Jammu & Kashmir High Court Applies "Doctrine Of Piercing Through Veil" To Ascertain If Employee's Termination Is Punitive, Stigmatising

The observations were made by Justice Wasim Sadiq Nargal while deciding a bunch of petitions in terms of which the petitioners had challenged their order of termination issued by the Chief Engineer Project beacon C/O 56 APO.

In the instant case the petitioner got appointed to the post of Nursing Assistant however post the selection process, a verification process was initiated by the appointing authority in order to determine the genuineness of the documents submitted by the selected candidates.

Subsequently , it came to fore that the experience certificate of the petitioner was alleged to be forged and as a consequence of which, a Notice of termination came to be issued on September 26th 2009 against the petitioner by the Chief Engineer, Beacon.

On October 14th, 2009 a reply to the notice was submitted by the petitioner and on the basis of recommendations on October 23 2009, the notice of termination was withdrawn in respect of petitioner, for the purpose of directing further enquiry with respect to the same.

On further enquiry the verification certificate was endorsed by Mahajan Hospital in respect of petitioner and it was verified by them that the petitioner had gained the requisite experience in their hospital and the certificate was genuine. However, on May 30th 2011, another order of termination was passed against the petitioner No. 1, whereby, he was given one month notice for termination of his services on 30th June 2011.

Challenging his order of termination the petitioner submitted that he responded to his first termination order through proper channel and clarified the position that the experience certificate furnished by him is not forged but true and correct one and before appointment of the petitioner has a working experience as a Nursing Assistant with the Mahajan Hospital Salapur Maharashtra.

The petitioners further argued that without holding a proper enquiry or finding recorded in this regard, the same does not warrant major punishment of termination of service, which becomes punitive in nature.

Contesting the plea, the respondents vehemently argued that the point which has been raised by the petitioner with regard to the relevancy of experience certificate, is false and that the genuineness of experience certificate is in question, as the same has been intimated as “FORGED” by the concerned authority (Counter Signing Authority).

Adjudicating upon the matter Justice Nargal observed that in the instant case, though the termination order apparently is innocuously worded, yet on analyzing the entire record of the case it is apparent on the face of it that the order was stigmatizing in nature.

Observing that the court can’t overlook the fact, that merely because an order is worded in the simplest form and so it can’t be stigmatizing, Justice Nargal observed that in such cases the doctrine of piercing through the veil is to be taken recourse to. In the case at hand as well, the termination order is worded quite simply yet on piercing through it is manifest that the order imputes stigma to the petitioner and on that ground is liable to be quashed, the court pointed.

Referring to the Apex Court judgment in State of Punjab and another v. Sukh Raj Bahadur (1968), the court said if an aspersion is cast on the character of a person, it is to be considered termination by way of punishment, even if the person claiming there under, is a probationer. Therefore, in view of the aforesaid settled legal position, it can be concluded that the termination was not simpliciter but stigmatizing and thereby warrants the interference of the court, the bench underscored.

Highlighting the fact that the order of termination passed by the authorities against the petitioners was not a termination simpliciter, Justice Nargal observed that since the impugned order was not based on fact whether the work done by them was satisfactory or not, but was based on the ground that they supplied forged certificate of experience in relation to their matter of employment, which implies that they were terminated on account of misconduct.

Elaborating further the court said that the termination order of the petitioners is founded on the alleged misconduct attributed to the petitioners and therefore is a stigmatizing termination and not merely termination simpliciter. Accordingly, I am of the considered opinion that the order of termination issued by the respondents in the present case on the grounds of misconduct are punitive in nature, the bench remarked.

Finding the order of termination disproportionate to the attributed misconduct and the court said the same necessarily warrants the interference of the Court. Accordingly the bench allowed the petition and the impugned notice was quashed to the extent of petitioner No.1 only. The respondents were further directed to allow the petitioner to perform his duties as Nursing Assistant without any hindrance.