Civil Appeal No 252 of 1969
Appeal by Special Leave from the Judgment and Order dated 19 8 68 of the Allahabad High Court in Civil Appeal No 25465
G N Dikshit and M V Goswami for the Appellant
section C Manchanda section C Patel and Trilok Singh Arora for the Respondent
The Judgment of the Court was delivered by PATHAK J
This appeal by special leave is directed against the judgment and order of the Allahabad High Court dated August 19 1968 dismissing a second appeal arising out of a suit for declaration
The respondent was appointed as a Sub Inspector of Police in a temporary post in 1955
He was discharged from service on July 13 1957
A writ petition filed by him in the Allahabad High Court was allowed on August 4 1959 and accordingly on December 15 1959 he was reinstated in service
Thereafter on January 21 1960 his services were terminated by the Deputy Inspector General of Police Agra Range Agra
On March 13 1963 the respondent instituted a suit for a declaration that the order dated January 21 1960 was illegal and void and that he continued as Sub Inspector of Police in the Uttar Pradesh Police Service
It was alleged that on a false complaint made against him in respect of the custody and detention of one Smt
Phoolmati an enquiry had been made in consequence of which the appellant had been arbitrarily and illegally discharged from service on July 13 1957
It was pleaded that although he was reinstated on the success of his writ petition in the High Court his services were terminated a mere five weeks later although no ground had arisen since for doing so
It was asserted that the order of January 21 1960 was passed as a simple order of termination in order to avoid a departmental enquiry under section 7 of the Police Act which enquiry if held would have enabled him to expose the falsity of the allegations levelled against him
The suit was contested by the appellant who maintained that the termination of the respondent s services was not by way of punishment hor motivated by malice and that it was a simple termination of the services of a temporary government servant on the ground that they were no longer required by the State
The suit was decreed by the learned Munsif Etah and the decree was affirmed in appeal and second appeal
The High Court in second appeal took the view that where an enquiry was instituted by a superior authority into a misconduct alleged against a government 1128 servant the resulting termination of service was by way of punishment because it attached a stigma or amounted to a reflection on the competence of the government servant and affected his future career
The High Court held that the findings recorded during the enquiry on the original complaint against the respondent were responsible for the order terminating the respondent s services and it affirmed that the order was vitiated by mala fides
Attacking the findings of the High Court learned counsel for the appellant contends that in the first place the order terminating the respondent s services had not been made by way of punishment but was an order of termination simpliciter passed in accordance with the rules applicable to temporary government servants
In the second place it is said if the order is attributed to the complaint against the respondent concerning his conduct relating to Smt
Phoolmati it was open to the Deputy Inspector General of Police to take the circumstances of the case into account for the purpose of considering the suitability of the respondent for continuing in service
Learned counsel for the respondent points out that an enquiry had been originally instituted against the respondent which had resulted in an order terminating his services and he urges after the order of the High Court quashing his discharge on the ground of violation of Article 3112 of the Constitution it was obligatory on the superior authority in case it proposed to terminate the respondent s services to institute a proper and complete departmental enquiry providing an opportunity to the respondent to lead evidence and be heard in his defence and only thereafter could it make an order against the respondent
We are of the opinion that the appellant is right on both counts
Considered as an order made without reference to the earlier proceeding against the respondent the impugned order cannot be regarded as one of punishment
After the original order of discharge was quashed by the High Court the respondent was reinstated in service
He was even allowed an increment to his salary
The Deputy Inspector General of Police made the impugned order subsequently terminating his services on the ground that they were no longer required
The services were terminated on payment of one month s salary in lieu of notice under the general rules for termination of service of temporary government servants
The Deputy Inspector General of Police was examined as a witness in the suit and throughout he maintained that he terminated the respondent s services because they were not required any more and that in making the order he did not intend to punish the respondent
The evidence also discloses that no personal motive had influenced the order
It was open to the superior authority to terminate the respondent s services on the ground on which it did so
1129 Assuming however that the impugned order was made in the background of the allegations against the respondent concerning his behaviour with Smt
Phoolmati we see no reason in law why a departmental enquiry should be necessary before the respondent s services could be terminated
It appears from the material before us that it was merely a preliminary enquiry which was made by the Superintendent of Police into the allegations made against the respondent s conduct concerning the woman
No departmental enquiry by way of disciplinary proceedings was instituted no charge was framed and the formal procedure characterising a disciplinary proceeding was never adopted
The Deputy Inspector General of Police passed the original order dated July 13 1957 discharging the respondent from the police force on the ground that he had behaved in a reprehensible manner was not likely to make a useful police officer and was unfit for further retention in a disciplined force
The original order plainly attached a stigma to the respondent s record of service and it is because of the specific grounds set forth in the termination order that the High Court considered the respondent entitled to the benefit of Article 311 2 of the Constitution and quashed the order
Now the order having been quashed the position reverts to what it was when the Deputy Inspector General of Police received the report of the Superintendent of Police on the Preliminary enquiry made by him
There was nothing to prevent the Deputy Inspector General from deciding that instead of instituting disciplinary proceedings against the government servant he should consider whether the government servant was suitable for retention in service
The case law on the point has been considered elaborately by one of us Jaswant Singh J in State of UP vs Ram Chandra Trivedi1 and reference has been made in this behalf to Champaklal Chimanlal Shah vs The Union of India2 Jagdish Mitter vs Union of India3 and State of Punjab  Anr
vs Shri Sukh Raj Bahadur4
It is apparent from the facts of this case that if the impugned order be considered as made in the light of the allegations against the respondent concerning the woman the conduct of the respondent constituted a motive merely for making the order and was not the foundation of that order
In this connection what has been stated by this Court in Union of India  Ors
vs R section Dhaba5 State of Bihar  Ors
vs Shive Bhikshuk Mishra6 and R section Sial vs The State of UP  Ors7 appers relevant
That it was not intended 1130 to take punitive action against the respondent for his misbehaviour with Smt
Phoolmati is evident from the circumstance that thereafter the respondent was allowed an increment to his salary and was regarded as in service for all purposes
The High Court it seems to us did not have regard to all the facts and circumstances of the case and appears to have assumed that the respondent s services were terminated as a measure of punishment
The High Court relied on The State of Bihar vs Gopi Kishore Prasad1 and Madan Gopal vs The State of Punjab2
Both cases are distinguishable
In the former the government servant was discharged from service because he was found to be corrupt and the order terminating his services branded him a dishonest and incompetent officer
In the latter the government servant had been served with a charge sheet that he had demanded and received illegal gratification and the Court found that the proceeding consequent to which the termination order was made was intended for the purpose of taking punitive action
We are satisfied that the considerations which prevailed with the High Court in reaching its findings on the application of Article 311 2 of the Constitution and the bona fides of the superior authority in making the impugned order are not warranted in law and on the material before us
Accordingly the appeal is allowed the judgment and decree of the High Court dated August 19 1968 are set aside and the respondent s suit is dismissed but in the circumstances without any order as to costs
SR Appeal allowed


Summary:
The respondent was appointed as a Sub Inspector of police in a temporary post in 1955
He was discharged from service on July 13 1957
A Writ Petition filed by him in the Allahabad High Court was allowed on August 4 1959 and consequently he was re instated in service on December 15 1959
Thereafter on January 21 1960 his services were terminated on the ground that they were no longer required by the State
A suit for declaration that the said order of termination was null and void was decreed in his favour by the trial court which was affirmed in appeal and also by the High Court in second appeal
Allowing the State appeal by special leave the Court  HELD 1
The considerations which prevailed with the High Court in reaching its findings on the application of Article 3112 of the Constitution and the bona fides of the superior authority in making the impugned order of termination simpliciter are not warranted in law
1130D 2
The order terminating the services was order of termination simpliciter passed in accordance with the rules applicable to temporary Government servants
After the original order of discharge was quashed by the High Court the respondent was reinstated allowed increment in pay and one month s salary in lieu of notice under the general rules for termination of services of temporary government servants was also given
1128F G 3
It was open to the superior authority to terminate the respondent s services on the ground on which it did so
And the evidence disclosed no personal motive had influenced the order or that it was passed by way of punishment
A departmental enquiry is not required under the law
Instead of instituting disciplinary proceedings against the government servant the suitability for retention in service could be decided
1128H 1129A E State of UPv
Ram Chandra Trivedi   Champaklal Chimanlal Shah vs The Union of India  Jagdish Mitter vs Union of India AIR 1964 SC 449 and State of Punjab  Anr
vs Shri Sukh Raj Bahadur   referred to
Union of India  Ors
vs R section Dhaba  State of Bihar  Ors
vs Shiva Bhikshuk Mishra and R section Sial vs The State of UP and Ors  applied
The State of Bihar vs Gopi Kishore Prasad AIR 1960 SC 689 and Madan Gopal vs The State of Punjab 1963 3 SCR 716 distinguished 1127