IMPORTANT POINT
Where order of termination of service was strictly in accordance with terms of appointment and did not cast any stigma, merely because it was preceded by a fact finding inquiry into a complaint against delinquent, it would not mean that termination of service was by way of punishment.

Headnote:SERVICE LAW - Termination of service - Respondent was appointed on a temporary post of Physical Education Teacher on 25-6-1974 - His services were terminated on 21-3-1975 - Suit for declaration that order of termination was by way of punishment, preceded by inquiry and was illegal being in violation of principles of natural justice - Trial Court dismissed suit and 1st appellate Court upheld the decree - High Court decreed suit in second appeal - Appeal - Respondent did not hold a civil post within meaning of Article 311 of Constitution of India - One of terms of appointment order was that his services were terminable by one month notice on either side - Order of termination of service was wholly innocuous and did not contain any stigma - A fact finding inquiry was preceded in a complaint by parents of a child that despite child having pain in chest was made to run by respondent - Respondent had joined that inquiry but that would not mean inquiry assumed shape of formal departmental enquiry - No article of charges were served upon respondent - Termination of service was in accordance with terms and conditions mentioned in appointment letter - Impugned judgment was liable to be set aside.
       Held : 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 months 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 months 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. (Para 8)
       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 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 respondents services by one months notice without assigning any reasons. The services of the respondent were, therefore, not terminated by way of punishment.(Para 9)
       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.(Para 14)

JUDGMENT

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.

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 months 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 e

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2006 Supreme(SC) 1017

Cases Referred (10)