GOVERNMENT OF TAMIL NADU Vs. S RAJALAKSHMI

JUDGEMENT

(1.) THE Government of Tamil Nadu and the Registrar of this Court have appealed against an order by a learned Single Judge of this Court in Writ Petition No. 256 of 1989. THE learned Single Judge has held that the Government Order in G.O.Ms No. 809/Home (Courts-I), dated 25-3-1986 and the notification of the second respondent No. 9/86, dated 3-4-1986 suffered from the vice of unfair discrimination and/or violative of Arts. 14 and 16(1) of the Constitution and accordingly issued a Writ in the nature of certiorari to quash the same and a writ in the nature of mandamus to reinstate the writ petitioner/respondent in service with all attendant benefits.

(2.) THE writ petitioner/respondent in this appeal was appointed as temporary Judicial Second Class Magistrate by the first respondent, Vide G.O.Ms. No. 3104/Home, dt. 10-12-1982 under R. 13 of the Tamil Nadu State Magisterial Service Rules which were then in force (the Rules have since been repealed and Judicial Second Class Magistrates have since been upgraded in the regular cadre of District Munsif-cum-Magistrate). She joined as a Judicial Second Class Magistrate at Kulithalai in Tiurchirappalli District and from there she was transferred to Aruppukkottai in Kamarajar District and again as Judicial Second Class Magistrate, III, Vellore. THE first appellant by G.O.Ms No. 809 dated 25-3-1986 ordered the termination of the service of the petitioner. THE order of termination runs as follows:

(3.) THE rule that in cases of termination/removal from service, it should be seen that the order in reality is a punishment, though ostensibly removal in terms of contract of service has been applied also to cases where Art. 311 is not attracted but there is either protection of Arts, 14 and 16 of the Constitution or of one or the other statute. This rule of piercing or lifting the veil of the order of termination has been applied in right earnest all through by the Courts and in one of the latest judgments of a Constitution Bench of the Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress 1991 Supp. (I) S.C.C. 600 one of the learned Judges has reiterated this principle in these words: ?It is undoubtedly true as contended, by Sri Bhasin, learned counsel for the intervenor, that it is open to the authorities to terminate the services of a temporary employee without holding an enquiry. But in view of the march of law made, viz., that it is not the form of the section but the substance of the order is to be looked into, it is open to the court to lift the veil and pierce the impugned action to find whether the impugned action is the foundation to impose punishment or punishment or is onl y motive. A larger bench of seven Judges of this Court Shamsher Singh v. State of Punjab 1972 (1) SCC 814 = 1972 (3) SCR 606 elaborately considered the question and laid down the rule in this regard. THE play of fair play is to secure justice procedural as well as substantive. THE substance of the order, the effect thereof, is to be looked into. Whether no misconduct, spurns the action or whether the services of a probationer is terminated without imputation of misconduct is the test. Termination simpliciter, either due to loss of confidence or unsuitably to the post may be a relevant factor to terminate the services of a pr obtainer. But it must be hedged with a bona fide over-all consideration of the previous conduct without being tainted with either mala fide or colourable exercise of power or for extraneous considerations. Such actions were upheld by this Court. THE action must be done honestly with due case and prudence.?