ADITYA KUMAR SHARMA Vs. DISTRICT AGRICULTURE OFFICER ETAH

JUDGEMENT

(1.) This writ petition has been filed for quashing the order dated 13th May, 1992 and order dated 18th May, 1992 (Annexures-3 and 4 to writ petition). Further a writ in the name of mandamus commanding respondents to regularise services of petitioner.

(2.) Petitioner was initially appointed as Typist/Electrical Helper in Engineering Department of Agriculture Directorate from 14.11.1984 to 21.8.1985. Subsequently by order dated 14th August, 1985, petitioner was appointed on temporary basis in the office of Deputy Director (Agriculture) in the grade of Rs. 400-650. Petitioner joined the post on 22.8.1985. Subsequently, petitioner was transferred from district Nainital to district Etah in the month of January, 1986. The qualification of petitioner is Intermediate. Service of petitioner were terminated by order dated 13th May, 1992 by respondent No. 2 under the provision of U.P. Temporary Government Servant (Termination of Service) Rules, 1975 and in pursuance of the aforesaid order, respondent No. 1 passed an order on 18th May, 1992 and gave notice to petitioner to terminate the services under the aforesaid rules after expiry of 30 days from the date of receipt of notice. Learned Counsel for petitioner submits that the appointment of petitioner was approved by Joint Director of Agriculture vide its order dated 3rd July, 1986. Submission of petitioner is that provision of U.P. Temporary Government Servant (Termination of Service) Rules, 1975 has wrongly been applied in the case of petitioner in view of fact that he was entitled for regularisation under 1979 Rules. As the Termination Rules, 1975 has been made ineffective subsequent to regularisation of Service Rules, therefore, services of petitioner could not have been terminated in view of aforesaid rules. A specific ground has been taken that termination was contrary to the provisions contained in the Rules. Further, it was pleaded that the order of termination was not simplicitor but result of direction issued by respondent No. 3 though in the body of order nothing has been mentioned but reasons mentioned in it regarding removal from service without any notice and opportunity to petitioner is violative of Article 311 of the Constitution of India. Petitioner submits that in the counter-affidavit different case has been set up by respondent that on receiving a complaint, an enquiry was conducted at the office of Additional Agriculture Directorate (Administration), Lucknow vide letter dated 15.10.1991 and vide reply dated 23.11.1991, it has been submitted that after examining the office record, an enquiry was conducted and certificate submitted by petitioner was found forged. In case of Puroshottam Lal Dingra v. State of U.P., 1958 AIR(SC) 36, it is clear that benefit of Article 311 is available to temporary Government servant. Further, question for consideration is whether the order impugned is an order simplicitor or punitive. The Apex Court in large number of cases has laid down the law which still holds good. However, if the complaint leads to enquiry resulting in termination, the complaint is the foundation of termination, hence the same punitive. The Apex Court has held that test for attracting Article 311, Sub-clause (2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of services or whether it is a very foundation of the order of termination of service of a temporary employee. In Champak Lal Chiman Lal Shah v. Union of India, 1964 AIR(SC) 1854 and State of Bihar v. S.B. Misra, 1971 AIR(SC) 1011, it has been held that impugned order need not necessary to refer to stigma to attributable to the conduct of Government servant and circumstances attendant on impugned order are relevant. In Nepal Singh v. State of U.P. and Ors., 1980 AIR(SC) 1459, the Apex Court has laid down that termination order can be recorded as an order imposing punishment or merely a simplicitor. If it is discovered on the basis of material adduced that order has been passed in view of punishment to Government servant, it will be a punitive order which can only be passed after complying the provisions of Article 311 Sub-clause (2) of the Constitution of India. It is settled in law that if order of termination express some view or functioning of a Government employee then it will be treated to be a stigma. In Deepti Prakash Banerjee's case, 1999 (81) FLR 875 and State of U.P. v. Ashok Kumar, 2005 13 SCC 652 : 2006 (5) AWC 4293 (SC) and State of Haryana v. S.S. Rathore, 2005 7 SCC 518 : 2005 (6) AWC 5158 (SC). the Apex Court has held that when there is no enquiry resulting in termination complaint is the motive and when the complaint leads to enquiry resulting in termination, it cannot be treated the order of termination simplicitor. It is settled now as submitted by learned Counsel for petitioner that if the termination order though innocuous is the result of some complaint and enquiry without giving any opportunity, the provisions of Article 311(2) is violated. Petitioner has placed reliance upon Om Veer Singh v. Inspector General of Police, 1999 2 UPLBEC 1247 : 1999 (2) AWC 1437. In such situation, learned Counsel for petitioner submits that it is settled now that whether the order of termination was the motive or the complaint received is the foundation of termination as demonstrated. Though the order of termination apparently innocuous but as referred to the order dated 11.5.1992 the Joint Agriculture Director, can be said to be a complaint and can be held punitive. While examining the order of termination though innocuous, simplicitor or punitive it has to go behind the fact and circumstances resulting to passing of the said order. The Court cannot wholly on the basis of words used of termination come to the conclusion that order of termination was simplicitor. Petitioner sufficiently demonstrated in the writ petition that he never submitted forged certificate, as such is punitive in nature as no enquiry has been held, therefore, liable to be quashed. Hence, the present writ petition.

(3.) The writ petition was entertained and interim order has been granted and petitioner in pursuance of the interim order was working.