MOHIT KUMAR CHAUDHARY v. COMM. OF POLICE

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basic training at PTC Jharoda Kalan, New Delhi.

2.1 He, however, was issued a Show Cause Notice (SCN) as to why his services should not be terminated under Rule 5 (1) of Central Civil Services (Temporary Services) Rules, 1965 vide office order dated 26.05.2017 for his uncalled behaviour during his basic training period.

2.2 It was alleged in the said SCN that on 13.05.2017 at 1.35 a.m. a PCR call was received vide DD No.7A, PS Kamla Market regarding beating of police personnel in front of Kotha No.64, G.B. Road. The said call was marked to ASI Gajpal, No.5570/C, who along with HC Rajiv, No.713/C reached the spot.

2.3 On enquiry, it was revealed that 3-4 persons have manhandled three police constables who were on duty and some public persons came forward in support of beat staff. All beat officers and alleged police officials were got medically examined at LNJP Hospital, Delhi.

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2.4 On perusal of all relevant documents on record, it was revealed that all the alleged persons were friends and gathered at the residence of constable Sumit Sharma, i.e., at quarter No.A-25, Police Colony, Hauz Khas, Delhi where they consumed alcohol and thereafter went to Kotha No.64 and found it closed.

2.5 When the Kotha staff refused to open the gate, the alleged persons started quarrelling with them. However, on disclosure of their identity as police officials, gate was opened. The alleged police officials were tried to be convinced that Kotha is closed and were requested to return but they entered the Kotha and started abusing and quarrelling with the Kotha staff.

2.6 On receipt of information, constable Deep Ram of PS Kamala Market reached the spot and tried to pacify the matter, but the alleged persons misbehaved and abused him also. However, he managed to take them down stairs. After that constables Sumit and Jitender also came there and all of them tried

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to pacify the alleged persons but they continued quarrelling with the beat officers. The applicant was one of the members of the group and a case FIR No.120/17 dated 25.05.2017 under Sections 186/153/332/34 IPC PS Kamla Market, Delhi was registered against him and others.

2.7 The applicant received the copy of the SCN on 26.05.2017 with the direction to submit his written representation within 30 days from the date of its receipt, otherwise it will be presumed that he has nothing to say in his defence and orders will be passed on its merit, i.e., ex-parte.

2.8 The applicant made representation against the SCN on 23.06.2017 to Principal, PTC, Jharoda Kalan, whereby seeking extension of 30 days' time on the ground that he has applied for a few RTIs, answers of which are awaited and also that he is not in a normal mental state to response appropriately at this moment.

2.9 He prepared his reply on 10.07.2017 to SCN and in order to file the same, submitted it

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to Inspector Surender Singh on the same day around 2.30 p.m. The applicant till the time of filing the reply on 10.07.2017 has neither received any communication regarding denial of extension of time for filing the reply nor any order of termination. He, however, continued to mark his attendance in the PTC Jharoda Kalan, till 10.07.2017.

2.10 However, on 10.07.2017 at 2.30 p.m. he received an order dated 06.07.2017, whereby the extension of time for filing reply to SCN was denied. To the utter surprise of applicant he was served with termination order dated 7.7.2017 on 10.07.2017 at 6.30 p.m. It is obvious that the termination order dated 7.7.2017 has been passed without considering the reply filed by the applicant to the SCN in violation of principles of natural justice.

2.11 The applicant filed a statutory appeal against the SCN dated 26.05.2017 and order of termination dated 7.7.2017. However, vide order dated 24.07.2018 his representation has been rejected. The Appellate Authority (AA) recorded that even a Preliminary Enquiry (PE)

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has been conducted by ACP, Kamla Market and the said disclosure statement is relied in order to adjudge that the alleged misconduct has been committed by applicant and on the basis of same, the present order of termination has been passed.

2.12 Mr. Sachin Chauhan, learned counsel for the applicant has argued that the sole basis for adjudging the suitability of the applicant is the alleged misconduct and as such the termination order is punitive and thus protection under Article 311 has to be given to the applicant. He has to be subjected to a Departmental Enquiry (DE) before taking any punitive action in respect of allegation levelled against the applicant. The AA has taken into consideration an extraneous allegation in respect of DE which was kept in abeyance on the allegation of entering in the female trainee barrack, even though he was on leave on the date of incident. The same act makes the order of AA as bad in law as the same is based on extraneous facts and allegations which were not part of allegation contained in the SCN.

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3. Mr. Chauhan, learned counsel appearing for the applicant, has further submitted that the co-delinquent, i.e., Constable (Exe.) Nitesh Kumar, who was dismissed from service by invoking Article 311

(2) (b) of the Constitution of India vide order dated 26.05.2017 and his appeal was rejected vide order dated 16.10.2017, filed OA No.4324/2017, which was allowed by this Tribunal vide order and judgment dated 26.02.2019. He was reinstated in service vide order dated 08.05.2019 and was placed under deemed suspension. The suspension was revoked vide order dated 20.02.2020. He was dealt with departmentally vide order dated 01.06.2020 and the DE culminated into an order of punishment of forfeiture of five years' approved service permanently entailing proportionate reduction in his pay. The said punishment was challenged before this Tribunal in OA No.732/2023.

3.1 Mr. Chauhan has further submitted that another co-delinquent Const. Sumit Sharma, who was also dismissed from service

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under Article 311 (2)(b) of the Constitution challenged the dismissal order before this Tribunal in OA no.1383/2020, which was allowed by the Tribunal vide judgment and order dated 10.02.2022. The DE against Shri Sumit Sharma is going on.

3.2 The learned counsel has further submitted that the applicant is terminated from service solely on the allegations of misconduct which are subject matter of FIR No.120/2017 dated 25.5.2017 under Section 186/353/332/ 34 IPC PS Kamla Market, Delhi and order of initiation of DE dated 14.6.2017, which is totally false and on the contrary the applicant is falsely implicated in criminal case and further the allegation is being made with the sole intent to deprive the applicant of his employment.

3.3 Mr. Chauhan reiterated that the AA in its order dated 24.7.2018 has recorded that even a PE has been conducted by ACP, Kamla Market and the so called disclosure statement is being relied in order to adjudge that the alleged misconduct has been committed by

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applicant and on the basis of the same the order of termination has been passed thus making the order dated 24.7.2018 bad in law. The sole basis for adjudging the suitability of applicant is the alleged misconduct and thus the order of termination from service is punitive and hence protection of Article 311 has to be given to the applicant and he is required to be subjected to a regular DE before taking any punitive action in respect of the allegation levelled against him. Further, the AA has taken into consideration an extraneous allegation which makes the order of the AA bad in law, being based on extraneous facts and allegation which were not part of allegation of

SCN.

3.4 The learned counsel further submitted that the applicant cannot be deprived of the protection given under Article 311 of the Constitution of India despite the fact that the order of termination is solely based on the alleged misconduct, in respect of which no opportunity to defend himself has been given

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by the respondents as per laid down departmental rules and regulations.

3.5 The learned counsel submitted that the termination of the applicant is founded on the allegation of misconduct and for that reason the order of termination is definitely punitive and the order of termination from service is not based on general unsuitability of the applicant for the post held by him. The punitive action against him can be taken only by holding a regular DE and in the present case no DE has been conducted thereby depriving the applicant of an opportunity to defend the charge levelled against him. The impugned termination order is not simpliciter in nature for the reason the same is based on the finding that the applicant has committed a misconduct, that too, on the basis of the enquiry conducted by the respondents and for that reason even the veil may not be required to be lifted to see as to whether the punishment order is stigmatic in nature. In support of his plea, the learned counsel has relied on the order passed on his

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representation against the impugned termination order dated 07.07.2017, which reads as follows:

" Considering the gravity of misconduct committed by the representationist, under CCS (Temp. Service) Rules, 1965, it was not felt necessary to initiate a DE, as he was appointed as temporary Sub-Inspector in Delhi Police. Besides this, before initiation of any action, an inquiry was got conducted by ACP/Kamla Market and the statements of representationist and others were recorded. The case FIR No.120/17 was registered after the enquiry report of ACP/Kamla Market. All the four alleged persons in their statements recorded during enquiry have accepted the allegations of consuming alchhol/beer and visiting G.B. Road in the late hours of night. Apart from this, a regular DE was also initiated against him by Principal, PTS vide order No.1416-46/HAP-PTC (DA-II) dated 14.06.2017 on the allegations of entering in the female trainee barrack, even though he was on leave on the day of incident. The said DE was kept held in abeyance vide order dated 26.07.2017 due to termination of his services. These two incidents within a short span of time, i.e., only two years of service speak volumes about his indiscipline and lack of suitability to continue in a disciplined force like Delhi Police."

3.6 The learned counsel further referred to the termination order passed by the Disciplinary Authority (DA), whereby while punishing the applicant the DA has referred to Clause 14 (vi) of S.O. No.16/2010 which clearly envisages that the Principal-PTC/Vice Principal-PTC shall be the competent authority to pass order regarding termination of service on any ground which adversely reflects on the

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behavior of a trainee who is otherwise found unsuitable for police service.

3.7 The learned counsel further relied upon an order passed by this very Bench where both of us [Mr. R.N. Singh, Member (J) & Mr. Sanjeeva Kumar, Member (A) were members) in OA No.660/2017, where a similar controversy came up for consideration before the Tribunal. The relevant part of the order reads as follows:

"13. Now the issue, which arises for adjudication as to whether the order of termination of the services of the applicant in the case in hand is an order of termination simpliciter or punitive/stigmatic, is put to rest by the respondents themselves through the appellate authority's order which is admittedly final order of the respondents in respect of termination of the applicant's services in as much as it is recorded in para 3 that 'Recruit Constable Devender Singh, No.30598/PTC was a habitual absentee and absenteeism in a disciplined force like Delhi Police amounts to a serious misconduct as availability of such type of personnel always remains doubtful…… Absenteesim in the force is a very serious matter as it cripples the entire administration of the police department. It is a serious misconduct on the part of delinquent recruit constable which calls for an exemplary punishment.' Further in para 2 of the counter reply, the respondents have asserted as under:-

"2. That he was directed to join Police Training School, Wazirabad, Delhi for his basic induction course with the ongoing batch No.96. During his short span of training since 04.10.2012 to the date of termination of his services i.e. 11.01.2013 he remained absent from his basic training on 05 occasions. This act of the above Recruit Constable was

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amount to highly in disciplined, un-devoted trainee and not likely to become a good Police officer. He was not considered fit to be retained in the Police force being a habitual absentee as retention of this type of incompetent persons in the Police Force creates bad impression amongst the other fellow trainees."

14. From the aforesaid, it is evident that while deciding as to whether the termination of a probationer is termination simpliciter or a punitive, the Tribunal can travel beyond the order of termination to find out what is the reality of the background and foundation of the order of termination.

15. In view of the aforesaid, it is undisputed that the impugned order of termination has merged into the appellate authority's order dated 22.5.2013 and the appellate authority's order is apparently stigmatic & punitive and the same is not permissible in the absence of a regular departmental enquiry in accordance with the law. So far the Judgment of the Hon'ble Apex Court in Rajesh Kohli (supra) relied upon by the learned counsel appearing for the respondents is 18 OA No.660 of 2017 concerned, in the said case, the petitioner was recommended by the Hon'ble High Court of Jammu and Kashmir for appointment as District and Session Judge on temporary basis and on acceptance of such recommendations by the Government, an order of appointment was issued to him. In the said case, two orders were challenged, one which was the order of the Hon'ble High Court passed on the basis of resolution of the Full Court and other one issued by the Government of Jammu and Kashmir, on the ground that they were stigmatic ones. In para 23, the Hon'ble Apex Court ruled that the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. The Hon'ble Apex Court ruled that such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought by the petitioner. Nowhere in the said Judgment, the Hon'ble Apex Court has ruled that even if foundation of the order of termination passed under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965, is a misconduct, interference by the Court(s) and Tribunal(s) is not warranted.

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16. In view of the aforesaid facts and discussion, the impugned orders dated 11.01.2013 (Annexure A-1) and 22.5.2013 (Annexure A-2) are set aside. The applicant shall be reinstated in service subject to his medical fitness as expeditiously as possible and in any case, not later than six weeks from the date of receipt of a copy of this Order. The applicant shall be entitled for consequential benefits, i.e.., seniority, fixation of pay, however, only on notional basis and the respondents shall pass necessary order(s) in this regard and release the benefits, if any, as expeditiously as possible and preferably within eight weeks. However, the respondents shall be at liberty to initiate enquiry proceedings and conclude the same in accordance with the relevant rules and instructions, if they so decide.

17. The present OA is allowed in the aforesaid terms. However, in the facts and circumstances, there shall be no order as to costs."

3.8 To further strengthen his plea, Mr. Chauhan has relied on the following decisions of the Hon'ble Supreme Court and Hon'ble High Court of Delhi:

i) Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, (1999) 3 SCC

60.

ii) Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Ors., Civil Appal No.8662 of 2015, decided on 15.10.2015.

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iii) State Bank of India & Ors. v. Palak Modi & Ors., Civil Appeal Nos.7841-7843 of 2012, decided on 03.12.2012.

iv) Decision of the Hon'ble High Court of Delhi in S.S. Mota Singh Jr. Model School v. Tanjeet Kaur and Anr., W.P. (C) No.6284/2012, decided on 07.07.2015.

v) Decision of the Hon'ble High Court of Delhi in Lalita Kumari v. Delhi Social Welfare Board & Anr., W.P. (C) No.944/2020, decided on 25.02.2021.

4. On the other hand, Mr. Yash Aggarwal learned counsel for Ms. Sarita Aggarwal, appearing for the respondents, has vehemently opposed the claim of the applicant. It is submitted that the applicant was served with a copy of the SCN dated 26.05.2017 with the direction to submit his written representation within 30 days from the date of receipt, otherwise it will be presumed that he has nothing to say in his defence and orders will be passed ex-parte. The applicant, instead of submitting his representation against the SCN for termination from service sought 30 days

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more time on flimsy grounds vide his application dated 23.06.2017 and thereafter also adopted dilatory tactics on one pretext or the other, which cannot be considered, as there is no provision in Rule 5 (1) of CCS (Temporary Service) Rules, 1965 to extend the time to file reply to the SCN. He was informed accordingly vide office U.O. letter dated

06.07.2017.

4.1 It is further submitted that the competent authority, after considering all the facts, material available on record and circumstances of the case, terminated the services of the applicant, invoking the provisions of Sub rule (1) of Rule 5 of CCS (TS) Rules, 1965, vide order dated 07.07.2017 for his grave misconduct. Aggrieved with the order of termination of service passed by the competent authority, the applicant has filed a representation to the competent authority, i.e., Commissioner of Police, Delhi on 3.8.2017. The competent authority considered the said representation and also heard the applicant in the Orderly Room and found that the plea

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taken by him is not tenable and consequently rejected his representation vide order dated 24.07.2018 and he was informed accordingly. Hence the plea of the applicant that his reply/representation to the SCN dated 26.5.2017 has not been considered before passing the impugned termination order does not hold any water. He has been given due opportunity to defend the charge levelled in the SCN. Now, he cannot complain that there is violation of principles of natural justice at the end of the respondents.

4.2 The learned counsel has argued that the impugned order dated 07.07.2017 is an order simpliciter and there is nothing stigmatic/punitive in the said order. He has, accordingly, argued that interference of this Tribunal is not warranted. With regard to the stigma alleged in the order dated 27.07.2018, he has argued that the said order, passed by the Commissioner of Police while dealing with the applicant's representation against the SCN dated 26.05.2017, is justified in terminating the services of the applicant keeping in view

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his misconduct. The learned counsel has also argued that during probation, the applicant was not found suitable to be continued and, therefore, his services were terminated by an order simpliciter. In support of his plea, the learned counsel appearing for the respondents has relied upon a decision of the Hon'ble Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and Ors., MANU/SC/0705/2001.

5. We have perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to and relied upon by the learned counsels for the respective parties carefully. We agree with the plea raised by the learned counsel for the applicant that the respondents have not complied with the principles of natural justice before passing the termination order as they have not taken into account the reply dated 10.07.2017 filed by the applicant to the SCN dated 26.05.2017. It appears that before the reply could be filed

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by the applicant they have already passed the termination order which is bad in law and liable to be quashed on this ground alone.

6. The issue raised by the applicant herein is no more res integra and is settled by the recent decision of a Division Bench of this Tribunal, comprising both of us [Mr. R.N. Singh, Member (J) & Mr. Sanjeeva Kumar, Member (A)) which has considered a similar controversy in Virender v. Govt. of NCTD & Ors., OA No.1879/2017, decided on 02.06.2023 and Satyender v. Govt. of NCTD & Ors., decided on 02.06.2023. After considering the various decisions of the Hon'ble Supreme Court, Hon'ble High Courts and this Tribunal, the Tribunal in Satyender (supra) held as follows:

"6. Reliance placed by Mr. Luthra on the decision of the Hon'ble Supreme Court in Ratnesh Kumar Choudhary (supra) has been considered by a Coordinate Bench of this Tribunal, along with few other cases, titled Capt. Yashraj Tongia v. Union Of India, OA No.2470/2015, in its order dated 08.02.2013. In para-10, the Coordinate Bench has ruled as under:

"10. The Apex Court in Mathew P. Thomas v Kerala State Civil Supply Corpn. Ltd. & others [(2003) 3 SCC 263], in para 11 held as follows:

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"….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. If the form and language of the so- called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct."

The above observation of the Apex Court makes it clear that while deciding whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality is the background and what weighed with the employer to terminate the services of the probationer."

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7. The Hon'ble High Court of Delhi has considered a similar controversy in Nina Lath Gupta, 2023:DHC:2944. The relevant parts of the judgment read as follows:

"27. Therefore, what emerges from the conspectus of the aforesaid judgments is that if an order is founded on allegations, the order is stigmatic and punitive and services of an employee cannot be dispensed with without affording him an opportunity of defending the

accusations/allegations made against him in a full-fledged inquiry. Since this case relates to a tenure appointment, it will be pertinent to look at the law with respect to stigmatic orders in the context of tenure appointments. In Dr. L.P. Agarwal v. Union of India and Others, (1992) 3 SCC 526, Petitioner was Director, AIIMS, who had been appointed for a period of 5 years or till he attained the age of 62 years, whichever was earlier, the Supreme Court examined the meaning and connotation of the term 'tenure' and observed that tenure is a term during which an office is held. It is a condition of holding office and once a person is appointed to a tenure post, his appointment begins when he joins and comes to an end on completion of the tenure, unless curtailed on 'justifiable' grounds. Such a person does not superannuate, he only goes out of office on completion of his tenure and thus, the question of prematurely retiring him does not arise. In A.P. State Federation of Coop. Spinning Mills Ltd (supra), Respondent was appointed as General Manager (Finance) for a period of 3 years and prior to the said period coming to an end, his services were terminated. Respondent approached the High Court in a writ petition seeking quashing of the order and the learned Single Judge dismissed the writ petition after coming to a conclusion that the termination order was innocuous and not penal in nature and termination being in accordance with the contract of service, after giving three months' salary in lieu of the notice, required no interference. The Division Bench, allowing the appeal held that though the order on the face of it appeared to be innocuous, however, if the attendant

circumstances were examined, more particularly, the stand in the counter affidavit, the conclusion was irresistible that the order was penal in nature

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and since penalty was imposed without affording opportunity to meet the charge, the order was unsustainable. This order of the Division Bench was challenged before the Supreme Court and the contention of the Appellant was that the reasons indicated in the order were the motive for termination and not the foundation, requiring an inquiry, prior to termination. The Supreme Court upheld the order of the Division Bench, to the extent that the order of termination was vitiated and ruled as follows:-

"3. The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. But the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or formed the foundation for the same order. If the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. The decisions of this Court relied upon by Mr K. Ram Kumar also stipulate 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 for passing the order of termination, and it is in that sense in the counter-affidavit it can be indicated that the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. But on examining the assertions made in paras 13 and 14 of the counter- affidavit, in the present case it would be difficult for us to hold that in the case in hand, the appellant-employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question.

4. In fact, the letter of the Commissioner for Handlooms and Director of Handlooms and Textiles dated 19-5-1993 was the foundation for the employer to terminate the services and as such the Division Bench of the Andhra

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Pradesh High Court was justified in holding that the order of termination is based upon a misconduct, though on the face of it, it is innocuous in nature. We therefore do not find any infirmity with the said conclusion of the Division Bench of the Andhra Pradesh High Court requiring our interference."

xxx xxx xxx

29. Another judgment, which needs a mention and is close on facts, is in the case of Dr. Vijayakumaran C.P.V. v. Central University of Kerala and Others, (2020) 12 SCC 426, wherein the Supreme Court observed that the termination order was issued in the backdrop of Internal Complaints Committee Report and going by the terms and tenor of the order, it was incomprehensible to construe such an order to be an order simplicitor when the report of the Inquiry Committee was the foundation. The Supreme Court also reiterated the position of law that the material which amounts to stigma need not be contained in the termination order and may be in any document referred to therein, which reference will inevitably effect the future prospects of the incumbent and if so, the order must be construed as an ex facie stigmatic order of termination."

8. Further the Hon'ble High Court of Allahabad in Vijay Raj v. Union of India, Writ A. No.63968 of 2005, decided on 05.03.2020, has considered the law laid down by the Hon'ble Apex Court in a catena of decisions, including in a few Constitution Bench judgements and ruled in paras 61 and 62 as follows:

"61. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under :

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(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution.

(b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences.

(c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order.

(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct.

(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.

(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping.

"Motive" is the moving power, which impels action for a definite result, or to put it differently. "Motive"

is that which incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.

(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not.

(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.

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(i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.

(j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive.

(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.

(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.

(m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive

(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.

(o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive.

i. "want of application", ii. "lack of potential", iii.

"found not dependable", iv. "under suspension", v.

"work is unsatisfactory", vi. "unlikely to prove an efficient officer".

(p) Description of background facts also have not been held to be stigmatic.

(q) However, the words "undesirable to be retained in Government service", have been held stigmatic.

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(r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct,

(iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive.

62. The aforesaid are not exhaustive, but lay down some of the principles to find out whether termination of an employee is simplicitor or punitive. Each and every case has to be considered in the light of the facts and circumstances of the case, but broadly the aforesaid are the factors to find out whether termination of an employee is punitive or not."

9. The decision of the Hon'ble Supreme Court referred and relied upon by the learned counsel for the respondents in the case of Pavanendra Narayan Verma (supra) is also based on the above principles enunciated by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in the cases referred to hereinabove.

10. From the aforesaid judgment it stands settled that each and every case has to be considered in the light of the facts and circumstances of case, of course, broadly keeping in view the factors as recorded in the said judgment to find out whether the termination of an employee is punitive or not?

It also stands settled that while deciding

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whether the termination of a probationer is a termination simpliciter or punitive, the Tribunal can travel beyond the order of termination to find out what in reality weighed in the mind of the employer to terminate the services of the probationer.

11. From the judgment of the Hon'ble High Court of Delhi in Nina Lath Gupta (supra) it is settled that even if the order of termination of the probationer, on the face of it, appears to be innocuous and or order simpliciter, however, if the attending circumstances, more particularly the stand taken in the counter-affidavit, the conclusion was irresistible that the order was penal in nature and since the penalty was imposed without affording an opportunity to meet the charge, the order was not sustainable in the eyes of law.

12. In the aforesaid background, even if it is assumed that the impugned order dated 07.07.2017 is an order simpliciter, we are of the considered view that the impugned order of termination is founded

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on an act of specific misconduct of applicant and, therefore, the impugned termination order is found to be punitive and stigmatic. The same being passed without holding an enquiry and without following the principles of natural justice is not sustainable in the eyes of law.

13. In the result, having regard to the decisions of this Tribunal in Virender (supra) and Satyender and also for parity of reasons, the impugned SCN dated 26.05.2017, order of termination dated 07.07.2017 and order dated 24.07.2017, whereby the representation of applicant has been rejected, are set aside. The respondents are directed to reinstate the applicant in service, as expeditiously as possible, and preferably within six weeks of receipt of a certified copy of this order. The applicant shall be entitled to consequential benefits in accordance with the relevant rules and instructions on the subject. However, the respondents shall be at liberty to initiate disciplinary enquiry and or to take action in

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accordance with the relevant rules, if they so decide.

14. The OA stands partly allowed in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs.

(Sanjeeva Kumar) (R.N.Singh)

Member (A) Member (J)

'San.'