STATE OF KERALA Vs. THIRUVIAM PILLAI

JUDGEMENT

(1.) We are unable to endorse the reasoning or the conclusion of the learned Judge and we think that this appeal should be allowed. The writ petitioner respondent was a Block Development Officer, Kasaragod, whose terms of deputation to that office were governed by Ext.R1 G O.(MS) 621/ 62/DD, dated 26th July 1962, filed along with the counter affidavit of the 1st respondent in the writ petition, viz., the State, the appellant in the writ appeal. Clause.8 of the said G.O reads as follows:

(2.) Besides noticing the above unreported judgment of Mathew, J., the learned Judge in the decision under appeal, noticed several decisions dealing with the termination of the services of a probationer for unsatisfactory conduct. These decisions are well known; and we really think it unnecessary to cover them in detail. It would be enough to note that the learned Judge noticed decisions in Union Territory of Tripura, Agarthala v. Gopal Chander Dutta Choudhury 1963 Supp. (1) SCR 266 State of Bihar v. Gopi Kishore AIR 1960 SC 689 , Jagdish Mitter v. Union of India AIR 1964 SC 449 , State of Punjab v. Sukh Raj Bahadur AIR 1968 SC 1089 , R.S. Sial v. State of U.P. AIR 1974 SC 1317 , State of Bihar v. S. B. Mishra AIR 1971 SC 1011 . Madan Mohan v. State of Bihar AIR 1973 SC 1133 and State of U P v. Sughar Singh AIR 1974 SC 423 . We spare ourselves the trouble of examining these decisions in detail as most, if not all of them, were surveyed in detail by the recent decision of the Supreme Court in State of U.P. v. Ramchandra AIR 1976 SC 2547 . This decision and the other relevant decisions were again fully surveyed and examined by a Full Bench of this court of which one of us (myself) was a member, recently, in W. A. No 450 of 1976. To briefly restate the principles laid down by the decisions surveyed, and reiterated by the Full Bench, in the recent judgment of ours: it is well recognised and well settled that an order of termination seemingly innocuous may well be shown to be punitive in character and the burden of showing it, is upon the party challenging the order as punitive or penal in character. Five propositions were laid down in State of Punjab v. Sukh Raj Bahadur AIR 1968 SC 1089. Propositions 3 and 4 laid down by that Court were as follows:

(3.) We cannot agree with the learned Judge. The order of termination in so far as shown by the records, is, on the face of it, innocuous The burden of proving that it was otherwise is on the petitioner It is well established that a preliminary survey and assessment of the record of work and performance of the writ petitioner is permissible and possible even for taking action under Clause.8 of Ext. R1, very much in the same way as for terminating the probation of a probationer. Such preliminary survey and assessment, do not, it has been well recognised, sound in the region of punishment and cannot render the action punitive in character. To put the test as propounded by the Supreme Court, in the recent decision in AIR 1976 SC 2547, and followed by us in the Full Bench decision referred to, the question for consideration is whether the sinister cause alleged was really the foundation of the proposed termination or was only the motive for the termination Viewed in the light of the said principle again, we are of the opinion that there was no material in the instant case to show that the unsuitability of conduct of the writ petitioner respondent, and the complaints regarding the nature of his work and conduct, which might have rendered him open to disciplinary proceedings, were really the foundation of the action and not merely the motive for it We think it was only the latter. A preliminary assessment of work and conduct, is. as we observed, quite necessary and permissible, even for action under Clause.8 of Ext. R1. We are therefore of the view that she learned Judge's reasoning and conclusion that the order was punitive in nature cannot be sustained.