K. Jayachandra Reddy, J. - (1.) The petitioner was directly appointed as an Accountant in the Himachal Pradesh Tourism Development Corporation Ltd. ('Corporation' for short) on 28-8-78. He was on probation in the Transport Wing of the Corporation. After training he was transferred to the Office of the Area Manager, Simla and was posted as an Accountant. His conditions of service were governed by the Regulations made by the Board of Directors of the Corporation. The petitioner detected certain irregularities in the Transport Wing and wrote a letter dated 19-6-1980 to the Transport Officer pointing out the financial irregularities and embezzlements committed by the then Cashier. The employees' Union took up the matter and demanded the Management to take necessary action and also made some demands on behalf of the Union. The petitioner was the General Secretary of the Union. In April 1980, the respondent No. 2 was posted as the new Managing Director. According to the petitioner he was annoyed with the petitioner because of his union activities. It is stated that the petitioner actively participated in highlighting the demands. On 13-5-1981 an order transferring the petitioner, to Dalhousie was passed, even though the petitioner had been earlier granted permission on 23-7-1979 to do his 3 years Law course as an evening student. The petitioner made a representation for cancellation of the transfer on the ground that he was already half way through his legal study and that the transfer was mala fide. Respondent No. 2 got more annoyed. The petitioner submitted a study leave application for one year. But he was granted only 90 days leave in the first instance with full pay and allowances and later on half pay and subsequently without pay he was granted extraordinary leave. Meanwhile, a charge-sheet was issued on 21st August, 1981 framing certain charges. The gravamen of the charges is that while working in the Transport Wing of the Corporation the petitioner facilitated and abetted the embezzlement of Rs. 100/by not ensuring that the amount found was in excess and that he failed to serve the Corporation honestly and faithfully. The other charge is that he made some fictitious entries in the Cash Book and the fourth charge is that he made certain information public without the permission of the Managing Director. To this the petitioner submitted a reply stating that all the charges are fake and false. It is stated that the petitioner's leave was cancelled and the petitioner challenged the same in the High Court of Himachal Pradesh but the case was adjourned. Meanwhile the petitioner's services were terminated with effect from 8th January, 1982 stating that they are no longer required and one month's pay in lieu of notice would be paid in terms and conditions of his appointment letter and provisions of Staff Regulations of the Corporation. The petitioner challenged the same before the High Court, but the writ petition was dismissed in limine. In this Court it is urged that the termination is only a camouflage and that though the petitioner was still a temporary servant yet the termination amounted to punishment because of the manner in which it was passed and the background behind it.
(2.) It is not in dispute that the Corporation has power to terminate the services by giving one month's notice or pay in lieu thereof, in the case of a temporary employee who have completed one month's service. Regulation 19(3)(b) reads thus: Termination of service by notice "19(3) TheCorporation may terminate the services of any employee by giving him: (a) ********** (b) One month's notice, or pay in lieu thereof, in the case of temporary employees who have completed one month's service and one day's notice or pay in lieu thereof in the case of temporary employees in the first month of their services." Regulation 39 prescribes various penalties that can be awarded and termination of service is one of them. Now the only question that arises for consideration in this case is whether the termination of the petitioner's services is simply one as per the Regulation 19(3) or in the nature of a camouflage and, therefore, amounts to punishment as contended by the petitioner.
(3.) In Anoop Jaiswal v. Govt. of India, (1984) 2 SCR 453 it is held as under: "Where the form of the order is merely a camouflage for an order of. dismissal for misconduct it is always open' to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order in giving effect to the rights conferred by law upon the employee." In Nepal Singh v. State of U. P., (1985) 2 SCR 1 , it is held as under: "Where allegations of misconduct are levelled against a Government servant, and it is a case where the provisions of Art. 311(2) of the Constitution should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by the clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. The Court will view with great disfavour any attempt to circumvent the constitutional provision of Art. 311(2) in a case where that provision comes into play." In Jarnail Singh v. State of Punjab, (1986) 2 SCR 1022 it is held thus: "When an allegation is made by the emplyee assailing the order of termination as one based on misconduct though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court in such a case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not." ;