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CASE NO.:

Appeal (civil) 5452-5453 of 2004

PETITIONER:

Kendriya Vidyalaya Sangathan

RESPONDENT:

Arunkumar Madhavrao Sinddhaye & Anr.

DATE OF JUDGMENT: 31/10/2006

BENCH:

G.P. MATHUR & A.K. MATHUR

JUDGMENT:

J U D G M E N T

G. P. MATHUR, J.

These appeals, by special leave, have been preferred against the

judgment and decree dated 5.3.2002 of Bombay High Court by which

the second appeal preferred by the respondent Arunkumar Madhavrao

Sinddhaye was allowed and the suit filed by him was decreed setting

aside the order of termination of services dated 21.3.1975 and

directing his reinstatement with full back wages. The appellant

preferred a review petition before the High Court which was

dismissed on 3.11.2003 and the said order is also under challenge.

2. The respondent Arunkumar Madhavrao Sinddhaye was

appointed on a temporary post of Physical Education Teacher in the

Kendriya Vidyalaya Sangathan on 25.6.1974. His services were

terminated vide order dated 21.3.1975 in accordance with conditions

of appointment mentioned in the appointment order. He filed a suit

for a declaration that the order of termination of his services dated

21.3.1975 was illegal, inoperative and not binding upon him. The

main plea taken in the suit instituted by the respondent was that his

services had been terminated by way of punishment as an enquiry had

been held behind his back in which some witnesses were examined

and after completion of the enquiry, in which he had not been given

any opportunity to defend himself, a report was submitted against him

and on the basis of the said report his services were terminated. The

suit was defended by the appellant on several grounds and the

principal ground being that the services of the petitioner had not been

terminated by way of punishment, but in terms of the appointment

order. The learned Civil Judge (Jr. Division) Pune, dismissed the suit

vide judgment and decree dated 28.2.1986 and the appeal preferred by

the respondent against the said decree was also dismissed by VII

Additional District Judge, Pune, by the judgment and decree dated

28.4.1987. The second appeal preferred by the respondent was,

however, allowed by the High Court and the suit was decreed as

mentioned earlier.

3. Before adverting to the submissions made by learned counsel

for the parties, it will be convenient to set out the essential facts of the

case and the findings recorded by the High Court.

4. The relevant part of the appointment order issued in favour of

the respondent by Kendriya Vidyalaya Sangathan, Bombay Regional

Office on 25.6.1974 reads as under:-

"No.F.6-5/74/KVS(BR) Date : 25th June, 1974

MEMORANDUM

SUBJECT : Offer of appointment to the post of Physical

Education Teacher.

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With reference to his/her application for the above

post, the undersigned offers to Shri Arunkumar

Madhavrao Siddhaye, a temporary post of Physical

Education Tr. in the Kendriya Vidyalaya Sangathan on

an initially pay of .................................

2. ...................................................

3. The services of the appointee are terminable by

one month's notice on either side without any reasons

being assigned therefor. The appointing authority,

however, reserves the right of terminating the services

before the expiry of the stipulated period of notice by

making payment to the appointee of a sum equivalent to

the pay and allowances for the period of notice or the

unexpired portion thereof. .................................

4. If he/she accepts the offer on the terms and

conditions stipulated, he/she may please send his/her

acceptance to the undersigned within 7 days from the

receipt of this letter in the form attached and report for

duty to the Principal of the above mentioned Kendriya

Vidyalaya ......................................................."

The Assistant Commissioner, Kendriya Vidyalaya Sangathan,

Bombay Region issued an order on 21.3.1975 terminating the services

of the respondent with effect from 30.4.1975 and the said order reads

as under :

"Shri Arunkumar Madhavrao Siddhaye, PHT, KV, Dehu

Road is hereby informed that his services are no longer

required by the Sangathan with effect from 30.4.75

(A.N.). His services will therefore stand terminated with

effect from the above date as per terms and conditions of

appointment mentioned in the offer of appointment No.

F.4-5/74/KVS(BR) dated 25.6.74 issued to Shri Siddhaye

and the same duly accepted by him vide his letter dated

1.7.74. This may be treated as One Months' Notice.

Sd/-

( MADAN GOPAL )

Assistant Commissioner"

5. The principal ground taken by the respondent in the suit

instituted by him was that an enquiry had been conducted behind his

back in which a finding had been recorded against him and on the

basis of the said enquiry his services had been terminated and thus it

was not a simple order of termination of services but had been passed

by way of punishment, in complete violation of principles of natural

justice. It is, therefore, necessary to refer to the relevant facts in this

regard. One Capt. V.K. Balasubramanyam sent a letter to the Station

Commander, Dehu Road on 21.2.1975 stating that his son Master

V.K. Srinivasalu, who was studying in IXth Class had developed

serious chest pain on 18th February, 1975 and in spite of his having

informed that he was not well, the PT teacher made him to run six

rounds (approx. 4 kms) around the school. As the child was not well,

he was examined in the Military Hospital on 20th February and the

doctor prescribed him some medicines and gave a written advice that

he should not do P.T. or other exercises for a week. This was shown

to the class teacher who gave a note in writing to the PT teacher

exempting the child from PT and other exercises. In spite of doctor's

advice and written note of the class teacher, the PT teacher forced the

boy to do PT and being unable to do so, he was beaten. It was further

mentioned in the letter that this was not the only occasion when

corporal punishment had been meted out to the students by the

respondent as earlier also this fact had been brought to the notice of

the executive committee of the school by Lt. Col. G.V. Lucas and the

Principal had promised to stop the mal-practice as corporal

punishment was against the rules of the Central School. The Principal

of the school forwarded the complaint of Capt. Balasubramanyam to

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the Regional office of Kendriya Vidyalaya Sangathan, Bombay on

25.2.1975. The Assistant Commissioner, Kendriya Vidyalaya

Sangathan then wrote to the Principal on 1.3.1975 to send a report

along with original statements regarding the complaint of beating to

the students by the respondent. For the purposes of sending the

report an enquiry was conducted in which statements of eight students

including Master V.K. Srinivasalu were recorded. The Principal had

earlier asked for an explanation from the respondent vide his letter

dated 26.2.1975 which he had given. The statement of the students

was recorded in the presence of the respondent wherein he was

allowed to put questions to them. He was again asked to give his own

statement, which he refused to give. The enquiry officer then

submitted his opinion on 7.3.1975 and the same is being reproduced

below :-

OPINION OF THE ENQUIRY OFFICER

"Based on the evidence adduced above, I am of the

opinion that Shri SHIDE, PT Teacher, Central School,

DEHU Road has meted out corporal punishment to

Master VK Srinivasalu, Student IX Std. on 18 Feb. 75.

I further feel that he has been indulging in the practice

of meting out corporal punishment to students from

time to time with varying degrees of severity.

I recommend that disciplinary action be taken

against Shri Shide.

Sd/-

Enquiry Officer"

The Assistant Commissioner, Kendriya Vidyalaya Sangathan,

Bombay Region thereafter passed the impugned order on 21.3.1975

by which the respondent was informed that his services were no

longer required and the same shall stand terminated with effect from

30.4.1975.

6. The findings recorded by the High Court on the basis of which

the judgments and decrees passed by the two Courts below were set

aside and the second appeal preferred by the respondent was allowed

decreeing his suit, require to be noticed. In para 9, the High Court

has held :-

"9. ........... Furthermore it has been indicated by the

case itself that the order of termination of service was

after initiation of the enquiry in which articles of

imputation and charge were served on the appellant and

some witnesses were examined. It implicitly conveys the

information that the said enquiry was either not brought

or completed. Had that been completed, the

circumstances which were against the appellant would

have been put to him for the purpose of affording him an

opportunity of submitting his explanation to those

circumstances, otherwise there would not have been

order which would have been conveyed to the appellant

that the said enquiry was dropped. None of these two

things did happen and therefore, there is irresistible

conclusion coming up showing that the order of

termination of service of the appellant was nothing but

the result of said enquiry which was neither completed

legally nor dropped."

Again in para 11, the High Court held :-

"11. In the present case both the Courts below have

committed gross error of law in ignoring that the said

order of termination of service of the appellant followed

the said enquiry neither legally completed nor dropped.

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Had it been the case that the said enquiry was dropped

then there should have been some meaning to say that the

said order of termination of service was not carrying any

stigma. But in this case that is not so. Without

completion of that enquiry, service of appellant has been

terminated and the appellant has been put under dolour

by uncertainty of future. ......................................."

7. The learned counsel for the appellant Kendriya Vidyalaya

Sangathan has submitted that the enquiry held against the respondent

was not a disciplinary enquiry but was only in the nature of a

preliminary or fact finding enquiry. In fact the enquiry officer after

holding of the fact finding enquiry had himself recommended that

disciplinary action be taken against the respondent. However, instead

of taking disciplinary action, the appellant thought it proper to

terminate the services of the respondent in terms of the appointment

order as he was a purely temporary employee and his services were

terminable by one month's notice on either side without assigning any

reasons. Learned counsel for the appellant has further submitted that

the High Court has grossly erred in equating a preliminary or fact

finding enquiry with that of a regular disciplinary enquiry and in

coming to a conclusion that the services of the respondent had been

terminated by way of punishment. It has also been urged that the

termination order is a simple order passed in terms of the appointment

order and it is non-stigmatic and does not visit the respondent with

any evil consequences and in such circumstances the High Court

manifestly erred in setting aside the judgments and decrees passed by

the two Courts below and in decreeing the suit filed by the

respondent. Learned counsel for the respondent has, on the other

hand, submitted that on the basis of a complaint made by Capt. V.K.

Balasubramanyam regarding beating of his son, an enquiry had been

held wherein statements of students had been recorded and in these

circumstances the order terminating the services of the respondent

was based upon the result of the said enquiry and had been passed by

way of punishment. It has been urged that as the respondent had not

been afforded any opportunity to defend himself, there was complete

violation of principles of natural justice and as the order had been

passed by way of punishment it was wholly illegal and the High

Court, therefore, rightly decreed the suit filed by the respondent.

8. We have given careful consideration to the submissions made

by learned counsel for the parties and have also examined the material

on record. It may be mentioned, at the outset, that the respondent

was appointed as PT teacher in Kendriya Vidyalaya Sangathan and as

such he does not hold a civil post within the meaning of Article 311 of

the Constitution and the said provision does not apply to him. One of

the terms of the appointment order (offer of appointment) dated

25.6.1974 was that his services were terminable by one month's

notice on either side without assigning any reasons. The respondent

accepted the appointment order and joined duty and thereby accepted

the conditions of appointment, namely, that his services were

terminable by one month's notice without any reasons being assigned.

His services were terminated vide notice dated 21.3.1975 with effect

from 30.4.1975 in terms of the appointment order. The order

terminating the services of the respondent is a wholly innocuous order

and does not contain any stigma against him. It may also be noted

that the notice of termination of services was served upon the

respondent when he had put in less than 9 months of service.

9. The question which arises for consideration is, whether the

order of termination of services of the respondent had been passed by

way of punishment or it had been passed in accordance with the

conditions mentioned in the appointment order by which the

respondent had been appointed on a temporary post of Physical

Education Teacher. If it is found that the termination of services was

by way of punishment, another question may arise whether a formal

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departmental enquiry was held prior to the passing of termination

order and whether the respondent was given adequate opportunity to

defend himself in the said enquiry. It will be seen that the complaint

made by Capt. B.K. Balasubramanyam about forcing his son Master

V.K. Srinivasalu to do six rounds (4 Kms.) around the school when he

was having chest pain and was unwell and further forcing him to do

PT and other exercises in spite of advice of the doctor and also giving

him beating was forwarded by the Principal to the Regional Office of

Kendriya Vidyalaya Sangathan, Bombay. The Assistant

Commissioner of the Kendriya Vidyalaya Sangathan asked the

Principal to submit a report along with original statements of the

students, who had been subjected to beating by the respondent. The

Principal was not an eye witness of the incident relating to Master

V.K. Srinivasalu and also of the corporal punishment which was

awarded by the respondent to the other students. Therefore, in order

to ascertain the complete facts it was necessary to make enquiry from

the concerned students. If in the course of this enquiry the respondent

was allowed to participate and some queries were made from the

students, it would not mean that the enquiry so conducted assumed the

shape of a formal departmental enquiry. No articles of charges were

served upon the respondent nor the students were asked to depose on

oath. The High Court has misread the evidence on record in

observing that articles of charges were served upon the respondent.

The limited purpose of the enquiry was to ascertain the relevant facts

so that a correct report could be sent to the Kendriya Vidyalaya

Sangathan. The enquiry held can under no circumstances be held to

be a formal departmental enquiry where the non-observance of the

prescribed rules of procedure or a violation of principle of natural

justice could have the result of vitiating the whole enquiry. There

cannot be even a slightest doubt that the Assistant Commissioner,

Kendriya Vidyalaya Sangathan, Bombay Region, terminated the

services of the respondent in accordance with the terms and conditions

mentioned in his appointment order which expressly conferred power

upon the appointing authority to terminate the respondent's services

by one month's notice without assigning any reasons. The services of

the respondent were, therefore, not terminated by way of punishment.

10. A similar question was considered in considerable detail in

State of Maharashtra vs. Veerappa R. Saboji AIR 1980 SC 42, and it

was observed as under: -

"Ordinarily and generally the rule laid down in most of

the cases by this Court is that you have to look to the

order on the face of it and find whether it casts any

stigma on the Government servant. In such a case there

is no presumption that the order is arbitrary or mala fide

unless a very strong case is made out and proved by the

Government servant who challenges such an order."

In State of Uttar Pradesh and another vs. Kaushal Kishore Shukla

(1991) 1 SCC 691, the employee was appointed on ad hoc basis on

18.2.1977 as an Assistant Auditor and his employment was extended

on several occasions and the last extension was granted on 21.1.1980,

which was to expire on 28.2.1981. His services were terminated on

23.9.1980. The termination order was challenged on the ground that

certain allegations of misconduct had been made against him

regarding which an ex-parte inquiry was held wherein he was not

given any opportunity of hearing. The High Court accepted the plea

of the employee that the order of termination of services was founded

on the allegations of misconduct and the ex-parte equiry report and

accordingly quashed the termination order. This Court set aside the

judgment of the High Court with the following observations:-

"The respondent being a temporary government

servant had no right to hold the post, and the competent

authority terminated his services by an innocuous order

of termination without casting any stigma on him. The

termination order does not indict the respondent for any

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misconduct. The inquiry which was held against the

respondent was preliminary in nature to ascertain the

respondent's suitability and continuance in service.

There was no element of punitive proceedings as no

charges had been framed, no inquiry officer was

appointed, no findings were recorded, instead a

preliminary inquiry was held and on the report of the

preliminary inquiry the competent authority terminated

the respondent's services by an innocuous order in

accordance with the terms and conditions of his service.

Mere fact that prior to the issue of order of termination,

an inquiry against the respondent in regard to the

allegations of unauthorized audit of Boys Fund was held,

does not change the nature of the order of termination

into that of punishment as after the preliminary inquiry

the competent authority took no steps to punish the

respondent, instead it exercised its power to terminate the

respondent's services in accordance with the contract of

service and the Rules. The allegations made against the

respondent contained in the counter-affidavit by way of

defence filed on behalf of the appellants also do not

change the nature and character of the order of

termination."

In S.P. Vasudeva vs. State of Haryana and others AIR 1975 SC 2292,

it was held that where an order of reversion of a person who had no

right to the post, does not show ex facie that he was being reverted as

a measure of punishment or does not cast any stigma on him, the

courts will not normally go behind that order to see if there were any

motivating factors behind that order. Both these decisions have been

rendered by Benches of three learned Judges.

11. In Ravindra Kumar Misra vs. U.P. State Handloom Corporation

Ltd. and another AIR 1987 SC 2408, the appellant had been appointed

on 30.10.1976 and had got two promotions while still working in

temporary status and by 1982 he had been working as Deputy

Production Manager. On 22.11.1982 he was placed under suspension

and the suspension order recited that as a result of preliminary

inquiries made by the Central Manager it had come to notice that the

appellant was responsible for misconduct, dereliction of duty,

mismanagement and showing fictitious production of terrycot cloth.

The suspension order was revoked on 1.2.1983 and thereafter on

10.2.1983 a simple order terminating his services was passed reciting

that his services were no more required and his services would be

deemed to be terminated from the date of receipt of the notice. It was

further mentioned therein that he would be entitled to receive one

month's salary in lieu of notice period. The termination order was

challenged by the appellant on the ground that the same was punitive

in nature, which was also demonstrated from the fact that shortly

before the order of termination a suspension order had been passed

wherein a specific charge of misconduct against him was mentioned.

After referring to several earlier decisions this Court repelled the

challenge made by the employee by observing as under in paragraph 6

of the Report: -

"................In several authoritative pronouncements of

this Court, the concept of 'motive' and 'foundation' has

been brought in for finding out the effect of the order of

termination. If the delinquency of the officer in

temporary service is taken as the operating motive in

terminating the service, the order is not considered as

punitive while if the order of termination is founded upon

it, the termination is considered to be a punitive action.

This is so on account of the fact that it is necessary for

every employer to assess the service of the temporary

incumbent in order to find out as to whether he should be

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confirmed in his appointment or his services should be

terminated. It may also be necessary to find out whether

the officer should be tried for some more time on

temporary basis. Since both in regard to a temporary

employee or an officiating employee in a higher post

such an assessment would be necessary merely because

the appropriate authority proceeds to make an assessment

and leaves a record of its views the same would not be

available to be utilized to make the order of termination

following such assessment, punitive in character."

12. In Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of

Medical Sciences and another (2002) 1 SCC 520, after referring to

large number of earlier decisions, the law on the point has been very

clearly elucidated in the following manner :-

"One of the judicially evolved tests to determine

whether in substance an order of termination is punitive

is to see whether prior to the termination there was (a) a

full-scale formal enquiry (b) into allegations involving

moral turpitude or misconduct which (c) culminated in a

finding of guilt. If all three factors are present the

termination has been held to be punitive irrespective of

the form of the termination order. Conversely if any one

of the three factors is missing, the termination has been

upheld.

..........................................................................................

Generally speaking when a probationer's

appointment is terminated it means that the probationer is

unfit for the job, whether by reason of misconduct or

ineptitude, whatever the language used in the termination

order may be. Although strictly speaking, the stigma is

implicit in the termination, a simple termination is not

stigmatic. A termination order which explicitly states

what is implicit in every order of termination of a

probationer's appointment, is also not stigmatic. In order

to amount to a stigma, the order must be in a language

which imputes something over and above mere

unsuitability for the job."

13. In State of Punjab vs. Sukhwinder Singh (2005) 5 SCC 569, a

Bench of three learned Judges to which one of us was a party, after

referring to several earlier decisions of this Court including those

referred to above, laid down the principle as under in para 19 of the

report :

"19. It must be borne in mind that no employee whether

a probationer or temporary will be discharged or

reverted, arbitrarily, without any rhyme or reason.

Where a superior officer, in order to satisfy himself

whether the employee concerned should be continued in

service or not, makes inquiries for this purpose, it would

be wrong to hold that the inquiry which was held, was

really intended for the purpose of imposing punishment.

If in every case where some kind of fact finding inquiry

is made, wherein the employee is either given an

opportunity to explain or the inquiry is held behind his

back, it is held that the order of discharge or termination

from service is punitive in nature, even a bona fide

attempt by the superior officer to decide whether the

employee concerned should be retained in service or not

would run the risk of being dubbed as an order of

punishment. The decision to discharge a probationer

during the period of probation or the order to terminate

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the service of a temporary employee is taken by the

appointing authority or administrative heads of various

departments, who are not judicially trained people. The

superior authorities of the departments have to take work

from an employee and they are the best people to judge

whether an employee should be continued in service and

made a permanent employee or not having regard to his

performance, conduct and overall suitability for the job.

As mentioned earlier a probationer is on test and a

temporary employee has no right to the post. If mere

holding of an inquiry to ascertain the relevant facts for

arriving at a decision on objective considerations whether

to continue the employee in service or to make him

permanent is treated as an inquiry "for the purpose of

imposing punishment" and an order of discharge or

termination of service as a result thereof "punitive in

character", the fundamental difference between a

probationer or a temporary employee and a permanent

employee would be completely obliterated, which would

be wholly wrong."

14. As shown above, the nature of enquiry conducted against the

respondent was merely a preliminary or fact finding enquiry and no

formal full scale departmental enquiry had been conducted against the

respondent. In fact, the enquiry officer had himself recommended that

disciplinary action be taken against the respondent. However, the

authorities chose not to hold a disciplinary enquiry against the

respondent and did not serve him with any article of charges or take

any further steps in that regard. Instead they chose to exercise power

under the terms and conditions of the appointment order. The

termination order is wholly innocuous and does not cast any stigma

upon the respondent nor it visits him with any evil consequences. The

High Court seems to have proceeded on a wholly wrong basis and has

treated the enquiry which was only a preliminary or fact finding

enquiry into a regular disciplinary enquiry, which was not the case

here. In these circumstances the judgment of the High Court is

wholly erroneous in law and has to be set aside.

15. Learned counsel for the respondent has relied upon Samsher

Singh vs. State of Punjab & Anr. (1974) 2 SCC 831, Bishan Lal Gupta

Vs. State of Haryana & Ors. (1978) 1 SCC 202, Anoop Jaiswal Vs.

Government of India & Anr. (1984) 2 SCC 369 and Dipti Prakash

Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences,

Calcutta & Ors. (1999) 3 SCC 60 in support of his submission that the

impugned order of termination of services had been passed by way of

punishment and as the same had been done without affording an

opportunity of defending himself, the termination order was illegal.

In Bishan Lal Gupta (supra) it was held where the intention behind an

inquiry against a probationer was not to hold a full departmental trial

to punish but a summary inquiry to determine only suitability to

continue in service of the probationer and the probationer was given

ample opportunity to answer in writing whatever was alleged against

him in show cause notice, the innocuous order of termination

following such summary inquiry could not be said to be an order of

punishment which entitled him to a full-fledged inquiry contemplated

by Article 311 of the Constitution. In Anoop Jaiswal (supra) and

Dipti Prakash Banerjee (supra) it was found as a fact that the

misconduct alleged was the foundation of the impugned order of

termination of services. It was after analysis of all earlier decisions

that the principle of law has been laid down in Pavanendra Narayan

Verma vs. Sanjay Gandhi PGI of Medical Sciences, referred to above.

Therefore, the authorities cited by learned counsel for the respondent

do not advance his case in any manner.

16. In the result, the appeals are allowed and the judgment and

decree dated 5.3.2002 passed in Second Appeal No.463 of 1988 and

also the order dated 3.11.2003 passed in review petition by the High

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Court are set aside. The decrees passed by the two Courts below

dismissing the suit filed by the respondent are affirmed. No order as

to costs.