- (1.) DEVI Prasad Singh and V. D. Chaturvedi, JJ. Heard Smt. Aruna Mishra, learned standing counsel on behalf of the petitioners and Sri Shailendra Singh Chauhan learned counsel appearing on behalf of opposite party No. 1. Present writ petition under Article 226 of the Constitution of India has been preferred against the judgment and order dated 27. 2. 1993 (Annexure -1) passed by the U. P. Public Services Tribunal.
(2.) THE opposite party No. 1, who is the member of Provincial Armed Constabulary (in short P. A. C.), had joined the force at Jhansi in the year 1984. THE controversy in question relates allegation to the fact that the opposite party No. 1 while he was posted in Etawah, on account of misconduct, a notice dated 18th August, 1989 was served upon him, in response to which he submitted a reply. After receipt of reply, by an order dated 18th August, 1989 the private respondent was punished for ten days' Physical Drill (P. D. ). Learned standing counsel submits that respondent No. 1 has refused to oblige the department to accept the punishment and proceeded on leave on 2nd September, 1989. THEreafter, his services have been terminated by an order dated 6th October, 1989. Order of termination was assailed by the opposite party No. 1 before the U. P. Public Services Tribunal on the ground of its being violative of Article 311 (2) of the Constitution of India. It was pleaded before the Tribunal that the order of termination was not simplicitor and it has been passed as a measure of punishment without holding regular departmental enquiry. The Tribunal after hearing learned counsel for the parties and going through the record, recorded a finding that the order of termination is not a simplicitor one and has been passed in violation of Article 311 (2) of the Constitution of India, hence not sustainable. Smt. Aruna Mishra, while assailing the impugned judgment and order (Annexure-1) submitted that the order of termination is simplictor one and does not cast stigma. It has been passed exclusively on the basis of the performance of the private respondent in the department, hence it cannot be treated as punishment and the Tribunal's decision is not correct. Rebutting the argument advanced by the learned standing counsel the counsel for the private respondent submitted that while exercising the power of judicial review, the Tribunal and this Court got power to lift the veil and in case it is found that termination order has been passed on account of certain misconduct, then such order shall not be sustainable being punitive in nature.
(3.) WE have considered the arguments advanced by learned counsel for the parties at length and perused the record. There appears to be no dispute that immediately after the order of punishment for ten days physical drill was passed, the services of private respondent was terminated. It is also alleged that after award of punishment, the opposite party No. 1 had gone on leave and tried to disobey the order of punishment dated 18. 8. 1989 and not undergone the sentence of physical drill. From the material on record, there appears to be no doubt that the order of termination is preceded by the punishment of physical drill and after a short span of time, the order of termination has been passed. The Tribunal has relied upon the judgment of Hon'ble Supreme Court in Jagdish Mitter v. Union of India, AIR 1964 SC 449 and observed that the impugned order of termination casts stigma, since it has been passed as a measure of punishment. The Tribunal has observed that the impugned order of termination cannot be held as simplicitor as the reason behind passing the said order is the alleged misconduct of the private respondent.;