Civil Appeal No 621 of 1973
From the Judgment and Order dated 13 3 1973 of the Allahabad High Court in Spl
Appeal No 973
V J Francis for the Appellant
O P Rana for the Respondent
The Judgment of the Court was delivered by PATHAK J
This appeal by special leave arises out of a writ petition filed by a police officer aggrieved by the termination of his services
The appellant was a temporary Sub Inspector of Police
He was posted at Shahajahanpur in 1969
The Superintendent of Police 615 Shahjanpur commenced disciplinary proceedings against the appellant on the charge that he had violated Rule 29 of the UP Government Servants Conduct Rules 1956 inasmuch as without prior permission of the Government he had contracted a second marriage in November 1964 while his first wife was alive
The charge was denied by the appellant
The Superintendent of Police recorded evidence
But at this stage the Deputy Inspector General of Police Bareilly made an order on March 12 1970 quashing the disciplinary proceedings on the ground that the offence had been committed at Pithoragarh situated in a different police range and therefore the proceedings taken against the appellant were incompetent
Meanwhile on March 8 1970 the Inspector General of Police Uttar Pradesh had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub Inspectors whose reputation and integrity were very low or who were generally involved in scandalous conduct drinking immorality or other acts injurious to the reputation of the Police service or who were involved in encouraging crime
The Superintendent of Police Shahjahanpur included the name of the appellant in the list submitted by him
On April 27 1970 the Deputy Inspector General of Police made an order terminating the services of the appellant
The order recites that the services of the appellant are no more required and that he will be considered to have ceased to be in service   The appellant filed a writ petition against the order terminating his services and claimed that the order contravened Article 3112 of the Constitution inasmuch as it was an order imposing the punishment of dismissal or removal from service without satisfying the conditions prescribed in that provision
It was also alleged that the order was passed mala fide
The writ petition was dismissed by a learned Single Judge of the Allahabad High Court
An appeal was dismissed by a Division Bench of the High Court on March 13 1973
In the appeal before us it is urged for the appellant that the High Court was wrong in holding that the order terminating the appellant s services was not an order imposing a punishment
We are referred to the disciplinary proceedings instituted against the appellant in 1969 and it is submitted that although the order of termination does not refer to those proceedings and the charge on which they were commenced the appellant s services were terminated with a view to punish him for contracting a second marriage without prior permission of the Government
We are satisfied that the contention is without substance
It is now settled law that an order terminating the 616 services of a temporary Government servant and ex facie innocuous in that it does not cast my stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter but if it is discovered on the basis of material adduced that although innocent in its terms the order was passed in fact with a view to punishing the Government servant it is a punitive order which can be passed only after complying with Article 3112 of the Constitution
The scope of the enquiry called for in such a case has been outlined by one of us in State of Maharashtra vs Veerappa R Saboji and another
But the question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment and is merely an order of termination simpliciter if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order
The application of the test is not always easy
In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or having regard to his character conduct and suitability in relation to the post held by him it was intended simply to terminate his services
The function of the court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order
In the present appeal the appellant was a temporary Government servant
The question whether he should be retained in service was a matter which arose directly during the drive instituted by the Inspector General of Police in March 1970 for weeding out police officers who were unsuitable or unfit to be continued in service
The Superintendent of Police prepared a list of Sub Inspectors functioning within his jurisdiction and included the name of the appellant in that list
The material which he considered was sufficient to lead to the conclusion that the appellant who was a temporary Government servant was not suitable for being retained in service
His general character and conduct led to that impression
There is nothing to show that the impugned order was made by way of punishment
The circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment
As we have observed that is a conclusion which must follow from the nature of the intent behind the order
That intention can be discovered and proved like any other 617 fact from the evidence on the record
In this case it is not proved that the impugned order was intended by way of punishment
Learned counsel for the appellant relies on State of Bihar  Ors
vs Shiva Bhikshuk Mishra and State of Uttar Pradesh  Ors
vs Sugher Singh
Both were cases of permanent Government servants
And as regards Regional Manager  Anr
vs Pawan Kumar Dubey to which also reference has been made that was a case where on the facts the Court found that there were no administrative reasons for the impugned reversion
The appeal fails and is dismissed but in the circumstances there is no order as to costs
section R Appeal dismissed


Summary:
The appellant was a temporary sub inspector of Police
While he was posted at Shahjahanpur the Superintendent of Police Shahjahanpur commenced disciplinary proceedings against him on the charge that he had violated Rule 29 of the UP Government Servants Conduct Rules 1956 in as much as without prior permission of the Government he had contracted a second marriage in November 1964 while his first wife was alive
At the stage of evidence the Deputy Inspector General of Police Bareilly made an order on March 12 1970 quashing the disciplinary proceedings on the ground that the offence has been committed at Pithoragarh situated in a different police range and therefore the proceedings taken against the appellant were incompetent
Meanwhile on March 8 1970 the Inspector General of Police Uttar Pradesh had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub inspectors whose reputation and integrity were very low or who were generally involved in scandalous conduct drinking immorality or other acts injurious to the reputation of the Police Service or who were involved encouraging crime
The Superintendent of Police Shahjahanpur included the name of the appellant in the list submitted by him
On April 27 1970 the Dy
Inspector General of Police made an order terminating the services of the appellant reciting that the services of the appellant are no more required and that he will be considered to have ceased to be in service  The appellant filed a Writ Petition against the order terminating his services and claimed that the order contravened Article 3112 of the Constitution inasmuch as it was an order imposing the punishment of dismissal or removal from service without satisfying the conditions prescribed therein
Allegations of malafide were also made
The Writ Petition was dismissed
An appeal to the Division Bench was also dismissed
Hence the appeal by special leave
Dismissing the appeal the Court
 HELD 1
It is now settled law that an order terminating the services of a temporary Government servant and ex facie innocuous in that it does not cast any stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter but if it is discovered on the basis of material adduced that although innocent in its 614 terms the order was passed in fact with a view to punishing the Government servant it is a punitive order which can be passed only after complying with article 3112 of the Constitution
615H 616A B 2
The question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment and is merely an order of termination simpliciter if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order
The application of the test is not always easy
In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or having regard to his character conduct and suitability in relation to the post held by him it was intended simply to terminate his services
The function of the Court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order
616B E In the instant case a the appellant was a temporary Government servant and the question whether he should be retained in service was a matter which arose directly during the drive instituted by the Inspector General of Police in March 1970 for weeding out Police Officers who were unsuitable or unfit to be continued in service b the material which the Superintendent of Police considered was sufficient to lead to the conclusion that the appellant who was a temporary Government servant was not suitable for being retained in service his general character and conduct led to that impression and there was nothing to show that the impugned order was made by way of punishment c the circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment and d the impugned order was not intended by way of punishment
616E G State of Maharashtra vs Veerappa R Saboji and Anr   applied
State of Bihar and Ors
vs Shiva Bhikshuk Mishra  State of UP  Ors
vs Sughar Singh  and Regional Manager  Anr
vs Pawan Kumar Dubey   distinguished