Chandra Parkash Shahi v. State of U.P. and Ors.

S. SAGHIR AHMAD, J. Leave granted. What is "motive"; what is "foundation"; what is the difference between the two; these are questions which are said to be still as baffling as they were E when Krishna Iyer, J. in Samsher Singh v. State of Punjab, [1974] 2 SCC 831 =- [1975] 1 SCR 814 = AIR (1974) SC 2192, observed as under : "Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune? Jf you conscieniiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however, harmlessly the order may be phrased. And so, this sphinx-complex has had to give way in later cases.· In some cases the rule of guidance has been stated to be 'the substance of the matter' and the 'foundation' of the order. When does 'motive' trespass into 1oundation'? When do we lift the veil of 'form' to touch the 'substance'? When the Court says so. These 'Freudian' frontiers obviously fail in the work-a-day world." But, as we shall presently see, the law, on account of recent judgments concerning the services of a probationer, is fairly well-settled and there is no cause for being confounded or bewildered. The perplexity which, at one time, A surrounded the torrid question involved in this case has yielded to the clarity of reasons propounded by this Court from time to time in recent times to which a reference shall be made during the course of this discussion. The appellant was recruited on 1.10.1985 as a Constable in 34th Battalion, Pradeshik Armed Constabulary, U.P. under the U.P. Pradeshik Armed Constabulary Act, 1948. He completed his training on 6th of Septem­ ber, 1986 and was, thereafter, placed on probation for a period of two years. He completed his period of probation on 5th of September, 1988 but a year later, on 19th of July, 1989, his services were terminated by a simple notice in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. The order of termination was challenged by the appellant before the U.P. Public Service Tribunal which, by its judgment dated 18.1.1993, allowed the claim petition and set aside the order dated 19.7.1989 by which the services of the appellant were terminated. Respondents 1 and 2, thereafter, approached the High Court through a Writ Petition which was allowed on 27th of November, 1997 and the judgment passed by the Tribunal was set a~ide. Learned counsel for the appellant has contended that the order by which the services of the appellant were terminated, though innocuous apparently, was, in fact, punitive in nature. The appellant, it is contended, could not have been removed from service without holding a regular departmental enquiry. It is further contended that the courts including the Tribunal constituted under the U.P. Public Services (Tribunal) Act, 1976 have full jurisdiction to go behind the order to find out whether it was an order of termination simpliciter or it was an order passed by way of punishment. It is pointed out that this aspect of the matter was considered by the Tribunal which, on the basis of the facts set out in the counter-affidavit filed on behalf of the respondents as also the entire service record of the appellant which was produced before it, came to the conclusion that the order was punitive in nature. This fmding, it is· contended, could not have been disturbed by the High Court in a Writ Petition under Article 226 of the Constitution. Learned counsel for the respondents has, on the contrary, contended that the appellant was a temporary employee and, therefore, his services could be terminated at any time by giving him a month's notice in terms of U.P. Temporary Government Servants (Termination of Service) Rules, 1975. In the Counter-Affidavit filed before the Tribunal before which the order dated 19.7.1989 (termination order) was challenged by the appellant, it was, inter alia, stated that on 24th of June, 1989 while camping -\ _A I C.P. SHAHI v. STATE [S. SAGHIR AHMAD, J.] 535 at Ghat Varanasi for Flood Relief Training, a quarrel had taken place between two Constables as a result of which Constable Aron Prakas Tewari used filthy and unparliarnentaiy language against Constable Radhey Shyarn Pandey. He also caused injuries to Constable Radhey Shyam Pandey by kicks and fists. He was joined by Constable Rajesh Kumar Pandey. Other Constables also joined the fray. A preliminary enquiry was conducted by Shri Kailash Chaube, Assistant Commandant, P.A.C. and a few constables including the appellant were found guilty of indiscipline and misbehaviour and it was for this reason that the services of the appellant were terminated. The respondents admitted in the counter- affidavit that there was no adverse material against the appellant before the incident in question. The original records which were produced before the Tribunal and were scrutinised by it indicated that the C order by which the services of the appellant were terminated was passed on account of his alleged involvement in the quarrel between the constables at the Ghat Varanasi Camp. The Tribunal has found as under:- "The preliminary enquiry file No.Ja-2/89 relating to the petitioner and other constables of 34th Bn. P.A.C. Varanasi from page 21134 to 22/ 33 dated 26.6.89 shows that the enquiry was conducted by Sri Kailash Chaube, Assistant Commandant, 34th Bn. P.A.C. Varanasi and in the preliminary enquiry report he concluded at pages 21134 to 22/j 7 that the petitioner along with others had indulged in a misconduct of hurling blows and used filthy language to the superior officers of the Department and he was found guilty along with others for the said misconduct and misbehaviour. Thereafter on internal page 6 the impugned order of termination dated 19.7.89 was passed in respect of the petitioner and on the same day he was served the copy of the order." It was in view of the above finding that the termination order was held to be punitive in nature and was consequently set aside by the Tribunal but the High Court relying upon the decision of this Court in State of U.P. v. Kaushal Kishore Shukla, [1991] 1 SCC 691 = [1991] 1 SCR 29, quashed the order of the Tribunal. The first contention of the learned counsel for the appellant is about the status of the appellant. Learned counsel has contended that the appellant could not have been legally removed from service, except by way of disciplinary action in accordance with the requirements of Article 311(2) of the Constitu- tion. It is contended that after completion of the period of probation, the H 536 SUPREME COURT REPORTS [2000) 3 S;C.R A appellant had acquired 'permanent' status and, therefore, his services ·could ~ not have been terminated by a mere riotice or a monrh' s pay in lieu thereof. This argunient cannot be accepted. ... . ' .. An assertion rhat on completion of rhe period of probation the appellant had acquired 'permanent' status is based on a misreading of the provisions of Para 541 of the U.P. Police Regulations, relevant portion of which is quoted below : "541. (1) Recruits will be on probation for a period of two years, except that -- (a) those recruited directly in the Criminal Investigation Department or Districts Intelligence Staff will be on probation for three years, and (b) those transferred to the Mounted Police will be governed by the directions contained in paragraph 84 of the Police Regulations. If during rhe period of probation their conduct and work _have been satisfactory and they are approved by the Deputy Inspector General of Police at the end of the period of probation for service in the force the Superintendent of Police will confirm them in their appointmenL" A perusal of the above provision would indicate that the period of probation is two years. The Regulation is silent as to the maximum period beyond which the period of probation cannot be extended. In the absence of this prohibition, even if the appellant completed two years of probationary period successfully and without any blemish, his period of probation shall be treated to have been extended as a 'permanent' status can be acquired only by means of a specific order of confirmation. This Court in State of Punjab v. Dharam Singh, [1968) 3 SCR 1 =AIR (1968) SC 1210 ruled out the proposition of automatic confomation on completion of the period of probation. This Court ruled that the 'permanent' status can be acquired only by a specific order confirming the employee on the post held by him on probation. To the same effect is the decision in Partap Singh v. U.T. of Chandigarh, [1979] 4 SCC 263 = [1980] 1 SCR 487 =AIR (1980) SC 57. In Municipal Corporation, Raipur v. Ashok Kumar Misra, (1991) 3 SCC 325 = [1991) 2 SCR 320 = AIR (1991) SC 1402, the same principles were reiterated. In view of the above, the contention that the H appellant had acquired 'permanent' status cannot be accepted. His status was C.P. SHAHI v. STATE [S. SAGHIR AHMAD, J.] , that of a probationer. 537 Now, it is well-settled that the temporary Government servants· or probationers are as mm.:h entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be te1minated at any time b}'. ~ving them a mont.lt' s notice without ass.igning . :e any reason either in terms of the contract of service or under· the relevant statutory rules regulating the terms and conditions of such service. The courts can, therefore, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is as innocent as worded. (See: Parshotam Lal Dhingra v. Union of India, AIR (1958) SC 36 = [1958] SCR 828). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors fc;ir inducing the Govelllm.ent to te1minate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was "founded" on those factors or other disqualifications. Following the decision of Parshottam Lal Dhingra's case (supra), this Court in State of Biharv. Gopi Kishore Prasad, AIR (1960) SC 689, held that if the services of a probationer are terminated on the basis of an enquiry into the allegations of misconduct and inefficiency, the order would be punitive. It was pointed out that in the case of a probationer, it is always open to the Government to hold an enquiry merely to assess the merits of the employee to find out whether he was fit to be retained in service and confirmed. In another case relating to a probationer, namely, in State of Orissa v~ Ram Narayan Das, [1961] 1 SCR 606 =AIR (1961) SC 177, where the services were governed by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules which provided that where the services of a probationer were intended to be terminated either during the period of probation or at the end of that period for any fault or on account of his unsuitability, be would be apprised of the grounds of unsuitability and would also be afforded an opportunity to show-cause against it before orders are passed against him, it was held that the tennination order would not become punitive merely because of an antecedent enquiry but the real object or purpose of the enquiry had to be found out whether it was held merely to assess the general unsuitability of the employee or it was held into charges of misconduct or inefficiency etc. In Ranendra Chandra Banerjee v. Union o.f India, AIR (1963) SC 1552 = [1964] 538 SUPREME COURT REPORTS (2000) 3 S.C.R. 2 SCR 135, which again was a case relating to a probationer, it was held that on account of Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules if the enquiry was held for the limited purpose of finding out whether the employee was fit to be retained or not, the said enquliy would not make the order punitive as the enquiry could not be related to any misconduct of the employee. This view was reiterated in Jagdish Mitter v. Union of India, AIR (1964) SC 449. In Madan Gopal v. State of Punjah, AIR (1963) SC 531 = (1963) Supp.(3) SCR 716, the order by which the services of the employee were terminated was an order simpliciter in nature, which was innocuously worded, but it was held by this Court that the form of the order was not decisive and the Court could go behind that order to fmd out whether it was founded upon the misconduct of the employee. T'1ese cases, namely, State of Bilzar v. Gopi Kishore Prasad, AIR (1960) SC 689; State of Orissa v. Ram Narayan Das, (1961) 1 SCR606 =AIR (1961) SC 177; Madan Gopal v. State of Punjab, (1963) Supp. 3 SCR 716 =AIR (1963) SC 531; and Jagdish Mitter v. Union of India, AIR (1964) SC 449 were considered by this Court in Champaklal Chimanlal Shah v. Union of India, [1964] 5 SCR 190 =AIR (1964) SC 1854 where the services of the appellant, who was a temporary employee, were terminated by giving him a simple notice specifying therein that the services would stand terminated with effect from the date mentioned therein. But, before the termination of his services, ..lfllt' E he was called upon to explain certain irregularities and was also asked to submit his explanation, but no regular departmental enquriy was held. It was held that since no punitive action was taken against the appellant, there was no question of the applicability of Article 311(2) of the Constitution. In another significant decision in State of Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234 = AIR (1968) SC 1089 where the respondent, who was officiating in the Punjab Civil Service (Executive Branch) was reverted to his substantive post in the Delhi Administration after issuing him a charge sheet to which a reply was submitted by the respondent but the disciplinary enquiry was not proceeded with, and an order of reversion was passed, it was held that the order could not be treated to have been passed by way of punishment. The Court laid down the following propositions : "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 Art. 311 of the Constitution. C.P. SHAID v. STATE [S. SAGHIR AHMAD, J.] 539 ~-.:.( 2. The circumstances preceding or attendant on the order of termina- A tion of service 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 B considered to be one by way of punishment, no matter whether he was a mere probationer or a temponuy servant. ..... 4. An order of termination of service is unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, c does not attract the operation of Art. 311 of the Constitution. 5. If there be a full-scale depaitmental enquiry envisaged by Art. 311, i.e. an Enquiry Officer is appointed, a charge-sheet submitted, expla- nation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article." D These principles as also the principle laid down in Champaklal's case (supra) were reiterated by this Court in Union of India and Ors. v. R.S. Dhaba, [1969] 3 SCC 603; State of Bilzar v. Shiva Bhikshuk Mishra, [1970] 2 SCC 871 = [1971] 2 SCR 191 =AIR (1971) SC 1011; R.S. Sial v. State of U.P., E [1974] 3 SCR 754 =AIR (1974) SC 1317 = [1975] 3 SCC 111 and it was laid down that in order to attract the provisions of Article 311 (2) it has to be seen whether the misconduct or negligence was a mere motive for the order of reversion or termination or whether it was the very foundation of that order. It was again reiterated that the form of the order was not conclusive of its true nature and the Court has to examine the entirety of circumstances preceding F or attendant on the order of termination. To the same effect is the decision of this Court in State of U.P. v. Sughar Singh, (1974] 1 SCC 218 = (1974] 2 SCR 335 = AIR (1974) SC 423, which related to reversion and in which reliance was placed on two earlier decisions in Madhav Laxman Vaikunthe v. State of Mysore, AIR (1962) SC 8 = (1962] 1 SCR 886 and State of Bombay v. F.A. G Abraham, AIR (1962) SC 794 = [1962] Supp. 2 SCR 92. It was, however, laid ), down that if the order visits the employee with penal consequences, the order would be punitive. It was for this reason that the order of reversion in that case was held to be bad. In the same year, came the Seven-Judge Bench decision of this Court H 540 . SUPREME COURT REPORTS [~~00} 3 S.C.R. in Samsher Singh v. State of Punjab, f1974] 2 SCC 831 =AIR (197,4) SC 2192 = (1975) 1 SCR 814, in which "Motive" and· "Foundation" theory was reiterated and it was laid down that the question whether an order terminating the services of a temporary employee or a probationer was by way of punishment or not would depend on the facts and circumstances of each case. The form of the order, it was observed, was not conclusive and an innocuously worded order, terminating the services of a temporary employee or a proba­ tioner may, in the facts of the case, be found to have been passed on account of serious and grave misconduct in utter violation of Article 3,11(2) of the Constitution. This decision was followed in State of Punjab v. P.S. Cheema, AIR (1975) SC 1096 = (1975) 4 SCC 84 and the termination order, regarding which a concurrent finding of fact was recorded by the trial court, the lower appellate court and also by the High Court in second appeal that it was punitive in nature, was held to be bad. D While the judicial pronouncements stood at that stage, the entire case law was reviewed by this Court in State of U.P. v. Ram Chandra Trivedi, AIR (1976) SC 2547 = (1976] 4 SCC 52 = [1977) 1 SCR 462, in which it was contended that the legal and Constitutional position with regard to an order of termination was not settled as there were conflicting decisions of this Court E on that question. This contention was not accepted and on a review of the entire case law, including the Seven- Judge Bench decision in Sams her Singh' s case (supra), it was laid down that the Court has consistently held that the "motive", in passing an order of termination or reversion, operating in the minds of the Govt. was not a relevant factor for determining whether the order was passed by way of punishment. What was determinative of the true nature F of the order was not its exterior form but the "foundation" on which it was based. If misconduct or negligence was the foundation of the order of termination, or for that matter, reversion, the order would be punitive in nature. The Court also referred to the decision in Regional Manager v. Pawan Kumar Dubey, (1976] 3 SCC 334 =AIR (1976) SC 1766 = [1976) 3 SCR 540, in G which it was observed as under : "We think that the principles involved in applying AI1icle 311(2) having been sufficiently explained in Shamsher Singh's case AIR (1974) SC 2192 (supra) it should no longer be possible to urge that Sughar Singh's case (supra) could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared I • ·' ( .4- C.P. SHARI v. STATE [S. SAGHIR AHMAD, J.] 541 and applied so often have really changed. But the application of the A ~ same law to the different circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some confUct,. it would, we think, vanish when the ratio decidendi of each case is correctly B understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi ~ and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of differ- ence between conclusions in two cases eyen when the same principles are applied in each case to similar facts." c (Emphasis supplied) Termination simpliciter of a temporary Govt. servant on the ground of - • unsuitability does not attract the provisions of Article 16, nor is the protection under Article 311 (2) of the Constitution available to a temporary Govt. servant D unless the termination involved "stigma", was the dictum laid down by this Court in Commodore Commanding, Southern Naval Area, Cor:hin v. V.N. Rajan, [1981] 2 SCC 636 = AIR (1981) SC 965 = (1981) 3 SCR 165. ,~, In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, ~ [1980] 2 sec 593 = (1980) 1 LLJ 137 = [1980] 2 SCR 146 = AIR (1980) SC 1896, it was laid down .hat a Court or Tribunal is entitled to find out the E true nature of the te1mination order, namely, whether it is punitive or not. In this regard, the fo1m of the order will not be decisive and the Court can lift the veil to see the true nature of the order. The Court observed that the substance, not semblance, governs the decision. The Court further observed that what was decisive was the plain reason for the discharge and not the F ~ strategy of a non-enquiry. If the basis was not the misconduct, the order could be saved. The Court further observed that the mere fact that after being satisfied of the guilt the Govt. abandons the enquiry and proceeds to terminate the services by a simple order, would not be the relevant factor in considering the true nature of the order. Given an alleged misconduct and a live nexus G between it and the termination of services, the conclusion would be "dis- _. missal" even if full benefits, as on simple termination, are given and non- injurious terminology is used. '<' The tests for determining · whether termination was a termination H ~ ~ 0 542 SUPREME COURT REPORTS . (2000] 3 S.C.R. A simpliciter or by way of punishment laid down in earlier decisions were ')5. ' reiterated in Oil & Natural Gas Commission v. Md. S. Iskender Ali (Dr.), .-- (1980] 3 sec 428 = (1980) 2 LLJ 155 = (1980] 3 SCR 603 = AIR (1980) ' ~ SC 1242 and Nepal Singh v. State of U.P. (1980] 3 SCC 288 = (1980) 2 LLJ 161 = (1980) LIC 747. The latter was a case of termination simpliciter on "t--.. account of the drive launched by the Inspector General of Police for weeding B out Police Officers who were unsuitable or unfit to be continued in service. r On the facts and circumstances of that case, it was held that the question ~ whether the appellant, who was a temporary servant, should be retained in -,.._ service, directly arose during the drive launched to weed out unsuitable i:-- officers and it was for this reason that the te1mination order was upheld, ' c particularly as there was nothing to show that the termination order was made by way of punishment. In another decision which, incidentally, again is Nepal tr"" Singh v. State of U.P., [1985) 1 SCC 56 =AIR (1985) SC 84 = (1985) 2 SCR .. 1, the Court held that where the services of a temporary Govt. servant are ~ ':>---- terminated on the ground that his reputation for corruption makes him ' D unsuitable for retention in the service, the State, or for that matter, any statutory employer, must take great care when proceeding to terminate a career t-- r- on the ground of unsuitability, to ensure that its order is founded on defmable ,.__ ... material, objectively assessed and relevant to the ground on which the /1 ~ termination is effected. It was observed that the Court will view with great ' '"---disfavour any attempt to circumvent the requirement of Article 311(2). In ~ E Anoop Jaiswal v. Govt. of India, (1984] 2 SCC 369 = [1984] 2 SCR 453 = AIR (1984) SC 636, it was found on a consideration of the entire record that l . the real foundation for the order of discharge of the appellant-probationer was the alleged act of misconduct. This, it was observed, made the impugned order .. I punitive in nature and was, therefore, held to be bad. t Shesh Narain Awasthy v. State of U.P. & Ors., (1988) 2 LLJ 99 was a ~ case of a temporary Constable in the U.P. Police whose services were terminated by an apparently innocuous order. On scrutiny it was found that the , services were terminated on account of his alleged participation in activities .. I G of unrecognised Police Karamchari Parishad. The termination order, therefore, was held to be bad as having been passed without following the procedure prescribed under Article 311(2) of the Constitution. .t ,,(/ In Ravindra Kumar Misra v. U.P. State Handloom Corporation Ltd, r [1987] Supp. SCC 739 = AIR (1987) SC 2408 = [1988) 1 SCR 501, it was ; H held that for finding out the effect of the order of termination, the concept of )ti