important point
A finding of misconduct arrived on he basis of a preliminary enquiry, that too behind the back of the employee, cannot be made foundation for an order of termination.

Headnote:(a)Service Law – Disciplinary Proceedings – Motive and Foundation – There exists a distinction between motive and foundation – Order of termination issued on the basis of preliminary enquiry conducted behind the back of appellant – Such enquiry can only be for the purpose of judging the suitability of the respondent to continue in service, i.e., with the motive of finding out whether his actions were ‘misconduct’ – It cannot be a foundation for terminating the employee – Foundation is required to be proved in full-fledged enquiry. (Para 6)
       (b)Service Law – Termination – An innocuous order of discharge following a preliminary enquiry after consideration of show-cause may not be held to be punitive – However if the enquiry results in a finding of misconduct, the order of termination based on that would be punitive and stigmatic. (Para 12)
       (1999) 3 SCC 60; (2007) 12 SCALE 115 – Relied upon.
       (2006) 4 SCC 469 – Distinguished.
       (c)Service Law – Termination – Appellant in his reply to show-cause pleading bona fide in his action – It was not an admission on his part in regard to the imputation of misconduct – Evidently, he was not aware that his services had been terminated on a finding of misconduct or the fact that an enquiry had been conducted by the appellant behind his back – The foundation of the order having been disclosed by the appellant, at a later stage, the original order must be held to be vitiated in law. (Para 16)
       Facts of the case:
       1.Appellant is an autonomous body operating under the Department of Youth Affairs and Sports, Ministry of Human Resource Development, Government of India. It is a ‘State’ within the meaning of Article 12 of the Constitution of India.
       2.Respondent herein was appointed as a Youth Co-ordinator.
       3.He allegedly withdrew some amount from the Government Fund (to which he was entitled to) and deposited it in his personal bank account. An enquiry in that behalf was conducted behind his back and on the basis of the result thereof, his probation was terminated,
       4.As his representation was not being responded to within a reasonable time by the respondents, he filed a writ petition before the High Court which was disposed of by the High Court directing the appellant to consider his representation keeping in mind the decision of the High Court in the case of Ajay Gupta.
       5.The representation of the appellant was rejected.
       6.By reason of a judgment and order the said order was set aside and the writ petition was allowed
       7.As the said Order was not complied with, a contempt petition was also filed wherein by an Order the Contemnor was directed to comply with the Orders of the Court without delay. A Writ Appeal was also preferred against the Order dated 9.4.2003 which has been dismissed.
       Findings of the Court:
       Termination without disciplinary proceeding merely on the basis of an preliminary enquiry is bad in law.
       Result : Appeal dismissed, respondent denied full back wages.

judgment

S.B. Sinha, J. —

1.These two appeals involving common questions of fact and law were taken up for hearing together and are being disposed of by this common judgment.

Appellant is an autonomous body operating under the Department of Youth Affairs and Sports, Ministry of Human Resource Development, Government of India. It is a ‘State’ within the meaning of Article 12 of the Constitution of India.

Respondent herein was appointed as a Youth Co-ordinator in terms of an offer of appointment dated 28.9.1994; paragraph 5 whereof reads as under:-

“5.You will be on probation for a period of one year from date of joining. Your probation period may be extended if considered necessary by the Sangathan. During the probation period, you will have the option of resigning, if you so desire, without any notice. Likewise, the Sangathan will be at liberty to terminate your services without any notice and without assigning any reasons whatsoever, during the probation period. Upon successful completion of this period you will be advised in writing of the fresh terms and conditions of your employment.”

2.He allegedly withdrew some amount from the Government Fund (to which he was entitled to) and deposited it in his personal bank account. An enquiry in that behalf was conducted behind his back and on the basis of the result thereof, his probation was terminated, stating:

“Services of Sh. Mehboob Alam Laskar S/o Late Latif Ahmed Laskar working as Youth Coordinator in NYK-North Tripura, are terminated forthwith. He shall handover the charge to Sh. Topan Nag, Youth Coordinator, NYK-Karimganj immediately after receipt of this order. Sh. Nag will hold the additional charge of the Kendra till further orders.

Sd/- S.Y. Quraiahi

Director General”

3.He filed a representation before the appropriate authority for reconsideration of his case. He also filed another representation/appeal seeking review of the order of termination dated 24.5.1995 on or about 20.2.1999.

As the said representation was not being responded to within a reasonable time by the respondents, he filed a writ petition before the High Court which was marked as Writ Petition (C) No. 3136 of 1999. The said Writ Petition was disposed of by the High Court directing the appellant to consider his representation keeping in mind the decision of the High Court in the case of Ajay Gupta being Civil Rule No. 5582 of 1995 wherein an order of reinstatement had been passed.

4.The said representation of the appellant was rejected by an Order dated 13.10.1999 stating that the case of Ajay Gupta which was the subject matter of above-mentioned Civil Rule, was not similar, stating;

“7.In view of the above explained facts, it is submitted that your case cannot be treated as similar with that of Shri Ajay Kumar Gupta, his services were terminated during the probation period after conducting preliminary inquiry. Later, he refuted the allegations against him and appealed to the disciplinary authority. Though his termination was well within the rules of the Sangathan and also as per the conditions mentioned in the appointment letter, it was decided to give him a chance as per principles of natural justice. However, on further inquiry, he was found to be guilty of misappropriation and the termination of his services was found justified.

On the other hand, your services were terminated during the probation period on the basis of certain prima facie allegations of financial irregularities. The same charges were also admitted by you in your letter dated 14th June, 1995. Therefore, no other inquiry was considered necessary by the competent authority since the charges were already proved/admitted by you.”

5.The legality/validity of the said Order was questioned by the respondent by filing another writ petition before the High Court which was registered as Writ Petition (Civil) No. 480 of 2001. By reason of a judgment and order dated 9.4.2003, the said order was set aside and the writ petition was allowed, holding :

“The

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2008 Supreme(SC) 105

2008(1) Supreme 423Supreme Court of indiaS.B. Sinha & Harjit Singh Bedi, JJ.Nehru Yuva Kendra Sangathan — PetitionerversusMehbub Alam Laskar — RespondentAppeal (civil) 1123 of 2006Decided on : 22-01-2008

important pointA finding of misconduct arrived on he basis of a preliminary enquiry, that too behind the back of the employee, cannot be made foundation for an order of termination.

Cases Referred (2)

2008(1) Supreme 423
Supreme Court of india
S.B. Sinha & Harjit Singh Bedi, JJ.
Nehru Yuva Kendra Sangathan — Petitioner
versus
Mehbub Alam Laskar — Respondent
Appeal (civil) 1123 of 2006
Decided on : 22-01-2008

important point
A finding of misconduct arrived on he basis of a preliminary enquiry, that too behind the back of the employee, cannot be made foundation for an order of termination.