an order of
termination can be treated as simpliciter and when it can be treated an
punitive and when a stigma is said to be attached to an employee discharged
during the period of probation. The learned counsel on either side referred to
and relied on these decisions either in support of their respective contentions
or to distinguish them for the purpose of application of the principles stated
therein to the facts of the present case. In the case of Dipti Prakash Banerjee
after referring to various decisions indicated as to when a simple order of
termination is to be treated as "founded" on the allegations of
misconduct and when complaints could be only as a motive for passing such a
simple order of termination. In para-21 of the said judgment a distinction is
explained, thus:
"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 simpliciter 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 simpliciter falling in
one or the other category, based on misconduct as foundation for passing the
order of termination simpliciter or on motive on the ground of unsuitability to
continue in service."
5. Therefore, without expressing any opinion on the merits of the case, we set
aside the order of the High Court, remit the matter to the High Court for fresh
consideration. It appears that counter affidavit was not filed by the
appellant-State and its functionaries before the High Court. The same shall be
filed within six weeks. If it is not filed, then, the High Court shall proceed
on the materials before it. If any counter is filed and the respondent-employee
wants to file any further affidavit, adequate time shall be granted by the High
Court to the respondent-employee.
6. The appeal is, accordingly, disposed of with no order as to costs.