# Katar Singh v. District Magistrate/Collector, Saharanpur and others

- **Citation:** (2006) 2 ILRA 821
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-07
- **Case number:** Civil Misc. Writ Petition No. 13526 of 1994
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/katar-singh-v-district-magistrate-collector-saharanpur-and-others-40607
- **Pages:** 4

## Headnote

Constitution
of
India-Art.-226Termination order-Petitioner appointed
as Cooperative Kurk Amin-appointment
letter stipulates about the nature of
appointment as temporary-circle officer
as enquiry officer found the petitioner
guilty of embezzlement of Rs.9000-No
opportunity
of
hearing
given-heldtermination
is
not
simpliciter-but
punitive
in
nature-Order
can
not
sustained.

Held: Para 10

The order of terminating the services of
the
petitioner
is
not
a
simpliciter
termination but has been founded on the
charge of misconduct. Taking into entire
facts and circumstances of the present
case as brought on record it is clear
beyond any shadow of doubt that the
termination order was passed on, finding
of guilt of embezzlement which is the
foundation of the order. The termination
order is not termination simpliciter but is
punitive in nature.
Case law discussed:
2001 (2) UPLBEC-1185
1999 (3) UPLBEC 1901
W.P. 738/98 decided on 16.11.85
2005 (6) SCC-135
1999 (3) SCC-60

## Text

2 All] Katar Singh V. District Magistrate/Collector, Saharanpur and others
821
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.10.2005

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 13526 of 1994

Katar Singh

...Petitioner
Versus
District
Magistrate/Collector,
Saharanpur and others ...Respondents

Counsel for the Petitioner:
Sri Ajai Kumar Srivastava
Sri Prabha Kanta Mishra
Sri Rati Kanta Mishra
Sri Anupam Shukla

Counsel for the Respondents:
Sri H.R. Misra
Sri K.M. Misra
S.C.

Constitution
of
India-Art.-226Termination order-Petitioner appointed
as Cooperative Kurk Amin-appointment
letter stipulates about the nature of
appointment as temporary-circle officer
as enquiry officer found the petitioner
guilty of embezzlement of Rs.9000-No
opportunity
of
hearing
given-heldtermination
is
not
simpliciter-but
punitive
in
nature-Order
can
not
sustained.

Held: Para 10

The order of terminating the services of
the
petitioner
is
not
a
simpliciter
termination but has been founded on the
charge of misconduct. Taking into entire
facts and circumstances of the present
case as brought on record it is clear
beyond any shadow of doubt that the
termination order was passed on, finding
of guilt of embezzlement which is the
foundation of the order. The termination
order is not termination simpliciter but is
punitive in nature.
Case law discussed:
2001 (2) UPLBEC-1185
1999 (3) UPLBEC 1901
W.P. 738/98 decided on 16.11.85
2005 (6) SCC-135
1999 (3) SCC-60

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Ajai Kumar Srivastava,
learned
counsel
for
the
petitioner,
standing
counsel
appearing
for
the
respondent NO.1 and Sri K. M. Misra
appearing for the respondents No. 2 and 3
Counter and rejoinder affidavits have
been exchanged between the parties. The
writ petition is being finally disposed of
with the consent of both the parties.

2. By this writ petition the petitioner
has prayed for quashing the termination
order dated 10.11.1993 Annexure- 3 to
the writ petition.

Brief facts necessary for deciding the
writ petition are:_____

3. The petitioner was selected for
appointment as Cooperative Kurk Amin
by the Collector, Saharanpur vide his
order
dated
1.6.1985
The
District
Assistant Registrar issued an order dated
10.6 1985 directing the petitioner to
complete certain formalities within one
week,
the
appointment order dated
25.6.1985 was Issued by the District
Assistant Registrar in pursuance of the
selection of the petitioner on commission
basis as Kurk Amin. The appointment
order stated that the petitioner's services
are temporary. By an order dated
10.11.1993 issued by the Collector,
Saharanpur petitioner's services were
terminated with immediate effect. The
822 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
petitioner submitted representation to the
Collector
protesting
against
his
termination vide his representation dated
18.12.1993. It was stated by the petitioner
in the representation that the termination
has been affected without affording any
opportunity of hearing to the applicant.
The termination order dated 10.11.1993
terminating the services of the petitioner
has been challenged by means of this writ
petition.

4. A counter affidavit has been filed
on behalf of the respondents No. 2 and 3.
In the counter affidavit it has been stated
in paragraph 4 that the petitioner was
found guilty of embezzlement that is why
his services were dispensed with by the
impugned order. In paragraph 8 of the
counter affidavit it has been stated that the
Circle Officer, Collection was made
Enquiry Officer and in the enquiry it was
found that the petitioner is guilty of
embezzlement of the amount to the tune
of Rs.9000/-. On the basis of the aforesaid
allegation
of
embezzlement
it
was
decided to terminate the petitioner's
services. It is relevant to note the
allegation made in paragraph 8 of the
counter affidavit for ascertaining the real
cause
of
termination
of petitioner's
services. Following is the averment made
in paragraph 8 of the counter affidavit:

"8. ................... Ultimately by the
order
dated
30.10.1992
the
C.O./Collection was made enquiry officer
who after holding the enquiry found that
the petitioner is guilty of embezzlement of
the amount to the tune of Rs.9,000/- and
consequently there upon the petitioner
deposited
a
sum
of
Rs.7800/-on
13.1.1993, a sum of Rs.1200/- on 16. 1.
1993 and a sum of Rs.280/- on 13.2.1993.
Thus total Rs.8,980/- was deposited in the
Bank Thus, it is clear that the petitioner
who was appointed on commission basis
has embezzled the aforesaid amount and
the same came into light after a gap of
five years and when the enquiry was
conducted the petitioner deposited the
same. Thereafter it· was decided by the
respondent no. 1 not to retain the
petitioner in service and consequently the
impugned order dated 10.11.1993 was
passed by which the petitioner's services
were dispensed with."

5. In Paragraph 12 of the counter
affidavit it was again stated that the
petitioner was not only negligent in
performing his duties but also found
guilty of embezzlement and that is why
his services have rightly been dispensed
with.

6. Learned counsel for the petitioner
challenging
the
termination
order
submitted that the termination of the
petitioner is in violation of protection
given to petitioner under Article 311 (2)
of the Constitution of India. Learned
counsel contended that the Kurk Amin
appointed on commission basis is also a
civil servant as held by the apex Court in
(2001) 2 UPLBEC 1185 State of Uttar
Pradesh
Versus
Chandra
Prakash
Pandey and others; hence the protection
of Article 311 (2) of the Constitution' is
fully applicable to the petitioner.' It is
further contended that the termination
order was punitive in nature having been
passed on the charge of embezzlement
and proper enquiry was necessary before
passing the impugned ,order. Reliance has
been placed by the counsel for the
petitioner on the judgement of this Court
reproved in (1999) 3 UPLBEC 1901
Jagdish Prasad Versus State of Uttar
Pradesh & others. Learned counsel
2 All] Katar Singh V. District Magistrate/Collector, Saharanpur and others
823
appearing for the respondents No. 2 and 3
contended that the order of termination
passed by the respondent is a termination
simpliciter which did not require holding
of any enquiry before passing the order. It
is contended that the petitioner was a
temporary employee and his services'
were liable to be terminated by simpliciter
order without holding any enquiry.
Learned standing counsel also adopted the
arguments raised by the learned counsel
appearing for the respondents NO.2 and 3.

7. I have considered the submissions
and perused the record.

8. There is no dispute that the
petitioner was appointed by the order of
Collector as Kurk Amin on commission
basis. A Division Bench of this Court in
Writ Petition No. 738 of 1998 Ram
Behari Misra Versus District Assistant
Registrar. Cooperative Societies &
others by its judgment dated 16.11.1985
has already held that the Kurk Amins
appointed on commission basis are civil
servants and are entitled to be dealt with
in accordance with law before terminating
their services. The above Division bench
judgement of this Court was approved by
the apex Court in the case of State of
Uttar Pradesh Versus Chandra Prakash
Pandey and others (Supra).

9. The petitioner though was
temporary government servant was fully
entitled for the protection of Article 311
(2) of the Constitution of India, The
question raised in this writ petition is as to
whether the termination of petitioner's
services was simplicitor termination or
the same is punitive in nature. It is well
settled that· for deciding the question as
to: whether the termination is simplicitor
or punitive in nature the court can look
into other attended circumstances and
materials on record. The apex Court in
(2005) 6 Supreme Court Cases 135 State
of U.P. and others Versus Vijay
Shanker Tripathi had again considered
the test to find out as to when the simple
order of termination' is founded on the
allegation of misconduct or the complaint
are only motive for passing simple order
of termination. The apex Court quoted
with approval paragraph 21 of the apex
Court judgement in (1999) 3 Supreme
Court Cases 60 Dipti Prakash .Banerjee
Versus Satyendra Nath Bose National
Centre for Basic Sciences. It is relevant
to quote paragraph 4 of the judgement of
the apex Court in State of U.P.& others
Versus Vijay Shanker Tripathi (supra):-

"4.. .................................................
21. 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, no findings were
arrived at and the employer was not
inclined to 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
allegations because of delay in regular
departmental proceedings or he was
doubtful
about
securing
adequate
evidence. In such 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
824 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
termination is simplicier or punitive has
ultimately to be decided having due
regard to the facts and circumstances of
each case. Many a times the distinction
between the foundation and motive in
relation to an order of termination either
is thin or overlapping. ·It may be difficult
either to categorise 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 of on
motive on the ground of unsuitability to
continue in service".

10. Applying the above test in the
present case it is clear from the own
averments of the respondents in· the
counter affidavit that the termination
order was proceeded by enquiry in which
charge. of embezzlement was established
against the petitioner. Petitioner in the
Writ petition has categorically stated that
no opportunity or show cause was given
to the petitioner before passing the order
of termination. Thus the finding of guilt
of the petitioner has been recorded in an
ex parte enquiry and the finding of
embezzlement is the foundation of the
order of termination. The categorical
assertions have been made in the counter
affidavit that the services have been
terminated after finding the petitioner
guilty of embezzlement. The order of
terminating the services of the petitioner
is not a simpliciter termination but has
been
founded
on
the
charge
of
misconduct. Taking into entire facts and
circumstances of the present case as
brought on record it is clear beyond any
shadow of doubt that the termination
order was passed on, finding of guilt of
embezzlement which is the foundation of
the order. The termination order is not
termination simpliciter but is punitive in
nature.

11. In view of foregoing discussion
the impugned order dated 10.11.1993
cannot be sustained and is hereby
quashed. The petitioner shall be deemed
to continue in service and shall be
reinstated by the respondents within a
period of one months from the date of
production of a certified copy of this
order. However, since the petitioner was
appointed on commission basis there is no
occasion to direct for payment of any
arrears of salary. Other benefits of service
as permissible including the continuity of
service shall be admissible to the
petitioner in accordance with relevant
rules, government orders issued by the
State Government from time to time.

The writ petition is allowed with the
aforesaid directions. Parties shall bear
their own costs.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 9798 of 1986

Mohan Singh Bais

...Petitioner
Versus
State of U.P. and others ...Respondents
AND
Civil Misc. Writ Petition No. 15100 of 1999

Counsel for the Petitioner:
Sri V.C. Misra
Sri C.P. Tripathi
Smt. Suniti Vandana Misra
Sri Shailesh Verma