# Tiwari v. Union of India & Ors. JT

- **Citation:** (2012) 2 ILRA 580
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-04
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tiwari-v-union-of-india-ors-jt-42307
- **Pages:** 6

## Headnote

Constitution of India , Article 226Termination
order-putting
stigmawithout show cause notice without
following principle of Natural Justiceorder not sustainable.

Held: Para 20

Now reverting to the facts of the present
case as stated herein above, the services
of the petitioner were terminated on the
ground of alleged misconduct in respect
of which a show cause notice was issued
to him to which he submitted his reply
and in this regard averments has been
made by the official respondents in para
nos. 11 and 13 of the counter affidavit ,
so in view of the said fact , the position
which emerge out is to the effect that
the
allegation
of
irregularities
and
misconduct committed by the petitioner
while
discharging
his
duty
is
the
foundation for passing of the impugned
order
against
the
petitioner,
hence
before passing the same it is incumbent
upon the respondents to afford an
opportunity of hearing to the petitioner
by issuing show cause notice and cannot
2 All] Ram Kumar V. State of U.P. and others
581
pass by invoking the provisions as
provided under Rules 1975.
Case law discussed:
(1999) 4 SCC 189; (2008) 1 UPLBEC 177;
(1999) 3 SCC 60; (2000) 5 SCC 152; (2000) 3
SCC 239; (2000) 3 SCC 588; (2006) 9 SCC
167; (2005) 6 SCC 135; 2005 (23) LCD 436;
(2009) 1 UPLBEC 894

## Text

580 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
But then the order of transfer must show
that the power of transfer has been
exercised
for
administrative
reasons
without making the order of transfer a
penalty.

8. The impugned order, in this case,
clearly show that after receiving enquiry
report and founded thereon the petitioner
is being transferred. Thus the power of
transfer has not been exercised by the
transferring authority independently by
his own application of mind but the
impugned order of transfer is founded on
the enquiry report. Fortunately, the
enquiry report is part of the record which
shows that enquiry officer has made
recommendation for transfer besides
above. The apex court while repeatedly
observing that normally interference in an
order of transfer should not be made but
simultaneously it has also said that if an
order of transfer is made as a punishment,
the same cannot sustain unless permitted
under the Rules. The reference is made to
the Apex Court decision in Somesh
Tiwari Vs. Union of India & Ors. JT
2009 (1) SC 96.

9. In view of the above, the
impugned order of transfer cannot sustain.
The writ petition is allowed. The order
dated 29th December, 2008 is hereby
quashed.

10. However, it is made clear that
since three years have passed, this order
shall not preclude the respondents from
passing a fresh order as and when the
circumstances required in accordance
with law since it cannot be said that the
petitioner has any vested right to continue
at a particular place according to his own
choice but privilege is that of competent
transferring authority to pass appropriate
authority in accordance with law in his
own wisdom.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.05.2012

BEFORE
THE HON'BLE ANIL KUMAR, J.

Service Single No. - 3181 of 1993

Ram Kumar

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.J. Trivedi

Counsel for the Respondents:
C.S.C.

Constitution of India , Article 226Termination
order-putting
stigmawithout show cause notice without
following principle of Natural Justiceorder not sustainable.

Held: Para 20

Now reverting to the facts of the present
case as stated herein above, the services
of the petitioner were terminated on the
ground of alleged misconduct in respect
of which a show cause notice was issued
to him to which he submitted his reply
and in this regard averments has been
made by the official respondents in para
nos. 11 and 13 of the counter affidavit ,
so in view of the said fact , the position
which emerge out is to the effect that
the
allegation
of
irregularities
and
misconduct committed by the petitioner
while
discharging
his
duty
is
the
foundation for passing of the impugned
order
against
the
petitioner,
hence
before passing the same it is incumbent
upon the respondents to afford an
opportunity of hearing to the petitioner
by issuing show cause notice and cannot
2 All] Ram Kumar V. State of U.P. and others
581
pass by invoking the provisions as
provided under Rules 1975.
Case law discussed:
(1999) 4 SCC 189; (2008) 1 UPLBEC 177;
(1999) 3 SCC 60; (2000) 5 SCC 152; (2000) 3
SCC 239; (2000) 3 SCC 588; (2006) 9 SCC
167; (2005) 6 SCC 135; 2005 (23) LCD 436;
(2009) 1 UPLBEC 894

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Sri R.J. Trivedi, learned
counsel
for
the
petitioner,
learned
Standing Counsel and perused the record.

2. By means of present writ petition,
petitioner has challenged the impugned
order of termination dated 1.6.1992 (
Annexure no.5) passed by opposite party
no.2
as
well
as
the
order
dated
18.1.1993(Anexure no.7) by which the
petitioner's representation was rejected by
opposite party no.2./ Commandant ,
Kendriya Nagrik Suraksha prishikshan
Sanstahan, Lucknow which comes under
under U.P. Civil Defence Services .

3. Learned counsel for the petitoiner
submits that the petitoner was initially
engaged on ad-hoc basis as Sweeper on
13.12.1985. Subsequently, the vacancy
occurred in the Sansthan, the names were
called from Employment Exchange by
opposite party no.2 . In pursuance of of
the
same,
petitioner
submitted
his
candidature and was called for interview
and by order dated 9.8.1990 ( Annexure
non.3) he was appointed on temporary
basis on the post of Sweeper under
opposite party no.3. In pursuance of the
said order , petitioner joined his duty on
7.9.1990. While he was working and
discharging his duties , by means of
impugned
order
dated
1.6.1992
(
Annexure no.5) passed by opposite party
no.2, the services of the petitioner has
been
terminated
by
invoking
the
provisions
as
provided
under
U.P.
Temporary Government Servants Rules(
termination of service ), 1975 ( herein
after referred to as Rules, 1975) .

4. Aggrieved by the said facts,
petitioner submitted a representation,
rejected
by
order
dated
18.1.1993
(Annexure no.7) hence the present writ
petition has been filed.

5. Learned counsel for the petitioner
while challenging the impugned orders
submits that in the present case , the
services of the petitioner has been
terminated on account of misconduct
,therefore before passing the impugned
order an opportunity of hearing should be
given to the petitioner, as such the action
on the part of the respondent no.2 thereby
terminating the services of the petitioner
by invoking the provisions as provided
under Rules , 1975 is illegal, arbitrary in
nature and in contravention of Article 14
of the Constitution of India as well as
principles of natural justice as the Rules
1975 have no application to the facts and
circumstances of the present case , so
liable to be set aside.

6. On the other hand , learned State
Counsel while defending the impugned
orders which are under challenge in the
present writ petition submits that the
petitioner was a temporary employee in
the Sansthan, as such his services were
terminated by invoking the provisions of
Rules 1975, hence there is neither any
illegality or infirmity in the impugned
orders which are under challenge in the
present writ petition , so the petition filed
by the petitioner liable to be dismissed.
582 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

7. I have heard the learned counsel
for the parties and going through the
record.

8. The undisputed facts of the
present case are that the petitioner was
working on the post of Sweeper as
temporary employee and his services
were terminated on 1.6.1992 ( Annexure
no.5) by invoking the provisions as
provided under Rules 1975 . Thereafter
his representation was also rejected.
Further in para nos 11 and 13 of the
counter affidavit filed on behalf of official
respondents it has been stated that
petitioner was absent from duty without
any prior information or leave and '
Anushashanheen Acharan ka Aadi Tha' as
such a complaint has been made against
the petitioner and in response to the same
a show cause notice has been issued to
him, thereafter reminders have been given
to which petitioner submitted his reply
and admitted his guilt and also stated that
he will not repeat such mistake in future ,
so keeping in view the said fact as well as
dereliction of duties and undisciplined
behavior while performing his duties, his
services were terminated by invoking the
provisions as provided under Rules 1975.

9. The provision of U.P. Temporary
Government Service ( termination of
service ) Rules,1975 would not apply
where a temporary Government Servant is
sought to be removed by way of
punishment. If there is a termination
simplicitor, which is intended to be
ordered in respect of a Government
Servant, Rule 3 of the Rules can be
invoked. But if a government servant,
who is governed by these rules is sought
to be removed on the ground of
misconduct, embezzlement or lack of
integrity, something more is required to
be done before the termination of which
Government
servant
is
ordered.
Something more must be consistent with
the constitutional provisions and with the
principles of natural justice. At least a
hearing is to be given to such Government
employee to explain his misconduct, lack
of integrity and negligence of duty.

10. In the case of State of U.P. and
another Vs. Prem Lata Misra (Km) and
others (1994) 4 SCC 189 Hon'ble the
Supreme Court has held that it is settled
law that the court can lift the veil of the
innocuous order to find whether it is the
foundation
or
motive
to
pass
the
offending order. If misconduct is the
foundation to pas the order then an
enquiry into misconduct should be
conducted and an action according to law
should follow. But if it is motive, it is not
incumbent upon the competent officer to
have the enquiry conducted and the
service of a temporary employee could be
terminated, in terms of the order of
appointment or rules giving one month's
notice or pay/ salary in lieu thereof .Even
if an enquiry was initiated could be
dropped midway and action could be
taken in terms of the rules of order of
appointment.

11. In the case of Radhey Shyam
Shukla Vs. State of U.P. and others
(2008) 1 UPLBEC 177 Hon'ble the
Supreme Court after considering the
various case laws has held in the cases of
Triveni Shanker Saxena V. State of U.P.
1992 SCC(L&S) 440 and State of U.P. V.
Prem Lata Misra (1994) 4 SCC 189 has
held that in the former case, the
termination order was simple order which
did not cast any stigma and there were
several adverse entries in the confidential
reports. The termination was as per rules.
2 All] Ram Kumar V. State of U.P. and others
583
In the letter case, the employees superiors
complained that the employee was not
regular in her work and was in the habit
of leaving office during office hours. A
simple order of termination was passed in
terms of the order of her temporary
appointment. There was no prior enquiry.
In both these cases, the termination orders
were upheld.

12. In Dipti Prakash Banerjee Vs.
Satyendra Nath Bose National Center
for Basic Sciences, Calcutta and others,
reported in (1999) 3 SCC,60, the Hon'ble
Supreme Court in paragraph 21 of the
report observed as under:-

"If findings were arrived at in an
enquiry 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, as the
same time, he did not want to continue the
employee against whom there were
complaints, if would only be a case of
motive and the order would not be bad.
Similarly is the position if the employer
did not want to enquiry into the truth of
the allegation because of delay in regular
departmental proceedings or he was
doubtful
about
securing
adequate
evidence. In such a circumstance, the
allegation would be a motive and not the
foundation and the simple order of
termination would be valid."

13. A perusal the above, clearly
shows that if an enquiry was conducted as
to misconduct, behind the back of the
officer or without a regular departmental
enquiry, the simple termination is to be
treated as 'founded' on the allegations and
will be bad.

14. Similarly in Chandra Prakash
Shahi Vs. State of U.P. and others,
(2000)5 SCC 152, the Hon'ble Supreme
Court articulated that if for determination
of suitability for the post or for his further
retention in service or for confirmation,
an inquiry is held and it is on the basis of
that inquiry that a decision is taken to
terminate the services, the order will not
be punitive in nature. But , if there are
some allegations of misconduct and an
inquiry is held to find out the trust of that
misconduct and thereafter the order of
termination is passed, the order would be
punitive in nature . In V.P. Ahuja v.
State of Punjab,(2000) 3SCC 239, the
Apex Court reiterated that services of
temporary
servant
and
even
of
probationer
cannot
be
terminated
arbitrarily, or can those services be
terminated in a punitive manner without
complying with the principles of natural
justice as they are also entitled to certain
protection.

15. In the case of Nar Singh Pal Vs.
Union of India and others(2000) 3 SCC
588, Hon'ble Supreme Court has held that
the reasoning of the Tribunal is fallacious.
If an order had been passed by way of
punishment and was punitive in nature, it
was the duty of the respondents to hold a
regular departmental enquiry and they
could not have terminated the services of
the appellant arbitrarily by paying him the
retrenchment
compensation.
The
observation of the Tribunal that the
respondent had a choice either to hold a
regular
departmental
enquiry
or
to
terminate the services by payment of
retrenchment compensation is wholly
incorrect.
584 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

16. In the case of Hari Ram Maurya
Vs. Union of India and others (2006) 9
SCC 167, Hon'ble Supreme Court has
held that from the order of termination
Annexure P-7, it appears that the same
refers to the show- cause notice dated
20.8.2002 which is to be found at
Annexure P-5 . It is stated therein that the
appellant demanded kickback with a view
to help the complaint to get a favorable
order in the pension matter. That being so,
there was a clear charge of bribery
levelled against the appellant. No doubt,
the appellant was a temporary employee,
but if he is sought to be removed on the
ground that he was guilty of the charge of
bribery, it becomes necessary for the
respondent Union of India to hold an
inquiry and thereafter to act in accordance
with law. In this case, admittedly, no
inquiry was conducted , and that is
obvious even from Annexure P-7 , the
latter described as disengagement of
casual labour. We, therefore, allow this
appeal and set aside the order of the High
Court as also the order of termination
Annexure P-& dated 30.9.2002. This,
however, will not prevent the respondents
from taking action in accordance with
law.

17. In the case of State of U.P. and
others Vs. Vijay Shanker Tripathi (2005)
6 SCC 135 Hon'ble Supreme Court has
held that from a long line of decisions it
appears to us that whether an order of
termination is simpliciter 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
thin or overlapping. It may be difficult
either to categories 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 to
motive on the ground of unsuitability to
continue in service.

18. A Division Bench of this Court
in the case of Kailash Bharti Vs. State of
U.P. and others 2005 (23) LCD 436 has
held that the factual situation indicates
that had there been no allegation of
drunkenness there would have been no
order of termination. The papers and
affidavits show this and those are all
matters of record. The whole thing having
come to the notice of the Writ Court it
cannot now say that the Court and
everybody else will now only look at the
faceless, or the unreasoned; letter of
termination, but it will show its eyes to
the history of its genesis. This type of
self-imposed partial blindness is not
permitted to the Writ Court. As such the
order
of
termination
brought
into
existence, because an allegation of
drunkenness against the writ petitioner
was found without any hearing to be true,
has to be set aside.

19. Further in the case of Usha
Khare ( Km.) Vs. State of U.P. and
others ( 2009) 1 UPLBEC 894 , a
Division Bench of this Court has held :-

"Considering the facts of the present
case in the light of the aforesaid
exposition of law we find that the
petitioner has been terminated observing
that she is guilty of committing several
irregularities and misuse of Pushtahar
and being not original resident of village
Ninora. The allegations of irregularities
and misuse of public funds constitute
serious stigma and therefore, by no
stretch of imagination it can be said that
2 All] Rambali and others V. State of U.P. and others
585
the impugned order is non-stigmatic.
Before castigating the appellant for her
alleged involvement in our view it was
incumbent upon the respondents to afford
an opportunity to appellant by issuing
show cause notice and , therefore, the
impugned order is in utter violation of
principles of natural justice ."

20. Now reverting to the facts of the
present case as stated herein above, the
services of the petitioner were terminated
on the ground of alleged misconduct in
respect of which a show cause notice was
issued to him to which he submitted his
reply and in this regard averments has
been made by the official respondents in
para nos. 11 and 13 of the counter
affidavit , so in view of the said fact , the
position which emerge out is to the effect
that the allegation of irregularities and
misconduct committed by the petitioner
while
discharging
his
duty
is
the
foundation for passing of the impugned
order against the petitioner, hence before
passing the same it is incumbent upon the
respondents to afford an opportunity of
hearing to the petitioner by issuing show
cause notice and cannot pass by invoking
the provisions as provided under Rules
1975.

21. In the result, the impugned order
of termination dated 1.6.1992 ( Annexure
no.5) and the order dated 18.1.1993
(Anexure no.7) passed by opposite party
no.2/Commandant , Kendriya Nagrik
Suraksha
Prishikshan
Sanstahan,
Lucknow are set aside.

22. Further, opposite parties are
directed to reinstate the petitioner in
service but the petitioner will not be
entitled for any salary for the intervening
period in view of the principle ' no work
no pay' but the same shall be counted for
other service benefits.

23. With the above observations,
writ petition is allowed.

24. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 21574 of 2012

Rambali and others
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners
Sri Harindra Prasad
Sri P.K.S.Paliwal

Counsel for the Respondents
C.S.C.
Sri Mahesh Narain Singh
Sri Rajesh Kumar

Constitution of India, Article 226-Writ of
mandamus-petitioner seeking direction
to the S.D.O. To decide application for
exchange of plot-a complete procedure
provided in U.P.Z.A. & L.R. Act and rulesunless
joint
application
by
both
Bhumidhar with valuation report movedS.D.O. No role to pay-statute provides for
doing any act in certain manner-should
be done-only with such manner-merely
on basis of convenience on unilateral
basis such application not maintainableheld-no mandamus can be issued unless
statutory legal/right of petitioner is
there.

Held: Para 15

Here in this case, a writ of mandamus
has been sought for by the petitioner,