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ANOOP JAISWAL

v. ...

GOVERNMENT OF INDIA & ANR .

Jani; pry 24, 1984 ·

{ E. S. VBNKATARAMIAR AND R .. B. MISRA, .JJ)

Constitution of India-Art. 311 (2)-.-Applicability of. Protectton . under Art. 311 (2) available if the order of dischcirge is JOund to be by way of .1untshment.

To. see whether an "order of discharge is, by way of pllnishment, form oftheorde; ti irot decisil'~. Court must g~ behilid the form and ascertain the tru~ character of

the order.

The appellant who had been selected for appOintment in the"' Indian Police Service was undergoing training'lfis probationer in the National __ Police Acdemy.

On June 22, 1981 due. to rain the appellant as well .other probationers reached late by a few minutes 3.t the _changed venue for conducting :P. T. For this delay explantion was cal.led from all the probationers. In his explanation the appellant sincerely regretted the lapse. The ap~lant was" considered to beone ofthe ring-leaders. who was resonsible for the delay. The Director of the Ac3.derny wiihout holding an enquiry into the alleged misconduct recommended to the Government that the appellant should be discharged from service. On the basis of that iecommendation the- Government by its order dated November Q, 1981 discharged the appellant from service. The Government rejeCted the appellant's

repiesenttion against the order discharging him. The appellant challenged the vaiidity of the order under Aft. 226 of the Constitution.

The High Court dismissed the petiti0n at theadmis.sion sta_gc. Hence this appeal. The appeUat contend.ed that the order discharging him wa~ in reality an' order terminating "his

services on the ground of rilisconduct and f'S415uch could not have been passed without Holding an enquiry as contemplated under Art 311 (2) of the Constitution and. the relevant rules governing such an enquiry. ' .

Allowing the appeal ..

HELD : The impllgned order of discharge is set aside .

Where uie form of the order i_s mere_Iy a cam<; iufiage for an order of dismissal for misco_nduct t is always _open to the Court before which the order js challenged to go behind the fo~ and_ascertain t_he true character of the order .. If the Court G . holds. tat the .order -though in_ the_ form is merely a determination of employ~

ment is in reality a cloak for an order of punishment, the Court would not be debarred, merely bause of the formof the order, in giving effect to the rights' <Wnferred by law upon the employee. [563 E-F]

Parshotam Lai Dhingra v. Union of India, [1958] S. C. R. 828; Shl/msher ff .Singh & Anr. v. State oj'Punjab, [1975] I S. C, R. 814; State of Punjab & Anr.

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. SUPREME COURT REPORTS f!984] 2 S.C.R .. . . .

v. Shri Silkh Raj Bahadur, (1969] 3 S.C.C:. 603;· Stale of Bihar & Ors. 'v. Shiva .· Bhikshuk Mishra, (1971] 2 S. C.R. 191; R.S. Sia/ v . .The.State of U. p, & Ors.,

. [197.4p S. C. R. 754; State .of U.P. v; Ram Chandra Trivedi, [1977] 1 s. C. R ..

462; and I. N. Sakseno v.

State of Madhya Pradesh; [1967] 2 S. C. R. 496;. referred to. , .

In the instarit case, on. gOing through the rccQrd and taking. intojaccount all the attendant 'circumstances the Court, "is_ satisfied that the __ alleged l'ct of mis-. condl.!:ct On JunC 22, 1981 Was t.he : real f0und-ation for the action taken. against the aPPellant.-:lnd _that the otheiiristances stated .in the course of the conter '' affl.9.avit re mere allegations which ar~ put forward orily for purposes of 1

strengttining the defcllce which is otheiwise ve'rY weak.· The case is one which attracted ArtiC1e311 (2) of the.Constitution as ·the. iffipugnCd order amounts tp a tefmination of se.rvice by. way Of punish1nent anctan eilquiry should have been -~\ held in accordariCe with-the -said Constitutional provision.

That admittt:dlY. havirtg hot ~n.d.one, tfie .impgned. o.rd_er is liable. to _be Struck dowq. ,[4~5 BC]

C1VIL APPELLATE Jrni.iS; ICTION : Civil Appeal No. 3040 of 1982 .

. . . ·. . .•.... Appoal by Spo.cia] leave from the Judgtnent and Order dated the 30th August, 1982 of the Delhi High Court in Writ Petition No. 1580 of l 982j. . ·

K.N. Bbatt for the Appellant. . .....

• M.S. Gujra/ and G.S. Narain for the Respondent .

.The Judgment of the Court was delivered by :

VENKATARAMIAH, J.

June 22, 1981 was really a bad day f°' the . appllant A1ioop JaiswaJ w))n having .. been selecied by the Union

Public Service Commission for appointment in the Indian Police Service was. undergoing training as a proba.tioner at the Sardar Vallabhbhai Patel National Police Academy, Hyderabad alongwitk ofoer probationers, On that day all the probatio.riers were expected to. be present at 5.50 A.M. at the field where the ceremonial ilrill practice was to be conducted.· Sinceit as raining at that time it appears thar the. venue was shifted to the Gymnasium .Hall wtete it was proposed. to cond.uct P.T./unartned combat practice. and intimation was sent ta the .trainees at the: Mess. When .the Assistant Director (Outdoor

Traiing) reached the Gymnasium at S.50 A.M. none of the prba: tion.ers had ·.reached there. They ali reached the place 22 minutes late i.e. by 6.15 A.M. when the rains had abated ad the parade cm~ menced at 6.15 A.M .. It appears that earlier when a.messenger sent . by the Assistant Director had gone to rnll the probationers tl1ey had

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ANOOP. JA!SWAL v. oovr: OF INDIA (Venkataramiah J.) . 455

asked for a vehicle to go to tile place as it was. rining. This , delay . was considered as an inddent which called for an enquiry. Explapa- .+ tion was called from all 'the probationers. The appellant was coy- sidered to be one of the ring leaders who:was responsible for the delay. • When t.he appellant was asked lfbout ihe incident, he gave his explana, t1on to the Director of the National Police Academy which read thus:

J, The .Director, National Police Academy, • Hyd.erabad.

Dear Sir, . fn reply to your Momo. dated 22nd June,.1981 I.humbly

sbmit that as for iny being late in P, T. by IO mts,, I sincerely regret the lapse: But the second charge that I instigated

oihes to do 'so is totally baseless and without a single iota of truth. . I request you .Sir to make a thorough enquiry foo.

such an allegation.

I never had nor have such plebian . mentallv. .

J ••

 Thanking you,

~ 'j)

Yours'sincerely,

sd/- Anoop Jaiswal'~

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It would appearthat .the Director without holding an enquiry \ into the alleged misconduct recommended to the. Qovernment of India that the appellant should be discharged from the service. On •ihe .basis of the above report, the G'overnment of India passed the order of discharge dated November 5, 19Sland 'communicated it .to

_.., the , appellant. The material part of the order.reads thus.:

''No. Ic220l 1/9/81 Pers. HI Government of India/Bharat. Sarkar

M nistry of Home Arfairs/Grih Mantralaya

Nw Delhi-110001, the 9 Nov. 1981

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ORDER

Whereas the Central Government is satisfied that Shri H Anoop Jai3wal, appoiti; ci to the lndi.an Police Service on pro- •

' 456,

SUPRE'J:E COURT REPORTS

(1984] 2 S.C.R. . ' bation on the result of the c; vil Service Eamination held in

the year 1979, is unsuitable for bein, g a membr of the said service, he is hereby discharged under clause (b) of Rule 12 of the Indian Police Service (P•cbation) Rules, 1954.

. The order\ of discharge. will take dfect from the date on which it is served on the said Shri Anoop Jaiswal. ' .

In the name of and on behalf of the President of India .

. , sd/-

(NARENDRA PRASA~ . ,

D'IR.ECTOR" ; •

On, receipt of the above order of discharge, the app€llant made a representation on November 14, 1981 to the Government of India .

.. :· to reconsider the ma tier. It appears that the Director of the jlational

Police Academy on this occasion recommended that the appellant may be rei11stated. That representation was rejected by the Government of India 'On April° 8, 1982. Thereafter,. he filed a petition under Art.icle 226 of the Constitution before the High Court of Delhi

contending that the.order of discharge was violative of Article 311(2)

a1d Article 1.4 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 C:ourt.-ihe appe:lant has filed this appeal with special. leave under Article 136 of the Constitution. ' . " :r The main contention of the appellant before us is that the order ' djscharging the petitioner though on the face of it appears to carry• . .no stigmais 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 tlie 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 contemplate51 under Article 311(2) of " the Constitution and ihe relevant rules governing such an enquiry.

• He has also contended that the m•tler is based on conjunctures and surm.ises and by way of illustration he has referred us to paragraph , , 13 of the counter affidavit which reads thus ; ~

"P.ara 13 ;

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ANOOP JAiSWAL v. GOVT .. OF INDIA (Venkataramiah, J.) 457

The petitioner did not conduct himself fully in accordance with the pesotibed rules and regulations during his training

period. On one. occasion"when he was sanctioned '!eave for

16 days in the month Qf May, 1981, he did not report himself for duty in time. He absented himself wilfully o.n !.6.1981 without applying for. leave for the day. For this action, he was warned by the Director against recurrence of such conquct The period of his wilful absence fof one day was treated as leave without pay. On two earlier occasions; the petitioner's conduct ws found prejudicial to good order • and discipline, on the first occsion lie was verbally counselled by the Chief. Drill Instruc_tor and.on the.second occasion a • Memo mas issued to him. ·

There was no gradation maintained Jn tile Atademy · about the aitendauce, in terms of which the petitioner had the record of being second (or may be third) highest in the Academy. However, -thisrecord in this respect was other.wise satisfactory,"

 The reply of the appellant to the above allegation is found in paragraph 6 of the rojoinder.affidavit filed by the appellant which reads : ·

"Re: Paral3: The avermentsma de in; iara 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 himsel( full f in accordance with rules and regulations. The allegatiol). made by the respondent that I absented myself wilfully on 1.6.1981 without applying for leave for. the day is highly misleading.· The correct fact is that J was sanctioned my Earned Leave on 1s:s.81 for a period o( 16days, and I was to report back for duty on 1.6.81 before 12.00 noon. I made arrangemen_t .to reach Hyderabad l:iefore 8.00 a.m. on 1.6.1981. However' en account.of late running of train in which I wµs travelling and C<rn1; equently missing the connecting train, I could reach Hyderabad only around noon and I report 'lt 1.00 p.m. .AU-these facts were duly.explained to the Asstt. Director, Outdoor Training; and he permitted. to attend the afternoon classes on 1.6.81 which J did. (However, at this sugg<slion, !applied f6r leave for the day and the leave was sanctioned without pay). It is

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SUPREME COURT REPORTS

(1984] 2 S.C.R.

incorrect to say that I was warned for'this. AU that the Director said was that o.n suc.h situations, the proper course was to .apply for a day's leavt which I did as stated earlier.

It is, therefore, very unreasonable to characterise the said incident as wilful absence:.

The further allegation. that . on the earlier occasions, the petitioner's cnduct was found

prej"dioial to good crrder and disoipline, is very vague and without any . particulars. Counselling by the Instructor . concerned i; a routine affair and, in fact, the Instructors are - . .. . \ meant. to counsel.· Even rega, rding the second occasion, wlien a memo was said to. have issued, it is not stated as to. what the offence was. His significarti to note that ·the. respondent has not denied tl\e allegation made by me that J ' . ' . . 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 me;,., os. J de11y tlie rest of the .allegations an<>l reiterate the. averments made in para l3 of tlie petition.'.'

The .. Jearned counsei for the parties have cited a number of. decisions before us in support oftheir respective cases. On going 'through theh1 we are of the view that there is not much divergence in them as to the true Jega./ principles to be follo;,, ed in ma!ters of this nature but the real proble~ appears to be one of applicati_on

of thpse pricipl's iri a given case in determining whether the parti- . cular action taken amounts to a punishment attracting Article 311(2} of the Constitutin or a mere discharge s; mPJiciter not requiring the holding of .an: enquiry as contemplated under Article 311(2). .We shall now deal with two leading cases having a bearing on the question before us. In Parshotam• Lal Dhingta. v. Uni~1i of India<" this Court after. a.n elaborate consideration of the relevant provisions of the \:onstitution and judicial decisins cited before them observed.: . . . ' ' . ... . . - .

:'The net 1; esu!t is-that "it.iS cnly iri thcsc_ C-asrs l.cre 11.e . Govcr,)Jnnt intends to inflict those_ three fcnns of punis)1ments .tl1at the Govern1nent S:'!Jva'nt must be give"n a reasonable opp0rtunity:ofsho\Ying caue against the actibn proposed fo be taken ill regard to them. It fol!O\vs, therefore, that ff the termin.c1tfon of nvice is sought to be brougU about otherwise than by way of punishment then the Gove.rnment _servant \Yhose service IS so terminated Cannot claim the

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. (I) [1958] S.C.R. 828 .

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ANOOP JAIS~AL v. GOVT. OF INDIA.(Ve11kataramiah, J.) 459

protection of Art: 3 I I (2) and the decisions cited before us and refetre.d to above, in so fa

0 r as they lay.down that principle, must be held to be rightly decided,

The rofegoing conclusion, however, does not .sol.ve the .. entire problem, for it lias yet to be ascertained as to when

an order for the termination of service is inflicted .as and by

 B way of punishment and when it is not" .. "" " ......... .

. Wliere a person is appointed' to a permanent post in a

Governmnt service on probation, the terminati.on of his service during or at the end' of the period of probation will not ordinarily and by itself be a punishment, for the Governme.nt servant, so appointed; has no right to continue to

hold such a post any more:thaq the servant employed on pw-. batio.n by a private empl0yer is entitled to do. Such a termination does not operate as a forfeiture ·.of any right of the servant to. hold th.e post, for he has no such right and obviously cannot. be a dismissal, removal or reduction in. rank by way of punishment .. ... _ ...................... .

ft does not~ however, follow that;.exceptin the three cases . mentioned .above, in. all" other cases, fer1niii.ation of service of a Government servant who has no right to h{s 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 punishmet. , ....... : ' , ................ : ..... .

Jn 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 Govermpeni has, by contract. or .under the rules, the .right to terminate the empioyment without going thro\Ighthe procedure prescribed for inflictihg the punish1'1ent

of dismissal or remo.val or reduction in rank, .the .Govern' m>:nt may, nevertheless, choo.se to punish the se.rva1\t and if the temination of servite is sought to be founded on miscond net, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with."

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'SUPREME COURT RNPORT.S

[1984] 2 S.C.R.

A fate at the G¥mnasium and acting as oile of !he ring leaders on the occasion and his explanation was obtained. Similar explanations we.re 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 notfog in the file of the Government . may be irrelevant, thecause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read alongwith the order for the purpose of determining its true character. Jf on reading the two together the Court . teacll!'s 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 m Article 311(2) of the Constitution.

The Union of India has placed before us.all the relevant material including the recommendation of the Directo~ of the National Police Academy that the appellant may be reinstated.· In this ca; e, as stated above, explanation was called for form the appellant and. other probationers: Bx, planations were received and an the probationers , Including the aJ?pellant were individually interviewed in order to ascertain' facts. Explanation submitted by him .and the answers given by others had weighed with the Director before making the recci1l!men- dation to the Government of India on the basis of which action was

takn. The only ground which ultimately prevailed upon the Director was that the appellant had not shqwn any sign u( repentance without informing him that his case would be dealt with leniently if he showed anv 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 ppelhnt stated '.I sincer.elv regret ti1e lapse,' Neither in theletter which the Director first wrote to the Central Government, nor in the counter affidavit filed fo. this Court, due importance has been given to the said expression of regret and it is further seen that no additional lapse 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 apP"llant had not shown any sign of repentance is pointed out, although thre is a reference to his reporting to duty late on an earlier date oil June !, 1981. On . goihg .through. the above record before the' Court and .taking into

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ANOOP JAISWAL v. GOVT. OF INDIA (Ven, kataramiah, J.) . 465 '

account all the attendant circumstances we are satisfied. that the Director wished to make the case of the appellaµt an example for others including those other probationers who were similarly situated so that they may learn a. Jesson therefrom.

A narration Of the facts of the case leaves. no doubt that the alleged act of misconduct on June 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 on!)' for purposes of strengthenipg the defence which is otherwise ver 1 weak. The case is one which attrac.ted Article 311(2) '(. .. of the Constitu'tion as the impugned order amounts tb a termination • ' of service by way of punishment and an enquiry.should have been held in accordance with the said' constitutional provision. That admittedly having not been done, the impugned order is liable to 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 no\\ be re-· instated in service with the sa.me 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 consequentiai benefits including the appropriate year.of allotment and the arrears of salary and allowances upto the 'date of his reinstatement. The appeaHs accofdingly allowed.

The appellant had to face this case just at the ommencement of his career. We ha, ve allowed his claim in the name of the Constitution. This should help him to regain his spirit and also encourage him to turn out to be a public servant in the true sense of that expression.

Having regard to the facts and circumstances of the case we 'feel that the parties should be directed to bear their own costs. '

H.S.K.

A.ppea/ allowed.