Priyanka v. The Lieutenant Governor And ANR

AFR

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/165/2024 Priyanka Vs.

The Lieutenant Governor and Another Ms. Anjili Nag ... for the petitioner Mr.Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondent nos. 1 & 2 March 13, 2024 [SR] Item No. 5 1.

Heard Ms. Anjili Nag, learned Counsel for the petitioner and Mr. Shatadru Chakraborty, learned Counsel for the respondent nos. 1 & 2.

2.

This writ petition has been filed praying to quash the termination notice dated 13.02.2024.

Facts:

3.

Briefly stated facts of the present case are that the petitioner was engaged as Staff Nurse (NUHM) for a fixed period of eleven months vide letter of engagement dated 09.04.2018 issued by the Mission Director (UTHM), State Health Society (Andaman and Nicobar Islands), Port Blair on a fixed monthly salary of Rs. 16,000/- . The scope of work and responsibilities and the termination clause as provided in the aforesaid letter of engagement dated 09.04.2018, are reproduced below :

"SCOPE OF WORK AND RESPONSIBILITIES

1) To administer oxygen, medicine and injection to admitted patient as prescribed by the Pediatrician/Medical Officer.

2) You will be responsible for preparing beds/warmers for babies and also responsible for daily moping/cleaning of the babies.

3) You will be responsible for maintenance of cleanliness in the wards.

4) To feed the hospitalized newborn patient and help guide the attendant of the newborn in taking medicine/breast feed etc.

5) To record the pulse, blood pressure, temperature and other parameters of the newborn inpatients.

6) To help the Doctors and Para Medical Staff in transport of newborns.

7) To assist the doctors in making round of the ward and admission/discharge.

8) You will be polite, caring and sympathetic.

9) Any other work as specified by State Health Society (A & N Islands) from time to time.

...

TERMINATION The State Health Society reserves the right to terminate your engagement without assigning any reason thereof after serving one month's notice or by paying one month salary without serving any notice to you, for just cause including but not limited to the following grounds:

I.

Breach of obligations under the confidentiality CLAUSE. II.

Failure to observe the terms of this agreement or the legitimate directions or orders for performing duties as assigned to you by the State Health Society.

III.

Obstructing the performance of the functions of the State Health Society.

IV.

Causing damage to the prestige or reputation of the State Health Society by willful or gross misconduct. V.

Your performance is unsatisfactory.

4.

The aforesaid term of engagement was further extended from time to time and lastly by an order No. 55 dated 16.10.2023 for a period from 01.08.2023 to 30.06.2024 on the existing terms and conditions.

5.

One Smt. Plasida Minj lodged an FIR No. 0283 dated 16.10.2023 under Section 380 I.P.C., PS Aberdeen, District South

Andaman in which she named the petitioner herein. As per allegation in the FIR, four gold chains weighing about 50 grams, two gold necklace weighing 26 grams, 8-9 gold rings weighing about 16 grams, 3-4 gold ear rings weighing about 10 grams, 03 gold bracelet weighing about 24 grams and six gold kids jewelery consisting of one chain, one bracelet, five ear rings and two finger rings weighing 1012 grams, were stolen. The allegation of theft was made in the aforesaid FIR against the petitioner who was then working as Staff Nurse of UHC, Dairy Farm. The petitioner was arrested in connection with the aforesaid FIR on 27.10.2023 and she was produced before the Magistrate and was granted interim bail on the same day.

6.

Although learned counsel for the respondent has submitted that recovery of the aforesaid allegedly stolen gold jewelries were made from the petitioner but neither there is any averment in this regard in the affidavit in opposition nor copy of the recovery memo has been filed by the respondents along with the affidavit in opposition. Thus, there is nothing on record to indicate that the alleged stolen jewelries were recovered from the petitioner, except a complaint letter of the informant dated 30.10.2023 addressed to the respondent No. 2 in which the complainant mentioned that after the arrest, the petitioner confessed to the crime and handed over her jewelry. Even this allegation of recovery and handing over of jewelry does not find mention in the letter of the Station House Officer dated 28.10.2023 filed as Annexure R3 to the affidavit-in-opposition. However, by the impugned notice dated 13.02.2024, the respondent No. 2 gave one month notice to the petitioner for termination of her contract of service on the ground that in view of the FIR 283/2023 dated 16.10.2023

under Section 380 of I.P.C. and her enlargement on interim bail has damaged the prestige /reputation of the State Health Society by willful / gross misconduct.

Discussion and Findings 7.

The respondent No. 2 has given one month notice for termination of service of the petitioner solely on account of FIR no. 283/2023 dated 16.10.2023 and enlargement of the petitioner on interim bail, by observing that in this way the petitioner has damaged the prestige/reputation of the State Health Society by willful/ gross misconduct. This observation/ the ground taken in the termination notice dated 13.02.2024 clearly casts a stigma on the petitioner. The contract of the petitioner has been sought to be terminated by the respondent No. 2 even without asking for any explanation from her with respect to the allegations made in the notice.

8.

In paragraph 6 of the writ petition, the writ petitioner has stated that she has been falsely implicated in the case. There is no specific denial to this averment in paragraph 9 of the affidavit-in-opposition, except stating that the contract of service of the petitioner had been terminated on the ground of her being arrested and initiation of criminal case against her on the allegation of theft.

When an order of termination can be treated as simpliciter, when it can be treated as punitive and when a stigma is said to be attached to an employee discharged.

9.

"Motive" or "Foundation" concerning an employee forms the basis to determine whether the termination is Simpliciter or Punitive.

10.

In Chandra Prakash Shahi - versus - State of Uttar Pradesh and others (2000) 5 SCC 152 (Paras 27, 28, 29) explained the important principles on the concept of "motive" and "foundation" concerning a probationer and held, as under :- 27.

The whole case-law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulam; right, the order is valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi case that there was a conflict of decisions on the question of order being a simple termination order or a punitive order, but every time the Court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of "motive" and "foundation" was always kept in view. 28.

The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature.

But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive". 29.

"Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. 11.

In the case of Parshotam Lal Dhingra vs. Union of India, AIR 1958 SC 36, Hon'ble Supreme Court dealt with sustainability of termination of service casting a stigma and held as under: "The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this

Court in Satish Chander Anand v. The Union of India (supra). Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art 311(2), as has also been held by this Court in Shyam Lal v. The State of Uttar Pradesh (1955) I S.C.R. 26. In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under rule 52 of the Fundamental Rules.

It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive, operating on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh v. Union of India (supra), wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted.

But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause.

termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his sub-: stantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a Punishment.

The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the

reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or, the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government bad purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate " or " discharge " is not conclusive.

In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.

(emphasis supplied) 12.

In Andhra Pradesh State Federation of Coop. Spinning Mills Ltd. and another - versus - P. V. Swaminathan (2001) 10 SCC 83 (Para

3) Hon'ble Supreme Court considered the termination of an employee appointed for a fixed term and held that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. But the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of the order of termination to find out whether the alleged inefficiency really was the motive for the order of termination or the foundation of the order. If the court comes to conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion the so called inefficiency was the really founded for

passing of the order of termination then obviously such an order would be penal in nature and must be interfered with since appropriate procedure has not been followed.

13.

Thus, when an employer does not want to conduct an enquiry into the complaints received against an employee but at the same time does not want to continue him in employment, it would be a case of MOTIVE. In such a case when an order of termination is passed without a finding of misconduct then it would be a case of termination simpliciter. Thus, "motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act But when a finding of misconduct is arrived at in the termination order without an enquiry or on enquiry behind the back then the simple order of termination is treated as "founded" on the allegations and will be bad, vide State of Haryana - versus Satyender Singh Rathore (2005) 7 SCC 518 (Para 9).

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. Line of distinction between the two is thin and may be overlapping. No straitjacket test can be laid down to distinguish the two namely, the "motive" and the "foundation". The real test to be applied in a suspicion where an employee is removed by innocuous order of termination is: is he discharged as unsuitable or punished for his misconduct? If the order terminating service casts a stigma in the sense that it contains a statement casting aspersion on the conduct of the employee or his character, then it can be treated as an order of punishment, but not if it merely amounts to highlighting the unsuitability of the employee in relation to his work, vide Abhijit Gupta vs. S.N.B.

National Centre, Basic Sciences and others, (2006) 4 SCC 469 (para 14).

14.

In the present set of facts, this court find that the impugned order of termination of fixed term employment of the petitioner has been passed by the respondent No. 2 recording specific finding that the petitioner has damaged the prestige/reputation of the State Health Society by willful/gross misconduct. Therefore, the impugned order/termination notice dated 13.02.2024 is punitive particularly when the respondent No. 2 has arrived at the said finding without affording any opportunity of hearing to the petitioner. Thus, the impugned order/termination notice is punitive casting a stigma upon the petitioner and that too, in breach of principle of natural justice.

Stigma 15.

In Kamal Kishore Lakshman vs. Management of M.s Pan American World Airways INC. and others, (1987) 1 SCC 146 (para8), Hon'ble Supreme Court referred to the dictionary meaning of the word "stigma", in the absence of the statutory definition, and held as under :

"8. According to Webster's New World Dictionary it is something that detracts from the character or reputation of a person, a mark sign, etc. indicating that something is not considered normal or standard. The Legal Thesuras by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace of shame. The Webster's Third New International Dictionary givers the meaning as a mark or label indicating a deviation from a norm. According to yet another dictionary 'stigma' is a matter for moral reproach".

(emphasis supplied) 16.

In Dipti Prakash Banerjee vs. Satyender Nath Bose National Centre for Basic Sciences, Calcutta and others, (1999) 3 SCC 60 (para -25), Hon'ble Supreme Court held that in the matter of "stigma", the effect which an order of termination may have on a person's future prospects of employment is a matter of relevant

consideration. In Samsher Singh vs. State of Punjab, (1974) 2 SCC 831, a Constitutional Bench of Hon'ble Supreme Court observed that if a simple order of termination was passed, that would enable the employee to "make good in other walks of life without a stigma". In Bishan Lal Gupta vs. State of Haryana, (1978) 1 SCC 202, Hon'ble Supreme Court held that if the order contained a sigma, the termination would be bad for "the individual concerned must suffer a substantial loss of reputation which may affect his future prospects". In State of U.P. and others vs. Ram Bachan Tripathi (2005) 6 SCC 496 (para 6 & 7), Hon'ble Supreme Court held that usually a "stigma" is understood to be something that is detraction from the character or reputation of a person. It is a blemish, imputation, a mark or label indicating a deviation from a norm. But mere description of a background fact cannot be called a stigma. 17.

In Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another, (2002) 1 SCC 520 (para -28 and 29), Hon'ble Supreme Court held that although strictly speaking, the "stigma" is implicit in the termination, but a simple termination is not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.

18.

In Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and another, (1999) 2 SCC 21 (para-33), Hon'ble Supreme Court held that where the employer opts to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules it would not be punitive, as the employee would not suffer from any stigma which would attach to the rest of his carrier.

Natural Justice

19.

In K. Ragupathi vs. State of Uttar Pradesh and others, (2022) 6 SCC (para-14), Hon'ble Supreme Court considered discontinuation of a contractual employee on account of the allegation made against him by the Dean of the University where the employee was entitled to get the benefits of the regular employee, and held that the services of the such a contractual employee could not have been terminated without following of principles of the natural justice.

20.

Since in the impugned notice of the termination of service of the petitioner, a specific finding has been recorded by the respondent No. 2 against the petitioner that the petitioner has damaged the prestige/reputation of the State Health Society by willful/gross misconduct on account of his arrest on 27.10.2023, in connection with FIR No. 283/2023 dated 16.10.2023 under section 380 Indian Penal Code, it clearly casts a stigma on the petitioner and results in disrepute to her which may affect her future prospects. The impugned order of termination of service of the petitioner has been passed without asking from the petitioner any explanation and without affording her any opportunity of hearing. Thus, the impugned order/termination notice is punitive, which has been passed by the respondent No. 2 in breach of the principles of natural justice.

21.

Thus, under the facts and circumstances of the present case, the impugned notice/order terminating the employment of the petitioner cannot be sustained, more particularly, in view of the law laid down by the Hon'ble Supreme Court in various judgments as discussed above. Consequently, the impugned termination notice dated 13.02.2023 deserved to be quashed.

22.

For all reasons aforestated, the impugned notice of termination dated 13.02.2023 is hereby quashed. The writ petition is allowed. Liberty is granted to the respondents to proceed against the petitioner in accordance with law, if they so desire. ( Surya Prakash Kesarwani, J. )