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2005(8) Supreme 605
Supreme Court of India
(From Allahabad High Court)
H.K. Sema and Dr. AR. Lakshmanan, JJ.
State of U.P. & Ors. —Appellants
versus
Ashok Kumar —Respondent
Civil Appeal No. 7901 of 2002
Decided on 13-12-2005
Counsel for the Parties :
For the Appellants : Ravi Prakash Mehrotra, Garvesh Kabra and Mrs. Deepti R. Mehrotra, Advocates.
For the Respondent : Dr. K.S. Chauhan, Chand Kiran and J.K. Burman, Advocates.
Held : Both the tribunal and the High Court held that the service of the respondent was temporary. However, while holding that the service of the respondent was on the temporary basis they were erred in law in holding that the allegation by the respondent that the appellant was found using unfair means while undergoing training along with other trainees is the foundation of the termination order and, therefore, is violative of Article 311(2) of the Constitution. The order of termination simpliciter as referred above does not disclose any stigma. Whether a complaint is the motive leading to the termination simpliciter or it is the foundation of the termination order has been considered by this Court and held consistently by this Court that when there is no inquiry resulting in the termination order the complaint is the motive of the order of termination on the other hand whether the complaint leads to the inquiry resulting the termination order it is the foundation of the order of termination. (Paras 5 and 6)
The facts of the case at hand are clearly covered by the decision rendered in the Satyender Singh Rathore (supra). In this view of the matter we are clearly of the view that both the Tribunal and the High Court were erred in law for setting aside the order of termination simpliciter. (Para 7)
Judgment
Sema, J.—Heard the parties.
2. This appeal is preferred by the State of U.P. against an order of the High Court affirming the order of tribunal.
3. Briefly stated the facts are as follows:
The respondent was recruited as constable and he was undergoing training. It is not in dispute that his regular appointment was to be preceded by the successful completion of training. While he was undergoing training he was terminated by an order dated 15.2.1983 (termination simpliciter) by resorting to Uttar Pradesh Temporary Government Servants (Termination of Service) Rule, 1975 (hereinafter the ‘Rules’). The order of termination reads:
“In terms of the provisions of the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975, published by Appointment Section-3 vide notification No. 20/1/74 Appointment-3 dated 11.6.1975, the undersigned Sri Haramol Singh, Superintendent of Police, Mathura, do hereby give notice to temporary recruit constable Ashok Kumar that his services are no longer required and his services shall be deemed to have been terminated from the date of receipt of this notice.”
4. The respondent preferred an appeal before the Appellate Authority who is Deputy Inspector General of Police. The appeal was dismissed by an order dated 28.9.1989 on the ground that there was no violation of Article 311(2) of the Constitution of India. The order further stated that he may be paid one month’s pay in lieu of the notice. Aggrieved thereby, he filed an application before the State Public Services Tribunal. The Tribunal after hearing the submission of the respondent and the appellant was of the view that the termination of the respondent’s services by the impugned order was violative of Article 311(2) of the Constitution as no reasonable opportunity of hearing has been afforded to the respondent as provided under Article 311(2) of the Constitution. Aggrieved thereby, the appellant filed a writ petition before the High Court. The High Court on the same ground affirmed the view of the Tribunal. Hence, the present appeal.
5. Both the tribunal and the High Court held that the service of the respondent was temporary. However, while holding that the service of the respondent was on the temporary basis they were erred in law in holding that the allegation by the respondent that the appellant was found using unfair means while undergoing training along with other trainees is the foundation of the termination order and, therefore, is violative of Article 311(2) of the Constitution.
6. The order of termination simpliciter as referred above does not disclose any stigma. Whether a complaint is the motive leading to the termination simpliciter or it is the foundation of the termination order has been considered by this Court and held consistently by this Court that when there is no inquiry resulting in the termination order the complaint is the motive of the order of termination on the other hand whether the complaint leads to the inquiry resulting the termination order it is the foundation of the order of termination. This Court in a recent decision in the case of State of Haryana and another vs. Satyender Singh Rathore, 2005 (7) SCC 518. After discussing the various decisions of this Court held in paragraph 9 of the judgment as under:
“9. We find the High Court did not consider the question of stigma or the effect of any enquiry held before the order of termination was passed. Thequestion whether the enquiry purportedly held provided the motive or the foundation was required to be considered by the High Court in detail. That has not been done. The question whether the termination of service is simpliciter or punitive has been examined in several cases e.g. Dhananjay v. Chief Executive Officer, Zilla Parishad, Jalna, (2003) 2 SCC 386, and Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd., (2003) 3 SCC 263. An order of termination simpliciter passed during the period of probation has been generating undying debate. T
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