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PETITIONER:

NAR SINGH PAL

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 28/03/2000

BENCH:

R.P.Sethi, S.S.Ahmad

JUDGMENT:

S.SAGHIR AHMAD, J.

Leave granted. The appellant, who was engaged as

casual labour in October, 1982 by the Telecom Department at

Agra, had worked continuously as such for more than ten

years and had also acquired `temporary' status, was

prosecuted for an offence, under Section 324, 427 and 504

IPC, said to have been committed on 20.4.1992. The trial

dragged on for many years and ultimately by judgment and

order dated 27.2.1998 passed by the Chief Judicial

Magistrate, Agra, he was acquitted, but in the meantime, by

order dated 20.5.1992, his services were terminated against

which he made a representation to the General Manager,

Telecom Department, G.M.T. Office, Lucknow, on 21.7.1992

but the representation was not heeded to and, therefore, the

appellant filed a petition before the Central Administrative

Tribunal, Principal Bench, New Delhi (for short, `the

Tribunal'), on 25.8.1992 which was dismissed on 4.12.1997.

The order of the Tribunal was challenged in a Writ Petition

filed in the Delhi High Court but the High Court, by its

order dated October 30, 1998, dismissed the Writ Petition.

The order dated 20.5.1992 by which the services of the

appellant were terminated reads as under:- "To Shri Nar

Singh Pal, Casual Employee, S/o Shri Hari Prasad, Village

Sarai Jairam, P/O Barhan, Distt. Agra. Letter - D.E.

Planning (Admn) N.S. Pal/92-93/5 dated 20.5.92. Dear, You

had beaten with iron article and had bitten with teeth to

Shri Mahender Singh, son of Shri Ratan Singh, gateman, Tax

Bhawan, Agra on 20.4.92 in the evening at 8.00 P.M. who was

on duty. Due to the above-said conduct, you are not

deserved/competent to be in the Govt. service any more and

you are casual employee. Therefore, your services are

terminated with immediate effect. Nevertheless, you are

being paid Retrenchment benefit. The under- mentioned

cheque is being annexed with this letter: Sd/- D.E. PHONE

(ADM) TELECOM DISTT. AGRA - 282001. ANNEXURE - ONE CHEQUE

Cheque No.13 425777 Dt. 19.5.92 Bank - State Bank of India,

Agra. Rs.6350/- (Six thousand three hundred fifty only)"

This order, ex facie, is punitive in nature. It was,

therefore, contended before the Tribunal that the services

of the appellant could not be terminated without holding a

regular departmental enquiry. The question was dealt with

by the Tribunal as follows:- "4. After perusing the record

and considering the rival arguments, we are of the view that

the respondents could either initiate departmental enquiry

against the applicant for the alleged misconduct, or

terminate his services by payment of retrenchment

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compensation, overlooking the misconduct alleged against

him. In the present case, the retrenchment compensation was

paid and it appears that the same was accepted by encashing

the cheque by the applicant. Accordingly, he cannot now be

allowed to urge that the termination was bad because there

was no enquiry into the alleged misconduct against him. 5.

From the allegations made in para 4 of the application, we

find that a report was also lodged against the applicant

with the Police in respect of the same incident and a case

was registered against him for offences under Sections 324,

427 and 504 IPC. The applicant was also arrested and a

chargesheet was filed against him in the court. The case

was pending on the date of the application and we do not

know what happened to the prosecution thereafter, but it

appears that there was prima facie some material against the

applicant to hold that his services were not satisfactory

and to retrench his services on that basis. Accordingly for

the aforesaid reasons, we find no merit in this OA and it

deserves to be dismissed." The reasoning of the Tribunal is

fallacious. If an order had been passed by way of

punishment and was punitive in nature, it was the duty of

the respondents to hold a regular departmental enquiry and

they could not have terminated the services of the appellant

arbitrarily by paying him the retrenchment compensation.

The observation of the Tribunal that the respondents had a

choice either to hold a regular departmental enquiry or to

terminate the services by payment of retrenchment

compensation is wholly incorrect. The appellant, no doubt,

was a casual labour but as observed by the Tribunal, he had

acquired temporary status with effect from 1.10.1989. Once

an employee attains the `temporary' status, he becomes

entitled to certain benefits one of which is that he becomes

entitled to the constitutional protection envisaged by

Article 311 of the Constitution and other Articles dealing

with services under the Union of India. A perusal of the

impugned order by which the services of the appellant were

terminated indicates that since the appellant had beaten one

Mahender Singh with iron rod and had also bitten him with

teeth on 20.4.1992 at 8.00 P.M. while the said Mahender

Singh was on duty as Gateman, Tax Bhawan, Agra, therefore,

his services were terminated with immediate effect. Thus

the services were terminated on account of the allegation of

assault made against the appellant. This Court on 24.1.2000

passed the following Order:- "Learned counsel appearing for

the respondents is granted six weeks' time to seek

instructions whether regular departmental proceedings were

taken in this matter or not." When the case was next taken

up, the entire papers relating to the enquiry were placed

before us by the counsel for the respondents which indicate

that a regular departmental enquiry was not held and only a

preliminary enquiry was held against the appellant on the

basis of which his services were terminated. The letter

dated 21st of April, 1992, from Assistant Engineer Trunks,

T.M.X. Tax Bhawan, Agra-3, to Shri Shital Din, Divisional

Engineer, Phones (Planning & Administration), Agra, recites,

inter alia, as under:- "Shri Nar Singh Pal, Ty.Mazdoor of

this unit assaulted on Shri Mahendra Singh, Gate Man who was

on duty at Main gate of Tax Bhawan, Agra and was performing

14.00 to 22.00 hrs duty on 20.4.92. This mishappening

occurred at 20.00 hrs. on 20.4.92. At the time of

incident, I was in Trunk Exchange, Agra, when Shri Mahendra

Singh, Gate Man approached to the undersigned in injured

condition for help. I rushed to the gate of Tax Bhawan for

spot verification and making detailed enquiry of the case.

I found that the culprit Shri Nar Singh Pal was abusing Shri

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Mahendra Singh, Gateman. Shri Nar Singh Pal, Ty. Mazdoor

not only assaulted on Shri Mahendra Singh, Gateman but he

also threatened to kill me when I was making spot enquiry.

As per my observation Shri Nar Singh Pal, Ty. Mazdoor was

under drunk condition. I immediately informed to you and

thereafter S.O. Rakabga Police Station on phone regarding

this incidence." The letter further recites as under:- "I

shall be grateful if you may kindly take a suitable action

against Shri Nar Singh Pal, Ty.Mazdoor who has created

hindrance in government work, damages of the government

property and created the terror and horror amongst the staff

due to his gunda activities and has threatened the

undersinged." The documents which have been placed before us

pertain to the preliminary enquiry made against the

appellant in which the statement of certain persons who had

seen the incident was recorded. The services of the

appellant were, thereafter, terminated by paying him the

retrenchment compensation through a cheque along with the

order dated 20.5.1992. The order having been passed on the

basis of preliminary enquiry and not on the basis of regular

departmental enquiry without issuing a chargesheet or giving

an opportunity of hearing to the appellant, cannot be

sustained. We may, at this stage, refer to the observations

of Krishna Iyer, J. in Gujarat Steel Tubes Ltd. vs.

Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593, in

which the learned Judge observed as under:- "53. Masters

and servants cannot be permitted to play hide and seek with

the law of dismissals and the plain and proper criteria are

not to be misdirected by terminological cover-ups or by

appeal to psychic processes but must be grounded on the

substantive reason for the order, whether disclosed or

undisclosed. The Court will find out from other proceedings

or documents connected with the formal order of termination

what the true ground for the termination is. If, thus

scrutinised, the order has a punitive flavour in cause or

consequence, it is dismissal. If it falls short of this

test, it cannot be called a punishment. To put it slightly

differently, a termination effected because the master is

satisfied of the misconduct and of the consequent

desirability of terminating the service of the delinquent

servant, is a dismissal, even if he had the right in law to

terminate with an innocent order under the standing order or

otherwise. Whether, in such a case the grounds are recorded

in a different proceeding from the formal order does not

detract from its nature. Nor the fact that, after being

satisfied of the guilt, the master abandons the enquiry and

proceeds to terminate. Given an alleged misconduct and a

live nexus between it and the termination of service the

conclusion is dismissal, even if full benefits as on simple

termination, are given and non-injurious terminology is

used." ( Emphasis supplied ) Applying the above principles,

the order in the instant case, cannot be treated to be a

simple order of retrenchment. It was an order passed by way

of punishment and, therefore, was an order of dismissal

which, having been passed without holding a regular

departmental enquiry, cannot be sustained. Learned counsel

for the respondents contended that the appellant was

involved in a criminal case having assaulted Mahendra Singh,

Gateman, at the Tax Bhawan, Agra and, therefore, his

services could be terminated in terms of Section 25-F of the

Industrial Disputes Act by a notice in writing together with

retrenchment compensation which admittedly was paid to him

through the cheque regarding which the Tribunal has recorded

a finding that it was encashed by the appellant. The fact

that the appellant was involved in a criminal case is not

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disputed by the appellant. What is contended by him is that

he was ultimately acquitted by the court of Chief Judicial

Magistrate, Agra and, therefore, involvement of the

appellant in a criminal case could not have been made the

basis for terminating his services. Since the appellant was

acquitted, and it was a clean acquittal, the stigma attached

to him of having been prosecuted in a criminal case should

have been treated to have disappeared and no argument can be

allowed to be raised for justifying the order of dismissal

on the ground of appellant's involvement in a criminal case.

The Tribunal as also the High Court, both appear to have

been moved by the fact that the appellant had encashed the

cheque through which retrenchment compensation was paid to

him. They intended to say that once retrenchment

compensation was accepted by the appellant, the chapter

stands closed and it is no longer open to the appellant to

challenge his retrenchment. This, we are constrained to

observe, was wholly erroneous and was not the correct

approach. The appellant was a casual labour who had

attained the `temporary' status after having put in ten

years' of service. Like any other employee, he had to

sustain himself, or, may be, his family members on the wages

he got. On the termination of his services, there was no

hope left for payment of salary in future. The retrenchment

compensation paid to him, which was only a meagre amount of

Rs.6,350/-, was utilised by him to sustain himself. This

does not mean that he had surrendered all his constitutional

rights in favour of the respondents. Fundamental Rights

under the Constitution cannot be bartered away. They cannot

be compromised nor can there be any estoppel against the

exercise of Fundamental Rights available under the

Constitution. As pointed out earlier, the termination of

the appellant from service was punitive in nature and was in

violation of the principles of natural justice and his

Constitutional rights. Such an order cannot be sustained.

For the reasons stated above, the appeal is allowed. The

judgment dated 4.12.1997, passed by the Tribunal as also the

judgment dated 30.10.1998, passed by the High Court, are set

aside and the claim petition of the appellant is allowed

with costs throughout. The order dated 20.5.1992, by which

the services of the appellant were terminated, is quashed

with the direction that the appellant shall be put back on

duty on the post which he held on 20.5.1992 and shall be

paid all the arrears upto date and other consequential

benefits admissible under the rule.