http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

PETITIONER:

OM PRAKASH GOEL

Vs.

RESPONDENT:

HIMACHAL PRADESH TOURISM DEVELOPMENT CORPORATION LTD. SHIMLA

DATE OF JUDGMENT06/05/1991

BENCH:

REDDY, K. JAYACHANDRA (J)

BENCH:

REDDY, K. JAYACHANDRA (J)

PANDIAN, S.R. (J)

CITATION:

1991 AIR 1490 1991 SCR (2) 701

1991 SCC (3) 291 JT 1991 (3) 6

1991 SCALE (1)892

CITATOR INFO :

D 1992 SC 496 (26)

ACT:

Civil Service:

Constitution of India, 1950: Articles 311(2), 14 and

16-Termination of service by simple notice after conducting

enquiry-Whether in the nature of camouflage and by way of

punishment-Juniors retained in service but senior's service

terminated-Whether arbitrary and discriminatory.

Himachal Pradesh Tourism Development Corporation Staff

Regulations: Regulation 19(3)(b) and 39-Termination of

service-Allegations of misconduct-Enquiry conducted-Order

terminating service by simple notice passed-Whether valid-

Whether in the nature of camouflage and by way of

punishment-Senior's service terminated while retaining

juniors in service-Whether arbitrary and discriminatory-

Employee practising as lawyer since termination-Whether

entitled to backwages on reinstatement.

HEADNOTE:

A charge sheet was issued to the petitioner, a directly

recruited Accountant in the respondent Corporation alleging

that while working in the Transport Wing of the Corporation,

he facilitated and abetted the embezzlement of Rs.100 by not

ensuring that the amount found was in excess, and thus he

failed to serve the Corporation honestly and faithfully,

that he made some fictitious entries in the Cash Book and

that he made certain information public without the

permission of the Managing Director. The petitioner replied

that all the charges were fake and false. the leave

sanctioned to the petitioner earlier for prosecuting legal

study was canceled and the petitioner challenged the same in

the High Court but the case was adjourned. Meanwhile, the

petitioner's services were terminated on the ground that he

was no longer required and that one month's pay in lieu of

notice would be paid in terms and conditions of his

appointment letter and provisions of Staff Regulations of

the Corporation. The petitioner challenged the same before

the High Court, but the Writ Petition was dismissed in

limine.

702

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

In the appeal before this Court it was contended that

the termination was only a camouflage and that though the

petitioner was still a temporary servant, yet the

termination amounted to punishment, because of the manner in

which it was passed and the background behind it. It was

also contended that though the termination order stated that

the petitioner's services were no longer required, his

juniors were retained and were continuing in service, in

violation of Articles 14 and 16 of the Constitution.

Disposing of the Special Leave Petition, this Court

HELD: 1.1 In a case of an order of termination, even

that of a temporary employee, the Court has to see whether

the order was made on the ground of misconduct if such a

complaint was made and in that process the Court would

examine the real circumstances, as well as the basis and

foundation of the order complained of and if the Court is

satisfied that the termination of services is not so

innocuous as claimed to be and if the circumstances further

disclose that it is only a camouflage with a view to avoid

an enquiry as warranted by Article 311(2) of the

Constitution, then such a termination is liable to be

quashed. [706E-F]

Annop Jaiswal v. Government of India & Anr., [1984] 2

SCR 453; Nepal Singh v. State of U.P. & Ors., [1985] 2 SCR 1

and Jarnail Singh & Ors. etc. v. State of Punjab & Ors.,

[1986] 2 SCR 1022, relied on.

1.2 In the instant case, the termination order, though

appears to be innocuous was only intended to punish the

petitioner for the misconduct, in respect of the allegations

which are mentioned in the charges that were served on him.

As a matter of fact, the enquiry was conducted, but before

the conclusion of the enquiry, the termination order was

passed. Therefore, it is not difficult to see that the form

of the termination order is only a clock for an order of

punishment. [707C-D]

1.3 Besides, the termination is also liable to be

quashed on the ground that it is violative of Articles 14

and 16 of the Constitution, as it is clear from the records

that while the petitioner's juniors are retained in service,

the petitioner's services are terminated as no longer

required. [708F, 709A-B]

Jarnail Singh & Ors. etc. v. State of Punjab & Ors.,

[1986]2 SCR 1022 and K.C. Joshi v. Union of India and Ors.,

[1985]3 SCR 869, relied on.

703

1.4 In the circumstances, the termination order is

quashed and the petitioner is directed to be reinstated in

service. However, it shall be open to the respondent-

Corporation to proceed with the disciplinary enquiry if it

so chooses. [709H]

1.5 As regards the backwages, admittedly the petitioner

has been practising as a lawyer since his termination. But

this Court has not refused to grant background that the

employee has been practicing as lawyer during the relevant

period, but has taken into consideration the probable income

that would have been earned him, while granting backwages.

However, a roving enquiry cannot be made by this Court nor

would it be possible for the respondent-Corporation to

unearth the income which the petitioner would have derived

as practising advocate. Undoubtedly, the petitioner would

have been entitled to subsistence allowance till his

reinstatement, even if the relevant period is treated as one

of suspension pending enquiry. Therefore, the petitioner

shall be entitled to the full back wages upto the date of

his enrollment as a lawyer and from that date upto the date

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

of reinstatement at the rate of half of the subsistence

allowance per month. Out of the total income, the income

admittedly earned by him as a practising lawyer shall be

deducted and the balance paid to the petitioner. The amount

so paid shall, for the purpose of income tax, be spread over

as if derived during those financial years from the date of

his dismissal till date of reinstatement. [708B, 709D-G,

710A-B]

S.M. Saiyad v. Baroda Municipal Corporation, relied on.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Special Leave Petition

No. 13560 of 1983.

From the Judgment and Order dated 27.6.1983 of the

Himachal Pradesh High Court in C. W. P. No. 86 of 1983.

P.P. Rao and H. J. Zaviri for the Petitioner.

V.K. Kanth and C.P. Pandey for the Respondents.

The following Order of the Court was delivered by

K. JAYACHANDRA REDDY, J. The petitioner was directly

appointed as an Accountant in the Himachal Pradesh Tourism

Development Corporation Ltd. ('Corporation' for short) on

28.8.78 He was on probation in the Transport Wing of the

Corporation. After

704

training he was transferred to the Office of the Area

Manager, Simla and was posted as an Accountant. His

conditions of service were governed by the Regulations made

by the Board of Directors of the Corporation. The

petitioner detected certain irregularities in the Transport

Wing and wrote a letter dated 19.6.1980 to the Transport

Officer pointing out the financial irregularities and

embezzlements committed by the then Cashier. The employees'

Union took up the matter and demanded the Management to take

necessary action and also made some demands on behalf of the

Union. The petitioner was the General Secretary of the

Union. In April 1980, the respondent No. 2 was posted as

the new Managing Director. According to the petitioner he

was annoyed with the petitioner because of his union

activities. It is stated that the petitioner actively

participated in highlighting the demands. On 13.5.1981 an

order transferring the petitioner to Dalhousie was passed,

even though the petitioner had been earlier granted

permission on 23.7.79 to do his 3 years Law course as an

evening student. the petitioner made a representation for

cancellation of the transfer on the ground that he was

already half way through his legal study and that the

transfer was mala fide. Respondent No. 2 got more annoyed.

The petitioner submitted a study leave application for one

year. But he was granted only 90 days leave in the first

instance with full pay and allowances and later on half pay

and subsequently without pay he was granted extra ordinary

leave. Meanwhile, a chargesheet was issued on 21st August,

1981 framing certain charges. The gravamen of the charges

is that while working in the Transport Wing of the

Corporation the petitioner facilitated and abetted the

embezziment of Rs. 100 by notensuring that the amount found

was in excess and that he failed to serve the Corporation

honestly and faithfully. The other charge is that he made

some fictitious entries in the Cash Book and the fourth

charge is that he made certain information public without

the permission of the Managing Director. To this the

petitioner submitted a reply stating that all the charges

are fake and false. It is stated that the petitioner's

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

leave was cancelled and the petitioner challenged the same

in the High Court of Himachal Pradesh but the case was

adjourned. Meanwhile the petitioner's services were

terminated with effect from 8th January, 1982 stating that

they are no longer required and one month's pay in lieu of

notice would be paid in terms and conditions of his

appointment letter and provisions of Staff Regulations of

the Corporation. The petitioner challenged the same before

the High Court, but the Writ Petition was dismissed in

limine. In this Court it is urged that the termination is

only a camouflage and that though the petitioner was still a

temporary servant yet the termination amounted to punishment

because of the manner in which it was

705

passed and the background behind it.

It is not in dispute that the Corporation has power to

terminate the services by giving one month's notice or pay

in lieu thereof, in the case of a temporary employee who

have completed one month's service. Regulation 19(3) reads

thus:

Termination of service by notice

"19(3) The Corporation may terminate the services

of any employee by giving him:

(a) xx xx xx

(b) one month's notice, or pay in lieu thereof, in

the case of temporary employees who have completed

one months service and one day's notice or pay in

lieu thereof in the case of temporary employees in

the first month of their service."

Regulation 39 prescribes various penalties that can be

awarded and termination of service is one of them. Now the

only question that arises for consideration in this case is

whether the termination of the petitioner's services is

simply one as per the Regulation 19(3) or in the nature of a

camouflage and, therefore, amounts to punishment as

contended by the petitioner.

In Anoop Jaiswal v. Government of India & Anr., p[1984]

2 SCR 453, it is held as under:

"Where the form of the order is merely a camouflage

for an order of dismissal for misconduct it is

always open to the Court before which the order is

challenged to go behind the form and ascertain the

true character of the order. If the Court holds

that the order though in the form is merely a

determination of employment is in reality a clock

for an order of punishment, the Court would not be

debarred, merely because of the form of the order,

in giving effect to the rights conferred by law

upon the employee."

In Nepal Singh v. State of U.P. & Ors., [1985] 2 SCR it is

held as under:

706

"Where allegations of misconduct are levelled

against a Government Servant, and it is a case

where the provisions of Article 31(2) of the

Constitution should be applied, it is not open to

the competent authority to take the view that

holding the enquiry contemplated by the clause

would be a bother or a nuisance and that therefore

it is entitled to avoid the mandate of that

provision and resort to the guise of an ex-facie

innocuous termination order. The Court will view

with great disfavour any attempt to circumvent the

constitutional provision of article 311(2) in a

case where that provision comes into play."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

In Jarnail Singh & Ors., etc. v. State of Punjab & Ors.,

[1986] 2 SCR 1022 it is, held thus:

"When an allegation is made by the employee

assailing the order of termination as one based on

misconduct though conched in innocuous terms, it is

incumbent on the court to lift the veil and to see

the real circumstances as well as the basis and

foundation of the order complained of. In other

words, the Court, in such a case, will lift the

veil and will see whether the order was made on the

ground of misconduct, inefficiency or not."

From the above decisions it can be seen that it is

well-settled that in a case of an order of termination even

that of a temporary employee the Court has to see whether

the order was made on the ground of misconduct if such a

complaint was made and in that process the Court would

examine the real circumstances as well as the basis and

foundation of the order complained of and if the Court is

satisfied that the termination of services is not so

innocuous as claimed to be and if the circumstances further

disclose that it is only a camouflage with a view to avoided

an enquiry as warranted by Article 311(2) of the

Constitution, then such a termination is liable to be

quashed. In the above mentioned decisions, the impugned

termination order was accordingly quashed.

It is not in dispute that a regular chargesheet was

served on the petitioner, as mentioned above, on 21st

August, 1981 and to the said chargesheet a list of documents

also was appended on the basis of which the articles of

charge were framed. The petitioner replied to these charges

on 7th September, 1981. Without reference to any of the

charges or the reply the order of termination was passed on

8th

707

January, 1982 as already mentioned. In the counter-

affidavit at more than one place it is admitted about the

framing of the charges etc. regarding the news item which

refers to the information given out by the petitioner. It

is stated in the counter-affidavit that services of the

petitioner were terminated as a probationer and not on the

basis of the enquiry report which came after the services of

the petitioner had been terminated. It can therefore be

seen that an enquiry, in fact, was contemplated and was held

but the report came into light after termination of the

services of the petitioner. It is also submitted on behalf

of the petitioner that the audit report would show many

irregularities as pointed out by the petitioner and that the

petitioner acted honestly in pointing out the

irregularities. It is not necessary for us to go into this

question. Having gone through the various records and also

the admissions made in he counter-affidavit, we are

satisfied that the termination order, though appears to be

innocuous, was only intended to punish the petitioner for

the misconduct, in respect of the allegations which are

mentioned in the charges that were served on him. After

serving the chargesheet, as a matter of fact, the enquiry

was conducted. But before the conclusion of the enquiry the

termination order was passed. Therefore it is not difficult

to see that the form of the termination order is only a

cloak for an order of punishment.

In this context, the learned counsel also questioned

the termination order from another angle. In that order it

is mentioned that the services of the petitioner are no

longer required, therefore they are terminated. But from

the record it is clear that juniors to the petitioner are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

retained and they are continuing in service. In the

affidavit it is clearly mentioned that juniors whose names

are given there are retained in service in violation of

Article 14 and 16 of the Constitution. In the counter-

affidavit only a vague reply is given simply stating that

the averments made by the petitioner are not correct. In

K.C. Joshi v. Union of India and Ors., [1985] 3 SCC 869. It

is observed that 'If it is discharge simpliciter, it would

be violative of Article 16, because a number of store-

keepers junior to the appellant are shown to have been

retained in the service'. Likewise in Jarnail Singh's case

it was observed as under:

"In the instant case, ad hoc services of the

appellants have been arbitrarily terminated as no

longer required while the respondents have retained

other surveyors who are juniors to the appellants.

Therefore, on this ground also, the impugned order

of termination of the services of the appellants

are illegal and bad being in contravention of the

708

fundamental rights guarantee under Article 14 and

16 of the Constitution of India."

After a careful perusal of the record we are satisfied that

the juniors to the petitioners are retained. Therefore on

this ground also the termination order is liable to be

quashed.

Admittedly the petitioner has been practising as a

lawyer ever since his services were terminated. In the

rejoinder filed by him he merely stated that he was not

earning much in that profession and that he has incurred

debts. The learned counsel for the Corporation, however,

submitted that since the petitioner was admittedly

practising as a lawyer the question of granting him back

wages is any event does not arise and that even otherwise

there cannot be a roving enquiry to the earning he has made

as a lawyer at this distance of time. The petitioner,

however, at this juncture filed a further affidavit that his

total income from 1985 onwards uptilnow was only Rs.15,550

and that he has not received any other income during all

these years. It is also submitted on his behalf that in

similar circumstances this Court awarded back wages even in

a case of an employee who practised as a lawyer from the

date of dismissal till his reinstatement. In S. M. Saiyad v.

Baroda Municipal Corporation, the employee was directed to

be reinstated in service by the labour court. Then

ultimately on the question of back wages it was urged before

this Court that though the appellant was practising as a

lawyer after enrolment during that period still he was

entitled for back wages. This Court accepted this plea and

observed as under:

"The appellant seeks back wages for the period

December 12, 1969 to October 26, 1976. This period

according to the respondent has to be divided in

two parts; (1) from December 12, 1969 to Jan. 20,

1972 when the appellant was enrolled as an

advocate, and (2) for the period Jan. 21, 1976 to

October 26, 1976 from which date he has already

been awarded back wages, it was submitted on behalf

of the respondent that the appellant himself has

admitted that since his being enrolled as an

advocate he was earning Rs. 150 per month which

aspect must be borne in mind while considering the

submission of the appellant for the award of back

wages."

Partly accepting this plea this Court ultimately observed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

that the appellant therein must have atleast stated earning

after a lapse of one

709

year from the date on which he was enrolled as an advocate.

Ultimately this court directed that:

"We, accordingly, allow this appeal and set aside

the decision of the High Court refusing the back

wages for the period December 12, 1969 to October

26, 1976 and directed that the appellant shall be

entitled to back wages including salary and

allowances and other benefits to which he would be

entitled as if the has continued the service.

While making the payment of back wages as per this

order the respondent is entitled to deduct the

amount of Rs. 150 p.m. from January 20, 1973 to

October 26, 1976 from the amount which becomes

payable to the appellant. The respondent must

compute the amount payable as herein directed and

pay what becomes payable to the appellant within a

period of two months from today."

It can therefore be seen that this Court did not refuse to

grant back wages on the simple ground that the employee was

a practicing lawyer during the relevant period.But on the

other hand it took into account the probable income and

after deducting the same the balance of back wages was

directed to be computed.

In the instant case in the affidavit filed by the

petitioner it is stated that he was practising as an income-

tax advocate ever since his enrolment in October, 1982.

But, however, he asserted that he got his first brief in the

year 1985. These averments are contradicted by the other

side. Under these circumstance we cannot make a roving

enquiry nor would it be possible for the corporation to

unearth the income which the petitioner would have derived

as a practising advocate. There are many imponderables and

conjectures too. Under these circumstances we asked both

the counsels to suggest a solution. We have heard both the

sides on this aspect elaborately. Shri P. P. Rao, learned

counsel for the petitioner submitted that if the relevant

period is to be treated as one of suspension pending enquiry

the petitioner would have been entitled to the subsistence

allowance till his reinstatement. That atleast should be

the criteria in granting the back wages in a situation like

this. We think this is a reasonable and fair suggestion.

In the result the termination order is quashed and

consequently the petitioner shall be reinstated in service.

However, he shall be entitled to the full back wages upto

the date of his enrolment as a

710

lawyer which was in the month of October, 1982. From the

date of his enrolment upto the date of reinstatement he

shall be entitled to the back wages at the rate of half of

the subsistence allowance per month and the total amount

shall be computed on that basis. Out of that the income of

Rs.15,550 admittedly earned by him as a practising lawyer

shall be deducted and the balance amount shall be paid to

the petitioner. The amount so paid to him shall for the

purpose of income tax, be spread over as if derived during

those financial years from the date of his dismissal till

the date of reinstatement. However, we would like to make

it clear that it is open to the Corporation to proceed with

the disciplinary enquiry if it so chooses.

The special leave petition is accordingly disposed of.

In the circumstances of the case there will be no order as

to costs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

N.P.V SLP disposed of.

711