Case: Anoop Jaiswal Vs. Government of India and Another

The Director,      National Police Academy,      Hyderabad.      Dear Sir,      In reply to your memo dated 22nd June, 1981 I humbly submit that as for my being late in P.T. by 10. mts., I sincerely regret the lapse . But the second charge that I in stigated others, to do so is totally baseless and without a single iota of truth. I request you Sir to make a thorough enquiry into such an allegation. I never had nor have such plebian mentally.Thanking you,      Yours sincerely,      sd/-      Anoop Jaiswal"It would appear that the Director without holding an enquiry into the alleged misconduct recommended to the Government of India that the appellant should be discharged from the service. On the basis of the above report, the Government of India passed the order of discharge dated November 5, 1981 and communicated it to the appellant. The material part of the order reads thus"No. 1-22011/9/81 Pers. III      Government of India/Bharat Sarkar      Ministry of Home Affairs/Grih Mantralaya      New Delhi-110001, the 9 Nov. 1981      ORDER      Whereas the Central Government is satisfied that Shri Anoop Jaiswal, appointed to the Indian Police Service on probation on the result of the Civil Service Examination held in the year 1979, is unsuitable for being a member of the said service, he is hereby discharged under clause (b) of Rule 12 of the Indian Police Service (Probation) Rules, 1954.      The order of discharge will take effect from the date of which it is served on the said Shri Anoop Jaiswal.      In the name of and on behalf of the President of India.      sd/-      (NARENDRA PRASAD)      DIRECTOR"On receipt of the above order of discharge, the appellant made a representation on November 14, 1981 to the Government of India to reconsider the matter. It appears that the Director of the National Police Academy on this occasion recommended that the appellant may be reinstated. That representation was rejected by the Government of India on April 8, 1982. Thereafter, he filed a petition under Article 226 of the Constitution before the High Court of Delhi contending that the order of discharge was violative of Article 311(2) and Article 14 of the Constitution. That, petition was dismissed by the High Court at the stage of admission on August 30, 1982 after hearing the counsel for the Union of India. Against the judgment of the High Court, the appellant has filed this appeal with special leave under Article 136 of the Constitution.The main contention of the appellant before us is that the order discharging the petitioner though on the face of it appears to carry no stigma is in reality an order terminating his service on the ground of misconduct alleged to have been committed by him on June 22, 1981 in acting as one of the ring leaders who were responsible for the delay of about twenty-two minutes in the arrival of the probationers at the Gymnasium and that such an order could not have been passed without holding an enquiry as contemplated under Article 311(2) of the Constitution and the relevant rules governing such an enquiry. He has also contended that the order is based on conjunctures and surmises and by way of illustration he has referred us to paragraph 13 of the counter affidavit which reads thus:"Para 13:      The petitioner did not conduct himself fully in accordance with the prescribed rules and regulations during his training period. On one occasion when he was sanctioned leave for 16 days in the month of May, 1981, he did not report himself for duty in time. He absented himself willfully on 1.6.1981 without applying for leave for the day. For this action, he was warned by the Director against recurrence of such conduct. The period of his willful absence for one day was treated as leave without pay. On two earlier occasions, the petitioners conduct was found prejudicial to good order and discipline, on the first occasion he was verbally counselled by the Chief Drill Instructor and on the second occasion a Memo mas issued to him.      There was no gradation maintained in the Academy about the attendance, in terms of which the petitioner had the record of being second (or may be third) highest in the Academy. However, this record in this respect was otherwisee reply of the appellant to the above allegation is found in paragraph 6 of the rejoinder affidavit filed by the appellant which reads"Re: Para 13:The avermentsma de in para 13 of the petition are reiterated and the contentions of the respondent to the contrary are denied as incorrect. It is reiterated that the petitioner conducted himself fully in accordance with rules and regulations. The allegation made by the respondent that I absented myself willfully on 1, 6.1981 without applying for leave for the day is highly misleading. The correct fact is that I was sanctioned my Earned Leave on 15.5.81 for a period of 16 days, and I was to report back for duty on 1.6.81 before 12.00 noon. I made arrangement to reach Hyderabad before 8.00 a.m.. on 1.6.1981. However on account of late running of train in which I was travelling and consequently missing the connecting train, I could reach Hyderabad only if, around noon and I report at 1, 00 p.m. All these facts were duly explained to the Asstt. Director, outdoor Training, and e permitted to attend the afternoon classes on 1.6.81 which I did. (However, at this suggestion, I applied for leave for the day and the leave was sanctioned without pay), It is incorrect to say that I was warned for this. All that the Director said was that on such situations, the proper course was to apply for a days leave which I did as stated earlier. It is, therefore, very unreasonable to characterise the said incident as willful absence. The further allegation that on the earlier occasions, the petitioners conduct was found prejudicial to good order and discipline, is very vague and without any particulars. Counselling by the Instructors concerned is a routine affair and, in fact, the, Instructors are meant to counsel. Even regarding the second occasion, when a memo was said to have issued, it is not stated as to what the offence was. It is significant to note that the respondent has not denied the allegation made by me that I was not the only one who received such memos and that without exception all the probationary officers had at some time or the other received such memos. I deny the rest of the allegations and reiterate the averments made in para 13 of the petition,"Thelearned counsel for the parties have cited a number of decisions before us in support of their respective case s, on going through them we are of the view that there is not much divergence in them as to the true legal principles to be followed in matters of this nature but the real problem appears to be one of application of those principles in a given case in determining whether the particular action taken amounts to a punishment attracting Article 311(2) of the Constitution or a mere discharge simpliciter not requiring the holding of an enquiry as contemplated under Article 311(2). We s hall now deal with two leading cases having a bearing or the question before us. In Parshotam Lal Dingra. v. Union of India this Court after an elaborate consideration of the relevant provisions of the Constitution and judicial decisions cited before them observed:net result is that it is only in these cases there the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to he taken in regard to them. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment then the Government servant whose service is so terminate cannot claim the protection of Art. 311(2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided.      The foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not, ........      Where a person is appointed to a permanent post in a Government service on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment, for the Government servant, so appointed, has no right to continue to hold such a post any more than the servant employed on probation by a private employer is entitled to do. Such a termination does not operate as a forfeiture of any right of the servant to hold the post, for he has no such right and obviously cannot be a dismissal, removal or reduction in rank by way of punishment .................It does not, however, follow that, except in the three cases mentioned above, in all other cases, termination of service of a Government servant who has no right to his post, e.g, , where he was appointed to a post, temporary or permanent, either on probation or on an officiating basis and had not acquired a quasi- permanent status, the termination cannot in any circumstances, be a dismissal or removal from service by way of punishment, .............      In short, if the termination of service is founded on the right flowing from contract or the service rules then prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 311 is not attracted. But even if the Government has , by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of A rt. 311 must be complied with."

Reasoning: In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymansium acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries-were made behind the back of the appellant, only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If. On reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided ill Article 311(2) of the Constitution.The Union of India has placed before us all the relevant material including the recommendation of the Director of the National Police Academy that the appellant may be reinstated. In this case, as stated above, explanation was called for form the appellant and other probationers. Explanations were received and all the probationers including the appellant were individually interviewed in order to ascertain facts. Explanation submitted by him and the answers give by others had weighed with the Director before making the recommendation to the Government of India on the basis of which action was taken. The only ground which ultimately prevailed upon the Director was that the appellant had not shown any sign of repentance without informing him that h is case would be dealt with leniently if he showed an sign of repentance. In fact in the very first reply he gave to the Director on being asked about the incident which took place on June 22 1981, the appellant stated I sincerely regret the lapse,  Neither in the letter which the Director first wrote to the Central Government nor in the counter affidavit filed in this Court, due importance has been given to the said expression of regret and it is further seen that no additional la pse on the part of the appellant between June 22, 1981 and the date on which the Director wrote the letter to the Central Government, which would show that the appellant had not shown any sign of repentance is pointed out, although there is a reference to his reporting to duty late on an earlier date on June 1, 1981. On going through the above record before the Court and taking into account all the attendant circumstances we are satisfied that the Director wished to make the ca se of the appellant an example for others including those other probationers who were similarly situated so that they may learn a lesson therefrom.A narration of the facts of the case leaves no doubt that the alleged act of misconduct on Jun e 22, 1981 was the real foundation for the action taken against the appellant and that the other instances stated in the course of the counter affidavit are mere allegations which are put forward only for purposes of strengthening the defence which is otherwise very weak. The case is one which attracted Article 311(2) of the Constitution as the impugned order amounts to a termination of service by way of punishment and an enquiry should have been held in accordance with the said constitutional provision. hat admittedly having not been done, the impugned order is liable t be struck down. We accordingly set aside the judgment of the High Court and the impugned order dated November 5, 1981 discharging the appellant from service. The appellant should now be reinstated in service with the same rank and seniority he was entitled to before the impugned order was passed as if it had not been passed at all. He is also entitled to all consequential benefits including the appropriate year of allotment and the arrears of salary and allowances upto the date of his reinstatementIt is, therefore, now well settled that 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 t he form is merely a determination of employment is in reality a cloak 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.