State of Uttarakhand and Others vs Aradhana Rawat

The Special Appeal before this Court was listed on 06.01.2015. Thereafter, it was fixed for 07.01.2015. Again, it was listed for 16.01.2015, on which date it was fixed for 21.01.2015, (i.e., today) for dictation of judgment.

By means of present Special Appeal, the appellants have assailed the order dated 10.12.2014 rendered by learned Single Judge in Writ Petition no.2122 of 2014 (S/S) titled as Smt. Aradhana Rawat vs. State and others. By the impugned order, learned Single Judge stayed the operation and effect of order dated 02.12.2014, by which, the petitioner was dismissed from service.

Learned Brief Holder for the State-appellants submitted that the final relief sought for, should not be granted by learned Single Judge at an interim stage. In other words, the interim relief granted to the petitioner (respondent herein) by learned Single Judge is final in nature and the final relief could not have been granted at the interim stage. In support of his submissions, learned Brief Holder placed reliance upon the decisions of Hon''ble Supreme Court in Rajesh Jagdamba Avasthi Vs. State of Goa, and State of U.P. and Others Vs. Sandeep Kumar Balmiki and Others, . In Ram Sukhi Devi''s case (supra), the Hon''ble Supreme Court held as under:

"8. To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, , State of Rajasthan and Others Vs. Swaika Properties and Another, , Bharat Earth Movers Vs. Commissioner of Income Tax, Karnataka, , Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. ( 1995 Supp (2) SCC 593 ), Shiv Shankar and Others Vs. Board of Directors, U.P.S.R.T.C. and Another, and Commissioner/Secretary to Government Health and Medical Edu. Deptt. Civil Sectt., Jammu Vs. Dr Ashok Kumar Kohli, .] No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment." 4. In Sandeep Kumar Balmiki''s case (supra), the Hon''ble Supreme Court held as under :

"5. In our view, the interim order granted by the High Court staying the order of termination could not be passed at this stage in view of the fact that if such relief is granted at this stage, the writ petition shall stand automatically allowed without permitting the parties to place their respective cases at the time of final hearing of the writ petition. In this case also, the appellants have not yet filed counter affidavit to the writ petition of the respondents.

That being the position and in view of the fact that the final relief could not be granted at the interim stage, we set aside the impugned order and vacate the interim order passed by the High Court."

The petitioner (respondent herein) is a lady probation officer in the State Excise Department. She was appointed as Excise Inspector on 24.12.2013 and her probation was for a period of two years. Her services have been terminated, vide order dated 02.12.2014. She was chargesheeted and an opportunity to reply the same was given to her. After conducting enquiry, the Enquiry Officer came to the conclusion that the charges were found to be true against the respondent. After considering the report of enquiry officer and other documents, the disciplinary authority dismissed the services of the petitioner.

Learned counsel for the petitioner (respondent herein) submits that the order passed by learned Single Judge is correct, inasmuch as, the petitioner is a lady probation officer whose services were terminated on the ground of misconduct. Learned counsel for the petitioner placed reliance upon the decision of Hon''ble Supreme Court in Samsher Singh Vs. State of Punjab and Another, , wherein it was held:

"62. The position of a probationer was considered by this Court in Parshotam Lal Dhingra Vs. Union of India (UOI), . Das, C.J., speaking for the Court said that where a person is appointed to a permanent post in Government service on probation the termination of his service during or at the end of the period of probation win not ordinarily and by itself be a punishment because the Government servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to do so. Such a termination does not operate as a forfeiture of any right of a servant to hold the post, for he has no such right. Obviously such a termination cannot be a dismissal, removal or reduction in rank by way of punishment. There are, however, two important observations of Das, C.J., in Dhingra''s case (supra). One is that if a right exists under a contract or service Rules to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The other is that if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and violates Article 311 of the constitution. The reasoning why motive is said to be irrelevant is that it inheres in the state of mind which is not discernible. On the other hand, if termination is founded on misconduct it is objective and is manifest." 7. Learned counsel for the petitioner further contended that the petitioner was not given full opportunity to rebut the allegations levelled against her and she was not provided relevant documents by the department. Learned counsel for the petitioner also submitted that the allegation against the petitioner is simple in nature for which she could not be dismissed from service. The allegations against the petitioner is that she used derogatory language against the Commissioner, Excise, Dehradun, but the description of such language has not been mentioned.

After considering the rival submissions of learned counsel for the parties, this Court is of the humble opinion that the decision of Hon''ble Supreme Court in Samsher Singh''s case (supra) is not applicable in the present case and the petitioner will not get any benefit of that judgment, inasmuch as, the petitioner was chargesheeted, opportunity of hearing was provided to her, the enquiry officer conducted enquiry and after considering the report of the enquiry officer and the reply of the petitioner, the disciplinary authority passed the order dismissing her services.

We are of the view that it is not a case where the interim relief sought for should be granted in favour of the petitioner at an interim stage in view of decisions of Hon''ble Supreme Court in Ram Sukhi Devi''s case (supra) and Sandeep Kumar Balmiki''s case (supra).

Consequently, the impugned order dated 10.12.2014 passed by the learned Single Judge does not sustain in the eye of law. The impugned order dated 10.12.2014, whereby the effect and operation of the order dated 02.12.2014 was stayed, is hereby set aside. The Special Appeal is, thus, disposed of accordingly.

It is, however, open to the petitioner to raise all pleas before learned Single Judge at the time of final hearing.