N Criminal Appeal No 646 of 1992
From the Judgment and Order dated 3492 of the Gujarat High Court in Crl
A No 161 of 1992
TUMehta NN Keshwani Ashok D Shah RN Keshwani and SK Gupta for the Appellant
Anip Sachthey and Badri Nath for the Respondent
The Judgment of the Court was delivered by YOGESHWAR DAYAL J
On 4th September 1992 this Court had directed issue of notice on the Special Leave Petition as well as on application for bail returnable in four weeks and it was indicated that the matter will be heard and finally decided on that date
However there is no appearance on behalf of the State today
Leave granted
The matter is being disposed of
This is an appeal by Special Leave against the judgment of the Division Bench of the Gujarat High Court dated 3rd April 1992
Four accused persons were tried by Special Judge Ahmedabad
Out of the said four accused only one of the accused person namely accused No 2 a Food Inspector has been convicted of offences punishable under Section 161 of the Indian Penal Code and Sections 51 d and 52 of the Prevention of Corruption Act 1947
The three other accused were acquitted by the learned Special Judge
The State tiled the appeal against the acquittal of the three acquitted accused whereas accused No 2 filed an appeal against his conviction and sentence
The High Court dismissed the appeal of the State against the acquittal of accused No1 3 and 4 and at the same time dismissed the appeal of accused No 2
Accused No 2 has come up to this Court by way of a Special Leave Petition against the aforesaid decision of the Division Bench
The prosecution case is that the complainant Mohanlal Chhatramal Samnani is running a shop and inter alia dealing in Kimam opposite Maninagar Railway Station Ahmedabad
On 7th January 1984 the Chief Inspector in the Health Department accused No1 and accused No 2 appellant herein and accused No 4 who were working under him as Food Inspectors had approached the complainant at his shop and stated that they had been inspecting the food articles for adulteration and took a bottle of Kimam and opened it for sample and the complainant told them that it may be taken in sealed condition but they refused to do so and stated that the sample would not be passed and the complainant would be put to difficulties
This was stated by accused No 1 who further stated that the complainant should be practical
The complainant enquired as to what was meant by being practical and the accused No 2 appellant replied that being practical means money
The complainant then enquired as to the amount and he was told Rs 500000
The complainant was not willing to make such payment
However he was pressurised
The complainant stated that he did not have that much money and therefore he was asked to pay whatever the amount he could pay immediately and the complainant opened his galla  and gave Rs 60000 to accused No 1
The next day on 8th January 1984 accused No 4 had come to his shop and enquired whether the money had been arranged but the complainant replied that it could not be done
However under pressure he gave Rs 50000 to accused No 4 and asked for more time for making arrangement for more amount
Thereafter after about 15 days accused Nos 2  4 had come to his shop demanding illegal gratification and the complainant requested for four days time
After four days again the accused Nos 2  4 came to his shop and the complainant again stated that the money could not be arranged and he may be given two days time
After great difficulties on complainant making a promise that he would pay the amount with 100 certainty and on this final promise accused Nos 2  4 asked the complainant to keep the money ready on 30th January 1984 at 300 pm
On 30th January 1984 the complainant approached the office of the Anti Corruption Bureau and gave his complainant
Two Panchas were called by the ACB
In the presence of those two Panchas the numbers of 40 currency notes of Rs 10000 each were noted done in two batchs of 20 each
Each of these currency notes was treated with anthracene powder and a demonstration was made and shown to thc complainant and the Panchas
One bundle of Rs 200000 was to be given to accused No I and another bundle was to be given to accused Nos 2  4
Panch No 1 was to remain with the complainant and Panch No 2 was to remain with the raiding party
After making this preliminary panchnama raided party went to Maninagar and the complainant and Panch No 1 went to the shop at about 630 pm and the others waited outside a little away
After about an hour accused No 2 came to the shop and the complainant asked accused No 2 to come and sit but the accused No 2 replied that he was in a hurry and asked the complainant to come with him where another Inspector was waiting near the Post Office
Therefore the complainant went with accused No 2 and Panch No 1 followed them
Accused No 3 and Jinto absconding accused were waiting and accused No 2 introduced them to the complainant and asked the complainant as to what he had done about the money which was earlier talked about
The complainant replied that he had brought the money
The accused No 2 demanded the same and the complainant took out the bundle of currency notes from one of his pockets and gave it to accused No 2 who accepted it by his right hand and asked the complainant as to how much it was and the complainant replied that it was Rs 200000 and accused No 2 asked as to for how many persons it was and the complainant replied that it was for three persons
The accused No 2 asked accused No 3 to count the same and while Modi accused No3 was counting the same the complainant gave the signal and the raiding party which had followed them immediately came there alongwith Panch No 2
All of them wont to the shop of the complainant where Modi was asked to give currency notes to the Panchas and exercise of ultra violet Iamp was undertaken and in the ordinary light hands of each of the three Food Inspectors did not indicate any light change
Thereafter under ultra violet light hands of all were seen and the hands of Panch No 2 and the members of the raiding party did not show any change on their hands
The hands of accused No2 appellant were seen in the ultra violet light and the four fingers and thumb of the right hand showed the light blue colour and white sparkle
So also was the position with regard to the right hand fingers and thumb of Jinto and his clothes namely the right hand pocket of the pant so also the fingers and thumb of both the hands of accused No3 Modi and the left hand pocket and the woollen cap of Modi showed white sparkle and the light blue colour
The numbers of currency notes were compared with the numbers which were recorded in the preliminary panchnama and they were found to tally
The currency notes also showed the anthracene powder in the ultra violet light
The complainant s hands were also seen and they also showed the anthracene powder in ultra violet light so also both his inside pockets of the coat
Thereafter the complainant and the Panchas went to the residence of accused No1
The complainant alongwith Panch No1 went to the first floor of the flat of accused No1
Accused No1 opened the door and asked these people to come inside and made them sit
The complainant offered money to accused No1
He however refused to accept the same and therefore they came Out and no raid was made
As stated earlier all the accused were tried by the learned Special Judge and accused Nos 1 3  4 were acquitted and ultimately the appeal of the State against their acquittal was dismissed by the High Court
The High Court dismissed the appeal of accused No2 also after noticing i that the Panchas did not recognize any of the accused persons ii that there is no corroboration to what had happened in the meetings preceding the raid on 30th January 1984 iii that the evidence of the complainant was disinterested and did not require any corroboration and iv that the hands of accused No2 were seen in ultra violet light and four fingers and thumb of the right hand showed the light blue colour and white sparkle
The High Court had acquitted accused Nos 3  4 in spite of the fact that their fingers have also showed light blue colour and white sparkle in ultra violet light but the High Court was not prepared to rely on that circumstance alone with the uncorroborated testimony of the complainant
Since according to the High Court no demand had been made by accused Nos 3 and 4 from the complainant for any bribe
It will be noticed that not only the two Panchas could not recognize any of the accused persons but there is no corroboration to the various statements of the complainant vis a vis accused Nos 1 to 4 by the police officials who constituted the raiding party either
The raiding party including the police officials reached the spot at a time when they could neither hear the talk if any between the accused No 2 and the complainant nor could see the alleged acceptance of money by accused No2 and passing it on to accused No3
We are thus left with the sole testimony of the complainant and the test of seeing anthracene powder on the hands and fingers of accused No2
The High Court had acquitted accused No3 and did not find it safe to convict him on the sole testimony of the complainant supported by the test of seeing anthracene powder on the hands and fingers of accused No3
in ultra violet light
But on the same evidence the High Court upheld the conviction of accused No2 relying on the same evidence which was rejected vis a vis accused No3
The High Court felt that the complainant was totally dis interested in the success of the raid and could not be called interested person and thus felt no need for corroboration of his statement
The fact remains that the High Court totally ignored the statement of the complainant made during cross examination on behalf of accused No2
In his cross examination the complainant stated It is true that accused No2 used to carry out raids on and often on Pan gallas
It is true that I had felt that he is harassing businessmen selling Pan and Masalas
It is true that is why we thought of teaching him a lesson
It is true that in my statement before police I have not stated that when accused No1 asked as to why have you come then I told that I am Kimamwala of Maninagar and according to talk with Shantilal I have come to give money
 It is clear that it is not a case merely of a complainant from whom bribe was demanded and he was forced to pay the same but the complainant had thought of teaching a lesson to accused No2 for harassing the businessmen selling Pan Masalas and therefore it could not be said that the complainant was not interested in success or otherwise of the raid
In fact the High Court acquitted accused No3 though the evidence against him was the same as it was against accused No2
When the High Court could not find it safe to rely on the uncorroborated statement of the complainant while upholding the acquittal of accused No3 we also find it unsafe to rely on the pise dixit of the complainant which is unsupported by both the Panch witnesses and the police officials who formed the raiding party for upholding the conviction of accused No2 appellant before us
The result is that the appeal succeeds the conviction and sentence of the appellant is set aside and the appellant is acquitted
NVK Appeal allowed


Summary:
The respondent was appointed as a Lecturer in the appellant Institute and was put on probation for one year
During the probation period his services were terminated
The respondent challenged the same before the High Court by way of a Writ Petition contending that actually order of dismissal has been passed in the garb of an order of termination and that the Director of the institute instead of initiating a departmental proceeding on the basis of some charges levelled against him placed the matter before the governing council of the Institute termination of his services
The High Court gave its finding that since the service of the petitioner had been terminated because of the complaints made against him it really amounted to his removal for alleged misconduct and so the institute should have initiated a departmental proceeding and only after due enquiry any action should have been taken
Being aggrieved by the High Courts order the appellant Institute has preferred the present appeal
Allowing the appeal this Court HELD 11
When an appointment is made on probation it pre supposes that the conduct performance ability and the capacity of the employee concerned have to be watched and examined during the period of probation
He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post against which he has been appointed
The principle of tearing of the veil for finding out the real nature of the order shall be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so levelled and the action taken
If the decision is taken to terminate the service of an employee during the period of probation after taking into consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment
The appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee
254 E H 255 A 12
Even if such employee while questioning the validity of an order of termination simpliciter brings on the record that some preliminary inquiry or examination of some allegations had been made that will not vitiate the order of termination
255 B Oil and Natural Gas Commission vs Dr Mohd section Iskender Ali   Ravindra Kumar Misra vs UP State Handloom Corpn
Ltd 1987 suppl
SCC 739 State of Uttar Pradesh vs Kaushal Kishore Shukla  and Triveni Shankar Saxena vs State of UP JT 1992 1 SC 37 relied on
Anoop Jaiswal vs Government of India  distinguished