Special Leave Petition No 13560 of 1983
From the Judgment and Order dated 2761983 of the Himachal Pradesh High Court in C W P No 86 of 1983
PP Rao and H J Zaviri for the Petitioner
VK Kanth and CP Pandey for the Respondents
The following Order of the Court was delivered by K JAYACHANDRA REDDY J
The petitioner was directly appointed as an Accountant in the Himachal Pradesh Tourism Development Corporation Ltd  Corporation  for short on 28878 He was on probation in the Transport Wing of the Corporation
After 704 training he was transferred to the Office of the Area Manager Simla and was posted as an Accountant
His conditions of service were governed by the Regulations made by the Board of Directors of the Corporation
The petitioner detected certain irregularities in the Transport Wing and wrote a letter dated 1961980 to the Transport Officer pointing out the financial irregularities and embezzlements committed by the then Cashier
The employees  Union took up the matter and demanded the Management to take necessary action and also made some demands on behalf of the Union
The petitioner was the General Secretary of the Union
In April 1980 the respondent No 2 was posted as the new Managing Director
According to the petitioner he was annoyed with the petitioner because of his union activities
It is stated that the petitioner actively participated in highlighting the demands
On 1351981 an order transferring the petitioner to Dalhousie was passed even though the petitioner had been earlier granted permission on 23779 to do his 3 years Law course as an evening student
the petitioner made a representation for cancellation of the transfer on the ground that he was already half way through his legal study and that the transfer was mala fide
Respondent No 2 got more annoyed
The petitioner submitted a study leave application for one year
But he was granted only 90 days leave in the first instance with full pay and allowances and later on half pay and subsequently without pay he was granted extra ordinary leave
Meanwhile a chargesheet was issued on 21st August 1981 framing certain charges
The gravamen of the charges is that while working in the Transport Wing of the Corporation the petitioner facilitated and abetted the embezziment of Rs 100 by notensuring that the amount found was in excess and that he failed to serve the Corporation honestly and faithfully
The other charge is that he made some fictitious entries in the Cash Book and the fourth charge is that he made certain information public without the permission of the Managing Director
To this the petitioner submitted a reply stating that all the charges are fake and false
It is stated that the petitioner s leave was cancelled and the petitioner challenged the same in the High Court of Himachal Pradesh but the case was adjourned
Meanwhile the petitioner s services were terminated with effect from 8th January 1982 stating that they are no longer required and one month s pay in lieu of notice would be paid in terms and conditions of his appointment letter and provisions of Staff Regulations of the Corporation
The petitioner challenged the same before the High Court but the Writ Petition was dismissed in limine
In this Court it is urged that the termination is only a camouflage and that though the petitioner was still a temporary servant yet the termination amounted to punishment because of the manner in which it was 705 passed and the background behind it
It is not in dispute that the Corporation has power to terminate the services by giving one month s notice or pay in lieu thereof in the case of a temporary employee who have completed one month s service
Regulation 193 reads thus Termination of service by notice 193 The Corporation may terminate the services of any employee by giving him a xx xx xx b one month s notice or pay in lieu thereof in the case of temporary employees who have completed one months service and one day s notice or pay in lieu thereof in the case of temporary employees in the first month of their service
 Regulation 39 prescribes various penalties that can be awarded and termination of service is one of them
Now the only question that arises for consideration in this case is whether the termination of the petitioner s services is simply one as per the Regulation 193 or in the nature of a camouflage and therefore amounts to punishment as contended by the petitioner
In Anoop Jaiswal vs Government of India  Anr p1984 2 SCR 453 it is held as under Where the form of the order is merely a camouflage for an order of dismissal 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 clock 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
 In Nepal Singh vs State of UP  Ors 1985 2 SCR it is held as under 706 Where allegations of misconduct are levelled against a Government Servant and it is a case where the provisions of Article 312 of the Constitution should be applied it is not open to the competent authority to take the view that holding the enquiry contemplated by the clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order
The Court will view with great disfavour any attempt to circumvent the constitutional provision of article 3112 in a case where that provision comes into play In Jarnail Singh  Ors etc
vs State of Punjab  Ors
  it is held thus When an allegation is made by the employee assailing the order of termination as one based on misconduct though conched 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 From the above decisions it can be seen that it is well settled that in a case of an order of termination even that of a temporary employee the Court has to see whether the order was made on the ground of misconduct if such a complaint was made and in that process the Court would examine the real circumstances as well as the basis and foundation of the order complained of and if the Court is satisfied that the termination of services is not so innocuous as claimed to be and if the circumstances further disclose that it is only a camouflage with a view to avoided an enquiry as warranted by Article 3112 of the Constitution then such a termination is liable to be quashed
In the above mentioned decisions the impugned termination order was accordingly quashed
It is not in dispute that a regular chargesheet was served on the petitioner as mentioned above on 21st August 1981 and to the said chargesheet a list of documents also was appended on the basis of which the articles of charge were framed
The petitioner replied to these charges on 7th September 1981
Without reference to any of the charges or the reply the order of termination was passed on 8th 707 January 1982 as already mentioned
In the counter affidavit at more than one place it is admitted about the framing of the charges etc
regarding the news item which refers to the information given out by the petitioner
It is stated in the counter affidavit that services of the petitioner were terminated as a probationer and not on the basis of the enquiry report which came after the services of the petitioner had been terminated
It can therefore be seen that an enquiry in fact was contemplated and was held but the report came into light after termination of the services of the petitioner
It is also submitted on behalf of the petitioner that the audit report would show many irregularities as pointed out by the petitioner and that the petitioner acted honestly in pointing out the irregularities
It is not necessary for us to go into this question
Having gone through the various records and also the admissions made in he counter affidavit we are satisfied that the termination order though appears to be innocuous was only intended to punish the petitioner for the misconduct in respect of the allegations which are mentioned in the charges that were served on him
After serving the chargesheet as a matter of fact the enquiry was conducted
But before the conclusion of the enquiry the termination order was passed
Therefore it is not difficult to see that the form of the termination order is only a cloak for an order of punishment
In this context the learned counsel also questioned the termination order from another angle
In that order it is mentioned that the services of the petitioner are no longer required therefore they are terminated
But from the record it is clear that juniors to the petitioner are retained and they are continuing in service
In the affidavit it is clearly mentioned that juniors whose names are given there are retained in service in violation of Article 14 and 16 of the Constitution
In the counter affidavit only a vague reply is given simply stating that the averments made by the petitioner are not correct
In KC Joshi vs Union of India and Ors It is observed that If it is discharge simpliciter it would be violative of Article 16 because a number of store keepers junior to the appellant are shown to have been retained in the service 
Likewise in Jarnail Singh s case it was observed as under 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 708 fundamental rights guarantee under Article 14 and 16 of the Constitution of India After a careful perusal of the record we are satisfied that the juniors to the petitioners are retained
Therefore on this ground also the termination order is liable to be quashed
Admittedly the petitioner has been practising as a lawyer ever since his services were terminated
In the rejoinder filed by him he merely stated that he was not earning much in that profession and that he has incurred debts
The learned counsel for the Corporation however submitted that since the petitioner was admittedly practising as a lawyer the question of granting him back wages is any event does not arise and that even otherwise there cannot be a roving enquiry to the earning he has made as a lawyer at this distance of time
The petitioner however at this juncture filed a further affidavit that his total income from 1985 onwards uptilnow was only Rs15550 and that he has not received any other income during all these years
It is also submitted on his behalf that in similar circumstances this Court awarded back wages even in a case of an employee who practised as a lawyer from the date of dismissal till his reinstatement
In section M Saiyad vs Baroda Municipal Corporation the employee was directed to be reinstated in service by the labour court
Then ultimately on the question of back wages it was urged before this Court that though the appellant was practising as a lawyer after enrolment during that period still he was entitled for back wages
This Court accepted this plea and observed as under The appellant seeks back wages for the period December 12 1969 to October 26 1976
This period according to the respondent has to be divided in two parts 1 from December 12 1969 to Jan 20 1972 when the appellant was enrolled as an advocate and 2 for the period Jan 21 1976 to October 26 1976 from which date he has already been awarded back wages it was submitted on behalf of the respondent that the appellant himself has admitted that since his being enrolled as an advocate he was earning Rs 150 per month which aspect must be borne in mind while considering the submission of the appellant for the award of back wages
 Partly accepting this plea this Court ultimately observed that the appellant therein must have atleast stated earning after a lapse of one 709 year from the date on which he was enrolled as an advocate
Ultimately this court directed that We accordingly allow this appeal and set aside the decision of the High Court refusing the back wages for the period December 12 1969 to October 26 1976 and directed that the appellant shall be entitled to back wages including salary and allowances and other benefits to which he would be entitled as if the has continued the service
While making the payment of back wages as per this order the respondent is entitled to deduct the amount of Rs 150 pm from January 20 1973 to October 26 1976 from the amount which becomes payable to the appellant
The respondent must compute the amount payable as herein directed and pay what becomes payable to the appellant within a period of two months from today
 It can therefore be seen that this Court did not refuse to grant back wages on the simple ground that the employee was a practicing lawyer during the relevant period
But on the other hand it took into account the probable income and after deducting the same the balance of back wages was directed to be computed
In the instant case in the affidavit filed by the petitioner it is stated that he was practising as an income tax advocate ever since his enrolment in October 1982
But however he asserted that he got his first brief in the year 1985
These averments are contradicted by the other side
Under these circumstance we cannot make a roving enquiry nor would it be possible for the corporation to unearth the income which the petitioner would have derived as a practising advocate
There are many imponderables and conjectures too
Under these circumstances we asked both the counsels to suggest a solution
We have heard both the sides on this aspect elaborately
Shri P P Rao learned counsel for the petitioner submitted that if the relevant period is to be treated as one of suspension pending enquiry the petitioner would have been entitled to the subsistence allowance till his reinstatement
That atleast should be the criteria in granting the back wages in a situation like this
We think this is a reasonable and fair suggestion
In the result the termination order is quashed and consequently the petitioner shall be reinstated in service
However he shall be entitled to the full back wages upto the date of his enrolment as a 710 lawyer which was in the month of October 1982
From the date of his enrolment upto the date of reinstatement he shall be entitled to the back wages at the rate of half of the subsistence allowance per month and the total amount shall be computed on that basis
Out of that the income of Rs15550 admittedly earned by him as a practising lawyer shall be deducted and the balance amount shall be paid to the petitioner
The amount so paid to him shall for the purpose of income tax be spread over as if derived during those financial years from the date of his dismissal till the date of reinstatement
However we would like to make it clear that it is open to the Corporation to proceed with the disciplinary enquiry if it so chooses
The special leave petition is accordingly disposed of
In the circumstances of the case there will be no order as to costs
NPV SLP disposed of


Summary:
The appellant who had put in 10 years of service as Jawan in the Army was sentenced to 3 months  RI and dismissed from service by the Summary Court Martial on the charge that his action in carrying 12 bottles of liquor while proceeding on leave to his home town was contrary to the orders on the subject
The appeal preferred by the appellant pointing out the irregularities committed in the summary trial and pleading that he had unblemished record of service was also rejected by the higher authority
The writ Petition filed by the appellant was also summarily rejected by the High Court
In the appeal before this Court on behalf of the appellant it was contended that the summary trial was vitiated on account of several irregularities committed in conducting the trial and the sentence awarded to him was wholly disproportionate to the offence committed by him
Disposing of the appeal and remanding the case to the Summary Court Martial on the question of sentence this Court HELD 1
The trial is not vitiated and no prejudice has been caused to the appellant inasmuch as from the records it is found that the evidence has been duly recorded and admittedly the appellant was carrying extra seven bottles of liquor without the necessary permit
However there is an element of arbitrariness in awarding severe punishments and therefore an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishments provided in the 
679E 683G H 677 21 Section 72 of the provides that the court martial may on convicting a person subject to the Act of any offences specified in Sections 34 to 68 inclusive award either the particular punishment with which the offence is stated in the said sections to be punishable or in lieu thereof any one of the punishments lower in the scale set out in Section 71 regard being had to the nature and degree of offence
680C D 22 In the instant case in the charge sheet it is merely stated that the action of the appellant in carrying 12 bottles of liquor when he was proceeding to home town was against the orders on the subject
But in the counter affidavit it is stated that such an act of the appellant came within the meaning of Section 63 of the Act
This Section may cover various types of misconducts committed by way of an act or omission
It also provides for awarding any other lesser punishment mentioned in the Act
Therefore much depends on the nature of the act or omission of which the person is found guilty
680BE 23 Admittedly the appellant was granted leave when he was proceeding to his home town
Enroute he had to pass through a place where prohibition was in force
He had a valid permit to carry 5 bottles of liquor and the extra 7 bottles were purchased from the Army Canteen itself
Unless he had some permits or chits given by some higher authorities he could not have purchased these extra bottles from the Canteen
He was taking this liquor to his home town to celebrate his brother in law s marriage but the local Civil Police checked his baggage and confiscated the bottles as he had no valid permit to carry the extra bottles
679G H 680A 24 Assuming that the offence committed by the appellant is covered by the residuary Section 63 but in awarding the punishment court martial has to keep in view the spirit behind Section 72 and it has to give due regard to the nature and degree of the offence
Section 63 provides for awarding of any of the lesser punishments enumerated in Section 71
In view of these provisions of law and having regard to the nature and degree of the offence the punishments awarded to the appellant namely three months  RI and dismissal from service are severe and are also violative of Section 72
Ends of justice will be sufficiently met if a lesser punishment as provided under Section 71f is awarded to the appellant
682E F 684F 25 Accordingly the punishments are set aside and the matter remanded to the court martial which shall award any of the lesser 678 punishments having due regard to the nature and circumstances of the case
Any detention suffered by the appellant after the orders of the court martial will not be treated as a disqualification for being rein stated into service
648B Ranjit Thakur vs Union of India and Others and Bhagat Ram vs State of Himachal Pradesh 1983 2 SCC 442 relied on
Council of Civil Service Unions vs Minister for the Civil Service 19843 AII ER 935 950 referred to