STATE OF UTTAR PRADESH AND ORS.versusVIJAY SHANKER TRIPATHI

                STATE OF UTTAR PRADESH AND ORS.                             A
                                    v.
                       VIJAY SHANKER TRIPATHI

                              JULY 20, 2005

                [ARIJIT PASAYAT AND H.K. SEMA, JJ.]                          B

     Service Law:

     Constitution of India, 1950; Article 3J/(2):
                                                                            c
       Termination of services of an employee by employer without following
 the due procedure as indicated under Article 311(2)-Legality of termination
 order-Challenge to-Dismissed by Tribunal holding that the order of
termination was a terminator simpliciter and Article 311(2) not attracted-
Reversed by High Court-On appeal, Held: The question whether enquiry D
purportedly held before passing termination order was motive or the
f oondation was required to be considered by the High Court-Since High '
 Court failed to express any opinion on the merits of the case, the matter is
 remitted to High Court for consideration afresh.

      The services of the respondent were terminated after serving him notice E
as his services were no longer required. Such termination was questioned
before the State Public Service Tribu~al. The claim was dismissed by the
Tribunal holding that the order of termination was a termination simpliciter
and no stigma was attached and that Article 311 (2) of the Constitution was
not attracted. The order was challenged by the employee. The High Court set
aside the order of termination on the ground that Article 311(2) of the F
Constitution is required to be followed even while terminating the services of
a temporary Government employee. Hence the present appeal.

     Disposing of the appeal, the Court

      Held: The High court did not consider the question of stigma or the G
effect of any enquiry held before the order of termination was passed. The
question whether the enquiry purportedly held was the motive or the
foundation was required to be considered by the High Court in detail. The
Order of the High Court is without expressing any opinion on the merits of
                                    749                                      H
    750                    SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A the case, hence set. aside and remitted to the High Court for fr~sh
    consideration. [751-D, F]

         Dhananjay v. Chief Executive Officer, Zilla Parishad, Jaina, (2003] 2
    SCC 386; Mathew P. Thomas v. Kera/a State Civil supply Corporation
    Limited and Ors., [2003] 3 SCC 263; Dipti Prakash Banerjee v. Satyendra
B   Nath Bose National Centre for Basic Sciences, Calcutta [1999) 3 SCC 60
    and Pavanendra Narayan Verma v. Sanjay Gandhi PG/ of Medical Sciences,
    (2002] 1 sec 520, referred to.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5242 of2002.

c         From the Judgment and Order dated 5.11.99 of the Allahabad High· Court
    in C.M.W.P. No. 28767 ofl998.

         Mrs. Alka Agrawal, Garvesh Kabra and Ravi Prakash Mehrotra for the
    Appellants.

D         Yatish Mohan and VishwajirSingh for the Respondent.

          The Judgment of the Court was delivered by

          ARIJIT PASAYAT, J. Heard learned counsel for the parties.

E        The service of the respondent was terminated by an order dated
   16.08.1988. It was indicated that his services were no longer required and,
  therefore, notice was given with the requisite one month pay and allowance.
  Such termination was questioned before the State Public Service Tribunal,
  Uttar Pradesh (in short 'the Tribunal'). The Claim petition No. 337N/89 was
F _dismissed holding that the order of termination was a termination simpliciter
  and no stigma was attached. It was found that there were certain allegations
  and the respondent-employee had more or less accepted the allegations. The
  order of termination was, therefore, neither attached with any stigma nor was
   visited by any punitive character. Accordingly, it was held that Article 311(2)
   of the Constitution of India, 1950 (in short 'the Constitution') was not
G attracted. The respondent-employee filed a writ petition only on the ground
  that Article 311(2) of the Constitution was required to be followed in the case
   of temporary government servants. High Court was of the view that Article
   311 (2) is required to be followed even in case of temporary Government
   employees. Accordingly, the order of termination was set aside and the writ
H petition was allowed.
         STATEOFU.P. v. VIJAYSHANKERTRIPATHL[PASAYAT,J.]                 751

      In support of the appeal, learned counsel for the appellant-State and its A
functionaries submitted that the basic issue before the High Court was whether
the order of termination was a termination simpliciter or there was any stigma
attached. There is no quarrel to the proposition that Article 311 (2) is attracted
to temporary government servants. But whether on the facts of the case, the
order of termination was legal, was not tested by the High Court. It was B
pointed out that there is nothing in the order of termination which even
remotely shows any stigma and, therefore, the High Court was not justified
in ignoring this aspect and allowing the writ petition. Learned-counsel for the
respondent, on the order hand, submitted that before the ord_er of termination,
an enquiry was purportedly conducted and some materials were taken on
record. Without granting any opportunity to the respondent herein and C
without holding an enquiry, the order of termination was passed. According
to him, the enquiry report was both the motive and the foundation for the
order of termination.

      We find that the High Court did not consider the question of stigma or
the effect of any enquiry held before the order of termination was passed. The D
question whether the enquiry purportedly held was the motive or the
foundation was required to be considered by t~e High Court in detail. That
has not been done. The question whether termination of service is simpliciter
or punitive has been examined in several cases e.g. Dhananjay v. Chief
Executive Officer, Zilla Parishad, Ja/na, [2003] 2 SCC 386 and Mathew P. E
Thomas v. Kera/a State Civil Supply Corporation Limited and Ors., [2003]
3 SCC 263. An order of termination simpliciter passed during the period of
probation has been generating undying debate. The recent two decisions of
this Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National
Centre for Basic Sciences, Calcutta, [1999] 3 SCC 60 and Pavanendra Narayan
Verma v. Sanjay Gandhi PG! of Medical Sciences, [2002] I SCC 520 after F
survey of most of the earlier decisions touching the question observed as to
when an order of termination can be. treated as simpliciter and when it can
be treated as punitive and when a stigma is said to be attached to an
employee discharged during the period of probation. The learned counsel on
either side referred to and relied on these decisions either in support of their
respective contentions or to distinguish them for the purpose of application G
of the principles stated therein to the facts of the present case. In the case
of Dipti Prakash Banerjee after referring to various decisions indicated as to
when a simple order of termination is to be treated as "founded" on the
allegations of misconduct and when complaints could be only as a motive for
passing such a simple order of termination. In para-21 of the said judgment H
    752                       SUPREME COURT REPORTS (2005) SUPP. I S.C.R.

A a distinction is explained, thus:
                   "If findings were arrived at in an enquiry as to misconduct,
              behind the back of the officer or without a regular departmental
              enquiry, the simple order of termination is to be treated as 'founded'
              on the allegations and will be bad. But if the enquiry was not held,           ')

B             no findings were arrived at and the employer was not inclined to
                                                                                             j




              conduct an enquiry but, at the same time, he did not want to continue
              the employee against whom there were complaints, it would only be
              a case of motive and the order would not be bad. Similar is the
              position if the employer did not want to enquire into the truth of the
c             allegations because of delay in regular departmental proceedings or
              he was doubtful about securing adequate evidence. In such a
              circumstance, the allegations would be a motive and not the foundation
              and the simple order of termination would be valid. From a long line
              of decisions it appears to us that whether an order of termination is
              simpiciter or punitive has ultimately to be decided having due regard
D             to the facts and circumstances of each case. Many a times the
              distinction between the foundation an~ motive in relation to an order
              of termination either is thin or overlapping. It may be difficult either
              to categorize or classify strictly orders of termination simpliciter falling
              in one or the other category, based on misconduct as foundation for
              passing the order of termination simpliciter or on motive on the ground
E
              of unsuitability to continue in service."

         Therefore, without expressing any opinion on the merits of the case, we
  set aside the order of the High Court, remit the matter to the High Court for
  fresh consideration. It appears that counter affidavit was .not filed by the
F appellant-State and its functionaries before the High Court. The same shall
  be filed within six weeks. If it is not filed, then, the High Court shall proceed
  on the materials before it. If any counter is filed and the respondent-employee
  wants to file any further affidavit, adequate time shall be granted by the High
  Court to the respondent-employee.

G            The appeal is, accordingly, disposed of with no order as to cost.

    S.K.S.                                                         Appeal disposed of.