Full Judgment Text
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PETITIONER:
JARNAIL SINGH & ORS. ETC.
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS.
DATE OF JUDGMENT07/05/1986
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
SEN, A.P. (J)
CITATION:
1986 AIR 1626 1986 SCR (2)1022
1986 SCC (3) 277 1986 SCALE (1)1009
CITATOR INFO :
F 1991 SC1490 (6)
ACT:
Constitution of India, Art. 311(2) - Persons appointed
on ad hoc basis - Order of termination challenged as casting
stigma on service career - Whether court entitled to lift
the veil to find out real basis of termination order.
Articles 14 and 16 - Protection under - Whether
available to temporary government servants if arbitrarily
discriminated against.
HEADNOTE:
The appellants were appointed as Surveyors on various
dates between December 1976 to 1977 through employment
exchange on purely temporary and ad hoc basis "up to a
certain date or upto the date till the regular candidates
were recommended by the Board, whichever was later". One of
the terms of employment stipulated that their services could
be dispensed with any time without any notice or reason.
The Government of Punjab, issued a Circular in
September 1980 to the effect that the services of the ad hoc
employees shall be regularised on certain conditions
mentioned therein. Accordingly, the appellants submitted
their requisite documents to the authorities concerned for
regularisation of their services. However, their services
were terminated with effect from 31.1.81 by respondent No.2.
The termination order stated that "services of the employees
are terminated because these posts are no longer required."
The appellants challenged the aforesaid orders of
termination before the High Court in the Writ Petitions. The
High Court dismissed the writ petitions summarily on the
ground that the orders terminating services of the
appellants petitioners did not attach any stigma to the
service career of any of the appellants-petitioners, but
they are made in terms of employment.
1023
In appeal to the Supreme Court, it was contended on
behalf of the appellants : (i) that the impugned orders of
termination were based by way of punishment and cast stigma
on the appellants; and (ii) that persons who were recruited
later than the appellants were allowed to continue and to
remain in service to the detriment of the constitutional
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rights of the appellants and therefore, the impugned orders
of termination were discriminatory infringing Articles 14
and 16 of the Constitution. On the other hand Counsel for
the respondent argued : (i) that the orders of termination
have been made in accordance with the terms of the ad hoc
appointment of the appellants which provided that their
services can be terminated at any time without assigning any
reason and as such the impugned orders could not be assailed
on the ground of attaching any stigma to the service career
of the appellants; and (ii) that where the impugned order is
perse innocuous and it is made in accordance with the terms
of the appointment, the court should not delve into the
circumstances which were taken into consideration by the
authorities concerned in making the order.
Allowing the appeals,
^
HELD: 1. The impugned orders of termination of the
services of the appellants are liable to be quashed,
cancelled and set aside. Let appropriate writs of mandamus
be issued directing the respondents, not to give effect to
the impugned orders of termination of the services of the
appellants. A writ of certiorari be also issued quashing and
cancelling the impugned orders of termination of services of
the appellants and the appellants be deemed to be in
service. [1043 C-D] F
2.1 The mere form of the order is not sufficient to
hold that the order of termination was innocuous and the
order of termination of the services of a probationer or of
an ad hoc appointee is a termination simpliciter in
accordance with the terms of the appointment without
attaching any stigma to the employee concerned. It is the
substance of the order i.e. the attending circumstances as
well as the basis of the order that have to be taken into
consideration. [1041 E-F]
2.2 When an allegation is made by the employee
assailing the order of termination as one based on
misconduct though
1024
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. [1041 F-G]
Parshotam Lal Dhingra v. Union of India, [1958] S.C.R.
828; State of Punjab and Anr. v. Shri Sukh Raj Bahadur,
[1968] 3 S.C.R. 234; State of Bihar & Ors. v. Shiva Bhikshuk
Misra, [1971] 2 S.C.R. 191; State of Uttar Pradesh & Ors. v.
Sughar Singh, [1974] 2 S.C.R. 335; Shamsher Singh & Anr. v.
State of Punjab, [1975] 1 S.C.R. 814; Anoop Jaiswal v.
Government of India & Anr., [1984] 2 S.C.R. 369; and Nepal
Singh v. State of U.P.& Ors., A.I.R. [1985] S.C. 84 relied
upon.
In the instant cases, though the impugned orders were
made under the camouflage or cloak of orders of termination
simpliciter according to the terms of the employment, yet
considering the attendant circumstances which are basis of
the said orders of termination, there is no iota of doubt in
inferring that the orders of termination had been made by
way of punishment on the ground of misconduct and adverse
entry in service record without affording any reasonable
opportunity of hearing to the appellants whose services are
terminated and without complying with the mandatory
procedure laid down in Art. 311(2) of the Constitution of
India. Thus, the impugned orders terminating the services of
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the appellants on the ground that "the posts are no longer
required" are made by way of punishment. [1041 B-D; 1042 B]
3. The protection of Articles 14 and 16 of the
Constitution is available even to a temporary government
servant if he has been arbitrarily discriminated against and
singled out for harsh treatment in preference to his juniors
similarly circumstanced. [1042 G]
In the instant case, ad hoc services of the appellants
have been arbitrarily terminated as no longer required while
the respondents have retained other Surveyors who are
juniors to the appellants. Therefore, on this ground also,
the impugned order of termination of the services of the
appellants are illegal and bad being in contravention of the
1025
fundamental rights guaranteed under Articles 14 and 16 of
the Constitution of India. [1043 B-C]
State of Uttar Pradesh & Ors. v. Sughar Singh, [1974] 2
S.C.R. 335; and Manager Govt. Branch Press & Anr. v. D.B.
Belliappa, [1979] 2 S.C.R. 458 relied upon.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 230 &
231 of 1982.
From the Judgment and Order dated 20.2.1981 of the
Punjab & Haryana High Court in Civil Writ Petition No. 476
of 1981.
P.P. Rao and C.M. Nayar for the Appellants.
Harbans Lal and R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by n
RAY, J. These appeals on Special Leave are against the
judgment and orders passed by a Division Bench of the High
Court of Punjab & Haryana dismissing summarily the Writ
Applications being Civil Writ Nos. 476 and 484 of 1981 filed
by the appellants on the ground that the orders terminating
services of the petitioners did not attach any stigma to the
service career of any of the appellants-petitioners, but
they are made in terms of employment.
The appellants were appointed on ad-hoc basis as
Surveyors on various dates between December 1976 to November
1977 through Employment Exchange. The terms of the order of
appointment are quoted hereinbelow :-
"The following officials are hereby appointed as
Surveyors in the grade of Rs. 140-6-170/8-210/l0
300 upto 28.2.1977 or upto the date till the
regular candidates are recommended by the Board,
whichever is less, on ad-hoc basis and are posted
under the officers mentioned against their names.
Their services can be dispensed with any time
without any notice or reason. These candidates
will
1026
have to produce their concerned certificates to
the concerned officers before the submission of
the joining report."
The Government of Punjab in order to regularise the
services of all the ad-hoc employees who had completed the
minimum period of one year’s service on September, 1980
issued a Circular (Annexure ’B’) to the effect that the
services of the ad-hoc employees shall be regularised on
certain conditions mentioned therein. On being directed by
Respondents Nos. 3 and 4 the petitioners submitted the
requisite documents to the authorities concerned for
regularisation of their services. The service of the
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petitioners was, however, terminated with effect from
31.1.81 by the order of he Chief Conservator of Soils,
Punjab, Chandigarh, Respondent No.2.
The crucial question requires to be decided in the
instant appeals is whether the impugned order of termination
of services of the petitioners can be deemed to be an
innocuous order of termination simpliciter according to the
terms and conditions of the services without attaching any
stigma to any of the petitioners or it is one in substance
and in fact an order of termination by way of punishment
based on misconduct and made in violation of the procedure
prescribed by Article 311(2) of the Constitution of India.
In other words when the order of termination is challenged
as casting stigma on the service career, the Court can lift
the veil in order to find out the real basis of the impugned
order even though on the face of it the order in question
appears to be innocuous.
In order to decide this issue, it is necessary to
consider firstly the terms and conditions of appointment.
The appointments of the petitioners are purely temporary and
they have been appointed on ad-hoc basis "upto a certain
date or upto date till the regular candidates are
recommended by the Board, whichever is later." It was also
provided therein that their services can be dispensed with
any time without any notice or reason. The petitioners
undoubtedly worked as Surveyors since the date of their
appointment which in some cases in December 1976 and in some
cases on different dates between November, 1977 till 31st of
January, 1981 when their services were terminated. In the
order of termination it has
1027
been stated and "services of the employees are terminated
with effect from 31.1.81 because these posts are no longer
required". This order was made by the Chief Conservator of
Soils, Punjab, Respondent No.2.
An affidavit has been sworn by Ashok Kumar, the
petitioner No.2, on 18th March 1981 along with an
application for stay. In paragraph 3 of the said affidavit
it has been specifically stated :-
"(a) That the petitioner No.1 was accused of the
shortage of Rs. 7317.50, vide communication No. 1965 dated
12.11.1979 received from Assistant Soil Conservation
Officer, Budlada, District Bhatinda.
(b) That the deponent who is petitioner No.2 was
also accused of shortfall and a First Information
Report dated 20.8.1980 (No.2715) has been lodged
against him with Police Station Nahiwala (District
Bhatinda) in respect of the same.
(c) That Darshan Singh, the petitioner No.6, was
accused of shortages, vide communication No. l0351
dated 3.10.1980 received from the Conservator of
Soils, Ferozepur.
(d) That Satnam Raj, petitioner No.8 was also
accused of misappropriation vide communication No.
10360 dt. 3.10.1980.
(e) That Ramesh Singh, petitioner No.12 was
accused of shortages to the tune of Rs.14,000 and
was informed accordingly by the respondents.
(f) That similar allegations were made against the
remaining petitioners and they were branded as
incompetent and unfit for Government service.
Adverse entries were also made in the Annual
Reports.
In paragraph 4 of the said affidavit it has been
further averred that the above facts are true and correct to
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the knowledge of the deponent. It has also been stated that
the
1028
petitioners had prayed in the High Court to summon and
scrutinize the official records which would have clearly
indicated that the impugned orders of termination were based
by way of punishment and casts stigma on the petitioners.
In the Counter Affidavit sworn by C.M. Sethi, Chief
Conservator of Soils, Punjab, Chandigarh on behalf of
Respondents Nos. 1 to 7 on April 4, 1981 the statements in
paragraphs 3, 4 and 5 of the said affidavit have not at all
been controverted. In paragraph 4 of the said affidavit it
has been stated that annual/half yearly confidential reports
were written on the work and conduct of all ad-hoc employees
including the petitioners in the department. Therefore, it
is not correct to say that they learnt of their adverse
reports from the return filed in the High Court for the
first time.
An additional affidavit verified by C.M. Sethi, Chief
Conservator of Soils, Respondent No.2 on January 15, 1982
was filed. It has been stated in paragraphs 3, 4 and 5 of
the said affidavit :
"The claim of the petitioners that their record is
satisfactory and they have been performing their
duties efficiently was denied in connection with
their claim for regular appointment only and it
was stated strictly in connection with their claim
for regular appointment that some of them have
adverse record and there are
shortages/embezzlements and that the Departmental
selection Committee constituted by the Government
did not recommend them as fit for regular
appointment, in view of which they cannot be made
regular. me petitioners are quoting that
information as a ground for termination of their
services, out of context, which is not correct and
is denied.
The services of the petitioners were terminated on
the expiry of existing term of ad-hoc appointment
and not for the reason due to which they were
found to be not fit for regular appointment by the
Departmental Selection Committee.
According to the reports of the Field Officers the
1029
petitioners Sarvshri Natha Singh, Balbir Singh,
Ram Chand, Darshan Singh, Dalbir Singh, Sat Pal,
Nirmal Singh and Satnam Raj who had earned adverse
reports during the years 1979-80 and upto 9/80
were duly conveyed the adverse entries. It is,
therefore, denied that the adverse entries were
not conveyed to them."
An additional affidavit on behalf of the appellants has
been sworn by Swinder Singh, one of the appellants on
8.8.84. In paragraph 4 of the said affidavit it had been
averred that the following appellants were not communicated
any adverse report :- C
i) Jarnail Singh, Appellant No. 1 in Civil Appeal
No. 230/82.
ii) Ashok Kumar, Appellant No. 2 in Civil Appeal
No. 230/82. D
iii) Tajender Singh, Appellant No. 2 in Civil
Appeal No. 231/82.
iv) Nachhattar Singh, Appellant No. 4 in Civil
Appeal No. 231/82. E
v) Bagga Singh, Appellant No. 7 in Civil Appeal
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No. 230/82.
vi) Ramesh Singh, Appellant No. 12 in Civil Appeal
No. 230/82.
vii) Bura Singh, Appellant No. 5 in Civil Appeal
No. 231/82.
viii) Joginder Singh, Appellant No. 7 in Civil
Appeal No. 231/82.
It has been stated in paragraph 5 :-
"That the above names of the Appellants who were
not communicated any adverse reports are given in
view of the fact that the Respondent State has
1030
maintained that Appellants were communicated
adverse reports in accordance with the Rules and
they were not confirmed in view of these adverse
entries in the Confidential Rolls of the
Appellants ."
It has been stated in paragraph 6 of the said
affidavit :-
"That, it is however admitted, that the following
appellants were actually communicated adverse
reports, as late and closer to their date of
termination of their services, as is indicated in
the table below :-
Name of the Date of Date of
Appellant Report Communication of the
report
1. Roop Chand 29.1.81 29/30.1.81
2. Nathha Singh 6.10.80 December 1980
3. Dalbir Singh not known 24.1.1981
4. Darshan Singh 30.10.80 December 1980
5. Satnam Raj 25.10.80 December 1980
6. Nirmal Singh not known December 1980
7. Balbir Singh not known December 1980
8. Ram Chand Siv not known December 1980
9. Savinder Singh 28.10.80 End of January’81
10.Sakttar Singh 25.10.80 December 1980
(issued on 3.11.80)
11. Partap Singh 27.10.80 December 1980
(issued on 3.11.80)
12. Sat Pal 25.10.80 2.1.1981
(issued on 2.1.81)
13. Tarsem Lal 24.12.80 End of January ’81."
It has been stated in paragraph 7 of the said
affidavit:-
"That the following persons who were recruited
around the same time and were taken in service
also earned adverse reports and faced charges of
1031
embezzlement, but have been retained and A
regularised in service in preference to the
Appellants :-
(1) Gurbux Singh s/o Sohan Singh
(2) Mithoo Ram s/o Muleand Lal
(3) Gurcharan Singh s/o Hazara Singh
(4) Tulsa Singh s/o Surjeet Singh
(5) Vinay kumar Sawhney
(6) Kabul Singh s/o Tara Singh
(7) Daulat Ram s/o Gala Ram
(8) Chander Prakash s/o Sunder Lal
(9) Nirmal Singh s/o Sohan Singh
(l0) Gurbux Singh s/o Geja Singh
(11) Jaswant Singh s/o Chanchal Singh
(12) Ganda Singh s/o Hardit Singh
(13) Boota Singh s/o Anokh Singh
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(14) Manmohan Sood s/o Arjun Singh."
It has been stated in paragraph 8 of the said
affidavit:- D
"That there were other persons who were recruited
later than the Appellants but continue to remain
in service to the detriment of the Constitutional
rights of the Appellants."
It has been stated in paragraph 10 of the said
affidavit :
"That the respondent State framed false cases of
embezzlement against some of the appellants and
till todate no proceedings have been taken, nor
any inquiries instituted against, in regard to
those cases".
It has been stated in paragraph 13 of the said
affidavit :-
"That the Screening Committee was presided over by
the Chief Conservator of Soils, Punjab, Chandigarh
Shri C.M. Sethi, under whose administrative
control the Appellants’ Confidential Record was
written, and who has filed the Counter Affidavit
on behalf of the Respondents before this Hon’ble
Court."
1032
In the affidavit verified by Pritam Singh, Chief
Conservator of Soils, Punjab, Chandigarh on 22nd November
1984, it has been stated in paragraph 4 that :-
"It is wrong that there were adverse remarks
against Sarvshri Jarnail Singh, Ramesh Singh and
Bura Singh which were required to be communicated
to them. In respect of others there were adverse
remarks which were communicated through letters
mentioned below
1) Sh. Ashok Kumar According to the
record available
adverse remarks
were conveyed by the
Conservator of
Soils, Ferozepur to
the Divisional Soil
Conservation
Officer, Bhatinda
vide letter No.
11427 dated 28.10.80
for its further
communication to the
official concerned.
(2) Tejinder Singh Adverse remakrs were
conveyed by the
Conservator of
Soils, Ferozepur to
the Divisional Soil
Conservation
Officer, Bhatinda
vide No. 11429 dated
27.10.80 for further
communication to the
official concerned.
3) Nachhatar Singh Adverse remarks were
conveyed by the
Conservator of
Soils, Ferozepur to
the Divisional Soils
Conservation
Officer, Bhatinda
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vide No.
10355 dated 3.10.80
for further
communication to the
official concerned.
1033
4) Joginder Singh Adverse remarks were conveyed
by the Conservator of soils,
Ferozepur to the Divisional
Soil Conservation Officer,
Bhatinda vide No. 11813 dated
4.11.80 for further
communication to the official
concerned
5) Bagga Singh Communication reference is not
available on record.
The services of the petitioners were terminated on
the expiry of existing term of ad-hoc appointment
and not for the reason due to which they were
found to be not fit for regular appointment by the
Departmental Selection Committee."
It has further been stated in paragraph 6 and 7 of the
said affidavit.
"That the adverse entries of the period varying
from 10/80 to 1/81 have been communicated to them
in December, 1980, January, 1981. As this period
is nearer to their date of termination of services
so they were to be communicated these remarks at
that time only.
It is incorrect to the extent that the persons
named below earned adverse remarks and had charges
of shortages/embezzlement.
i) Mithu Ram s/o Mukan Lal
ii) Gurcharan Singh s/o Hazara Singh
iii) Kabul Singh s/o Tara Singh
iv) Daulat Ram s/o Gala Ram
v) Chander Prakash s/o Sunder Lal
vi) Gurbux Singh s/o Geja Singh
vii) Jaswant Singh s/o Chanchal Singh
viii) Ganda Singh s/o Hardit Singh
ix) Boota Singh s/o Anokh Singh
x) Manmohan Sood s/o Arjun Singh
1034
However, in the case of remaining persons namely
Sarvshri (i) Gurbux Singh, s/o Sohan Singh, (ii)
Tulsa Singh s/o Surjit Singh (iii) Nirmal Singh
s/o Sohan Singh (iv) Vinay Kumar s/o Shri Ram,
there were adverse remarks against these persons
and the Departmental Selection Committee examined
their record of service and found them fit for
regular appointment. me Departmental Selection
Committee was fully competent to select or reject
any of the candidates for regular appointment in
accordance with the Government instructions on the
subject."
It has also been stated in paragraph 8 of the said
affidavit that the Departmental Selection Committee in
accordance with the Government instructions as contained in
Government Notification dated 28.10.1980 considered the
cases of all eligible persons including the appellants and
the persons cited in the list for appointment on regular
basis and the appellants were not found fit for appointment
on regular basis by the Committee. Thus the appellants were
afforded full opportunity to compete and as such no
constitutional right of the appellants was infringed.
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It thus appears on a consideration of the averments
made in the affidavit verified on behalf of the petitioners
as well as on behalf of the respondents that the impugned
order of termination of service of the petitioners had been
made on the ground that there were adverse remarks in the
service records of the petitioners as well as there were
serious allegations of embezzlement of funds against some of
the petitioners. It is quite clear that on consideration of
all these adverse entries in the service record as well as
serious allegations relating to misconduct, the petitioners
were not considered fit by the Departmental Selection
Committee to recommend the petitioners for regularisation of
their services as Surveyors. The impugned orders of
termination of services of the petitioners are really made
by way of punishment and they are not termination
simpliciter according to terms of the appointment without
any stigma as wrongly stated. It is indisputed that the
Respondents Nos. 2 and 3 did not follow the mandatory
procedure prescribed by Article 311(2) of the Constitution
in making the purported orders of termination of services of
the petitioners on the ground of misconduct and thus there
has
1035
been a patent violation of the rights of the petitioners as
provided in Article 311(2) of the Constitution. There is no
room for any doubt that the impugned orders of termination
of services of the petitioners had been made by way of
punishment as the allegations of embezzlement of funds as
well as adverse remarks in the service records of these
petitioners were the basis and the foundation for not
considering the petitioners to be fit for being regularised
in their services in accordance with the Government Circular
dated October 28, 1980. Therefore, it is clear and evident
in the context of these facts and circumstances of the case
that the impugned order of termination though couched in the
innocuous terms as being made in accordance with the terms
and conditions of the appointment, yet the impugned order of
termination of services of the petitioners were in fact made
by way of punishment being based on the misconduct. There is
also no denial of the specific averments made in the
paragraph 8 of the Additional Affidavit sworn by one of the
appellants Swinder Singh on August 8, 1984 that persons who
were recruited later than the appellants were allowed to
continue and to remain in service to the detriment of the
Constitutional rights of the appellants. The impugned order
of termination was, therefore, also assailed on the ground
of discrimination, infringing Articles 14 and 16 of the
Constitution of India.
It is vehemently urged on behalf of the respondents
that the orders of termination have been made in accordance
with the terms of the ad-hoc appointment of the petitioners
which provided that their services can be terminated at any
time without assigning any reason and as such the impugned
orders could not be assailed on the ground of attaching any
stigma to the service career of the petitioners. It has also
been urged that where the impugned order is perse innocuous
and it is made in accordance with the terms of the
appointment, the court should not delve into the
circumstances which were taken into consideration by the
authorities concerned in making the order. In other words it
has been urged that In such cases it is not for the Court to
enquire into the basis of the order and to see if the same
was in fact made by way of punishment having evil
consequences or not.
The petitioners are undoubtedly temporary ad-hoc
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employees having no right to the posts they hold. In the
case of Parshotam Lal Dhiogra v. Union of India, [1958]
S.C.R. 828 it has been observed by this court as follows :-
1036
"In short, if the termination of service is
founded on the right flowing from contract or the
service rules then, prima facie, the termination
is not a punishment and carried with it no evil
consequences and so Article 311 is not attracted;
But even if the Government has, by contract or
under the rules, the right to terminate the
employment without going through the procedure
prescribed for inflicting the punishment of
dismissal or removal or reduction in rank, the
Government may, nevertheless, choose to punish the
servant and if the termination of service is
sought to be founded on misconduct, negligence,
in-efficiency or other disqualification, then it
is a punishment and the requirements of Article
311 must be complied with....... "
In the case of State of Punjab & Anr. v. Shri Sukh Raj
Bahadur, [1968]3 S.C.R. 234 the following prepositions were
laid down by this Court while considering the question
whether in case of termination of service of a temporary
servant or a probationer, Article 311(2) of the Constitution
would be affected or not. The prepositions are as follows :-
"1. The services of a temporary servant or a
probationer can be terminated under the rules of
his employment and such termination without
anything more would not attract the operation of
Article 311 of the Constitution.
2. The circumstances preceding or attendant on the
order of termination have to be examined in each
case the motive behind it being immaterial.
3. If the order visits the public servant with any
evil consequences or casts an aspersion against
his character or integrity, it must be considered
to be one by way of punishment, no matter whether
he was a mere probationer or a temporary servant.
4. An order of termination of service in
unexceptionable form preceded by an enquiry
launched by the superior authorities only to
ascertain whether the public servant should be
1037
retained in service does not attract the operation
of Article 311 of the Constitution.
5. If there be a full-scale departmental enquiry
envisaged by Article 311 i.e. an Enquiry Officer
is appointed, a charge sheet submitted,
explanation called for and considered, any order
of termination of service made thereafter will
attract the operation of the said article."
This decision was considered by this Court in the case
of State of Bihar & Ors. v. Shiva Bhikshuk Misra, [1971] 2
S.C.R. 191 in connection with the reversion of an
officiating Subedar Major to his substantive post of
Sergeant. In that case the respondent held the substantive
post of Sergeant in the Bihar Police Force till July 31,
1946. On August 1, 1946 he was promoted to the higher post
of Subedar. In January 1948 he was further promoted to
officiate temporarily as Subedar Major. In October 1950, the
Commandant of the Bihar Military Police, Muzaffarpur wrote
to the Deputy Inspector of Police, Armed Forces suggesting
that he should be censured for having assaulted an orderly.
Thereafter, the Inspector General of Police reverted the
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respondent to the post of Sergeant. m e said order of
reversion was challenged and it was held by this Court that
:-
"So far as we are aware no such rigid principle
has ever been laid down by this Court that one has
only to look to the order and if it does not
contain any imputation of misconduct of words
attaching a stigma to the character or reputation
of a Government Officer it must be held to have
been made in the ordinary course of administrative
routine and the court is debarred from looking at
all the attendant circumstances to discover
whether the order had been made by way of
punishment. The form of the order is not
conclusive of its true nature and it might merely
be a cloak or camouflage for an order founded on
misconduct. It may be that an order which is
innocuous on the face and does not contain any
imputation of misconduct is a circumstance or a
piece of evidence for finding whether it was made
by way of punishment or
1038
administrative routine. But the entirety of
circumstances preceding or attendant on the
impugned order must be examined and the overriding
test will always be whether the misconduct is a
mere motive or is the very foundation of the
order.
The order of reversion was held to be by way of
punishment and as such it was set aside.
In the case of State of Uttar Pradesh & Ors. v. Sughar
Singh, [1974] 2 S.C.R. 335 a permanent Head Constable in the
U.P. Police Force was appointed as officiating Platoon
Commander in the combined cadre of Sub Inspector, Armed
Police and Platoon commander. He was subsequently reverted
to the substantive post of Head Constable in 1968. At the
time of reversion he was one among a group of about 200
officers most of whom were junior to him. Two questions
arose, namely whether the order of reversion is attendant
with any stigma and secondly whether there has been any
discrimination violating Article 14 and 16 of the
Constitution. It was held that so far as reversion is
concerned, the order of reversion did not cast any stigma,
not it has any evil consequences as the respondent neither
lost his seniority in the substantive rank, nor there has
been any forfeiture of his pay or allowances. It was also
held that the order was liable to be quashed on the ground
of contravention of Article 14 and 16 of the Constitution
inasmuch as while the respondent had been reverted, his
juniors were allowed to retain their present status as Sub
Inspector and they have not been reverted to the substantive
post of Head Constable. It was further held that there was
no administrative reason for this reversion, so the order
was held bad.
The question whether the order terminating the service
of a probationer made according to the terms of appointment
can never amount to punishment in the facts and
circumstances of the case was considered by a Bench of 7
Judges of this Court in the case of Shamsher Singh & Anr. v.
State of Punjab, [1975] 1 S.C.R. 814. In that case the
services of two Judicial Officers who were on probation were
terminated by the Government of Punjab on the recommendation
of the High Court under Rule 7(3) in Part of the Punjab
Civil Services
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(Judicial Branch) Rules 1951 as amended. The services of the
A probationers were terminated without saying anything more
in the order of termination. This was challenged on the
ground that though the order on the face of it did not
attach any stigma, yet the attendant circumstances which led
to passing of the order if considered then the orders would
amount to have been made by way of punishment violating
Article 311 of the Constitution. It has been observed
relying on the observations of this Court in Parshotam Lal
Dhingra v. Union of India, by A.N. Ray, C.J. as follows :-
"No abstract proposition can be laid down that
where the services of a probationer are terminated
without saying anything more in the order of
termination that the services are terminated it
can never amount to a punishment in the facts and
circumstances of the case. If a probationer is
discharged on the ground of misconduct, or
inefficiency or for similar reason without a
proper enquiry and without his getting a
reasonable opportunity of showing cause against
his discharge it may in a given case amount to
removal from service within the meaning of Article
311(2) of the Constitution."
This decision was followed and relied upon in the case
of Anoop Jaiswal v. Government of India & Anr., [1984] 2
S.C.R. 369. In that case the appellant being selected for
appointment in the I.P.S. were undergoing training as a
probationer. On a particular day all the trainees arrived
late at the place where P.T./unarmed combat practice was to
be conducted, although prior intimation was sent to them in
this regard. This delay was considered as an incident which
called for an enquiry. The appellant was considered to be
one of the ring leaders who was responsible for the delay.
Explanation was called for from all the probationers. The
appellant in his explanation sincerely regretted the lapse
while denying the charge of instigating others in reporting
late. After receiving the explanations, all the probationers
including the appellant were individually interviewed in
order to ascertain the facts. On the basis of the
explanation and interview, but without holding any proper
enquiry the Director recommended to the Government of India
that the appellant should be
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discharged from the service. The Government accordingly
passed an order of discharge of the appellant on the ground
of unsuitability for being a member of the I.P.S. mis order
was challenged in the Writ Petition. It has been held as
follows:-
"Where the form of the order is merely a
camouflage for an order of dismissaly 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."
The order was held to be bad as it was made on the
ground of misconduct without affording reasonable
opportunity to the appellant to defend himself as provided
under Article 311(2) of the Constitution.
In the case of Nepal Singh v. State of U.P. & Ors.,
A.I.R. 1985 S.C. 84 the service of the appellant Nepal
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Singh, who was employed in temporary capacity as Sub
Inspector of Police, was terminated by an order of Deputy
Inspector General of Police, Bareilly Range and the order
merely stated that the appellant’s services were not
required any more and were terminated with one month’s pay
in lieu of notice. This order was challenged on the ground
that Lt amounted to punishment and since no opportunity of
hearing, as provided in the Article 311(2) of the
Constitution, was afforded, the impugned order was liable to
be quashed and set aside. It transpired at the time of
hearing that a disciplinary proceeding was initiated against
the appellant on the ground that he contracted the second
marriage during the life time of his first wife and this act
was done without obtaining prior permission of the
Government. mis disciplinary proceeding, however, was not
proceeded with. Thereafter the Superintendent of Police,
Shahjahanpur drew up a list to the effect that he was a
corrupt officer and he was not straight-forward. The
impugned order was made thereafter. It was held that where
allegations of misconduct were levelled against a Government
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servant and it was a case where provisions of Article 311(2)
of the Constitution should apply, it was not open to the
competent authority to take the view that holding the
enquiry contemplated by that clause would be a bother or a
nuisance and that, therefore, it was entitled to avoid the
mandate of that provision and resort to the guise of an ex
facie innocuous termination order.
In the instant case as we have stated already
hereinbefore that though the impugned order was made under
the camouflage or cloak of an order of termination
simpliciter according to the terms of the employment, yet
considering the attendant circumstances which are the basis
of the said order of termination, there is no iota of doubt
in inferring that the order of termination had been made by
way of punishment on the ground of misconduct and adverse
entry in service record without affording any reasonable
opportunity of hearing to the petitioners whose services are
terminated and without complying with the mandatory
procedure laid down in Article 311(2) of the Constitution of
India.
The position is now well settled on a conspectuous of
the decisions referred to hereinbefore that the mere form of
the order is not sufficient to hold that the order of
termination was innocuous and the order of termination of
the services of a probationer or of an ad-hoc appointee is a
termination simpliciter in accordance with the terms of the
appointment without attaching any stigma to the employee
concerned. It is the substance of the order i.e. the
attending circumstances as well as the basis of the order
that have to be taken into consideration. In other words,
when an allegation is made by the employee 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 case, will lift the veil and
will see whether the order was made on the ground of
misconduct inefficiency or not. In the instant case we have
already referred to as well as quoted the relevant portions
of the averments made on behalf of the State respondent in
their several affidavits alleging serious misconduct against
the petitioners and also the adverse entries in the service
records of these petitioners, which
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were taken into consideration by the Departmental Selection
Committee without giving them any opportunity of hearing and
without following the procedure provided in Article 311(2)
of the Constitution of India, while considering the fitness
and suitability of the appellants for the purpose of
regularising their services in accordance with the
Government Circular made in October, 1980. mus the impugned
orders terminating the services of the appellants on the
ground that "the posts are no longer required" are made by
way of punishment.
It also appears on a consideration of the averments
made in paragraphs 7 and 8 of the Additional Affidavit sworn
by one of the appellants Swinder Singh on August 8, 1984,
which has not been controverted at all by the respondent,
that the respondents though terminated the services of the
petitioners on the ground that "these posts are no longer
required" have retained and regularised the service of ad-
hoc employees mentioned in paragraph 7 as well as ad-hoc
Surveyors who were recruited later in the said post of
Surveyors to the prejudice of the rights of the appellants,
thereby violating the salutary principle of equality and
non-arbitrariness and want of discrimination and as
enshrined in Articles 14 and 16 of the Constitution of
India. It is pertinent to refer here to the decision
rendered by this Court in Sughar Singh’s case where it had
been held that the order of reversion reverting the
respondent from his officiating appointment to the post of
Platoon Commander to the post of permanent Head Constable
while retaining 200 other Head Constables who were junior to
him in the officiating higher posts of Platoon Commanders
was discriminatory and arbitrary being in contravention of
the Articles 14 and 16 of the Constitution.
Similar observations have been made in the case of
Manager Govt. Branch Press & Anr. v. D.B. & Belliappa [1979]
2 S.C.R. 458. It has been held that the protection of
Articles 14 and 16 of the Constitution will be available
even to a temporary Government servant if he has been
arbitrarily discriminated against and singled out for harsh
treatment In preference to his juniors similarly
circumstanced. In that case the service of Belliappa, a
temporary Class IV employee was terminated without assigning
any reason although in accordance with he conditions of his
service, three other employees similarly situated, junior to
Belliappa in the said
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temporary cadre, were retained. The order of termination was
held to be bad as it offended the equity clause in Article
14 and 16 of the Constitution.
In the instant case, ad-hoc services of the appellants
have been arbitrarily terminated as no longer required while
the respondents have retained other Surveyors who are
juniors to the appellants. Therefore, on this ground also,
the impugned order of termination of the services of the
appellants are illegal and bad being in contravention of the
Fundamental rights guaranteed under Articles 14 and 16 of
the Constitution of India.
In the premises aforesaid, the impugned orders of
termination of the services of the appellants are liable to
be quashed, cancelled and set aside. Let appropriate writs
of mandamus be issued directing the respondents, not to give
effect to the impugned orders of termination of the services
of the appellants. Let a writ of certiorari be issued
quashing and cancelling the impugned orders of termination
of services of the appellants and the appellants be deemed
to be in service.
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In the facts and circumstances of the case, the appeals
are allowed with costs assessed at Rs. 2,000.
M.L.A. Appeals allowed.
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