Rajeshwar Singb, J. - (1.) THE appointing authority terminated the service of a government employee. He filed a claim petition before the U. P. Public Services Tribunal, THE Tribunal allowed the petition, quashed the termination order, and directed that the petitioner would continue in service with alt consequential benefits. Against that judgment of the Tribunal the State has filed the present writ petition.
(2.) THE facts are that the employee was a warden in jail. He was temporary. During his seveen years of service 16 petty punishments were awarded to him. On 12-11-1976 there was some upheaval in jail and the prisoners went out of control and started pelting brick-bats. In this respect a Magistrate also made an enquiry. About 10 days thereafter on 22-11-76, the service of the petitioner was terminated by a simple order. THE petition was filed in the year 1986 that is ten years after the' date of termination order. The Tribunal held that the order was punitive and passed without giving any opportunity of being heard. The plea of the employer that the claim was time-barred, was rejected. The first point is whether the service of the petitioner was terminated for his work being unsatisfactory as was alleged by the employer, or the order was passed as a measure of punishment as held by the Tribunal. The Tribunal was impressed by the fact that the order of termination was passed only ten days after the incident that occurred in jail and there was also some enquiry by the Magistrate. This was not the solitary incident and as pointed out earlier during seven years of his temporary service the petitioner earned 16 punishments. Then this incident of the jail came as a last straw on the camel's back. Therein, according to the employer, the petitioner had apart to play and so on the whole his services were found unsatisfactory, and being a temporary employee his services were terminated.
(3.) THE mere fact that the Magistrate made some sort of enquiry and the order was passed within ten days after the incident does not seem to make any difference. THE enquiry made by the Magistrate was not departmental enquiry. It was rather a Magisterial enquiry. In the case of Gujarat Steel Tubes Ltd., v. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593 Koshal, J. in the minority judgment laid down the test very clearly. He said that the question therefore is whether the misconduct is the "foundation" of the order of discharge of merely the reason which weighed with the employer in effecting the termination. For an order to be founded on misconduct, it must be intended to have been passed by way of punishment, that is, it must be intended to chastise or cause pain in body or mind or harm or loss in reputation or money to the concerned worker. If such an intention cannot be spelled out of the prevailing circumstances, the order of discharge or the reasons for which it was ostensibly passed, it cannot be regarded as an order of dismissal. Such would be the case when the employer orders discharge in the interest of the factory or of the general body of workers themselves. So the real criterion which formed the touchstone of a test to determine whether an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order, that is, the intention with which it was passed. If the intention was to punish, that is, to chastise, the order may be regarded as an order of dismmissal, and for judging the intention, the question of mala fides (which is the same thing as a colourable exercise of power) becomes all important. If no mala fides can be attributed to the Management, the order of discharge must be regarded as one having been passed under the relevant rule for discharge even though the reason for its passage is serious misconduct.;