Anoop Jaiswal Vs. Government of India
& ANR [1984] INSC 19 (24 January 1984)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) MISRA, R.B. (J)
CITATION: 1984 AIR 636 1984 SCR (2) 453 1984
SCC (2) 369 1984 SCALE (1)105
CITATOR INFO :
R 1984 SC1110 (6) RF 1986 SC1626 (28) R 1986
SC1790 (12) F 1987 SC1833 (2) F 1990 SC1368 (28) R 1991 SC1310 (9) RF 1991
SC1490 (3) D 1992 SC2093 (17)
ACT:
Constitution of India-Art. 311 (2)-
Applicability of. Protection under Art. 311 (2) available if the order of
discharge is found to be by way of punishment. To see whether an order of
discharge is by way of punishment. form of the order is not decisive. Court
must go behind the form and ascertain the true character of the order.
HEADNOTE:
The appellant who had been selected for
appointment in the Indian Police Service was undergoing training as probationer
in the National Police Academy. On June 22, 1981 due to rain the appellant as
well other probationers reached late by a few minutes at the changed venue for
conducting P. T. For this delay explanation was called from all the
probationers. In his explanation the appellant sincerely regretted the lapse.
The appellant was considered to be one of the ring-leaders who was responsible
for the delay. The Director of the Academy without holding an enquiry into the
alleged misconduct recommended to the Government that the appellant should be
discharged from service. On the basis of that recommendation the Government by
its order dated November 9, 1981 discharged the appellant from service. The
Government rejected the appellant's representation against the order
discharging him. The appellant challenged the validity of the order under Art.
226 of the Constitution.
The High Court dismissed the petition at the
admission stage. Hence this appeal. The appellant contended that the order
discharging him was in reality an order terminating his services on the ground
of misconduct and as such 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 impugned
order of discharge is set aside.
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 the
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.
[563 E-F] Parshotam Lal Dhingra v. Union of India, [1958] S. C. R. 828;
Shamsher Singh & Anr. v. State of Punjab, [1975] 1 S.C.R,. 814; State of
Punjab & Anr.
454 v. Shri Sukh Raj Bahadur, [1969] 3 S.C.C.
603; State of Bihar & Ors. v. Shiva Bhikshuk Mishra, [1971] 2 S. C. R. 191;
R.S. Sial v. The State of U. P. & Ors., [1974] 3 S. C. R. 754; State of
U.P. v. Ram Chandra Trivedi, [1977] 1 S. C. R. 462; and I. N. Saksena v. State
of Madhya Pradesh, [1967] 2 S. C. R. 496; referred to.
In the instant case, on going through the
record and taking into account all the attendant circumstances the Court is
satisfied 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 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. That admittedly having not been done, the impugned
order is liable to be struck down. [465 B-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 3040 of 1982, Appeal by Special leave from the Judgment and order dated the
30th August, '1982 of the Delhi High Court in Writ Petition No, 1580 of 1982),
K.N. Bhatt for the Appellant, M.S. Gujral and G.S. Narain for the Respondent.
The Judgment af the Court was delivered by :
VENKATARAMAIAH, June 22, 1981 was really a
bad day for the appellant Anoop Jaiswal who having been selected by the Union
Public Service Commission for appointment in the Indian Police Service was
undergoing training as a probationer at the Sardar Vallabhbhai Patel National
Police Academy, Hyderabad along with other probationers. On that day all the
probationers were expected to be present at 5,50 A.M. at the field where the
ceremonial drill practice was to be conducted. Since it was raining at that
time it appears that the venue was shifted to the Gymnasium Hall where it was
proposed to, conduct P.T./unarmed combat practice and intimation was sent to
the trainees at the Mess. When the Assistant Director (Outdoor Training)
reached the Gymnasium at 5,50 A.M, none of the probationers had reached there.
They all reached the place 22 minutes late
i.e. by 6.15 A.M.
when the rains had abated and the parade
commenced at 6.15 A.M. It appears that earlier when a messenger sent by the
Assistant Director had gone to call the probationers they had 455 asked for a
vehicle to go to the place as it was raining.
This delay was considered as an incident
which called for an enquiry. Explanation was called from all the probationers.
The appellant was considered to be one of the
ring leaders who was responsible for the delay. When the appellant was asked
about the incident, he gave his explanation to the Director of the National
Police Academy which read thus:
"To 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 instigated 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 pro- 456
bation on tho 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:
457 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 petitioner's 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 otherwise satisfactory." The 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 458 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 day's 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
petitioner's 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," The learned counsel for the parties have cited a number of
decisions before us in support of their respective cases, 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 shall 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:
"The 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 459 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 Art. 311 must
be complied with." 460 The case of Shamsher Singh & Anr. v. State of
Punjab decided by a Bench of seven Judges of this Court directly deals with the
case of a probationer who is discharged from service without complying with
Article 311(2) of the Constitution. In that case two Judicial Officers of the
Punjab Judicial Service were involved. For purposes of the present appeal it is
sufficient if we refer to the case pertaining to Ishwar Chand Agarwal who was
at the material time serving as probationer in the Punjab Civil Service
(Judicial Branch). By an order dated December 15, 1969 his services were
terminated, The said order did not contain any statement which would attach any
stigma to the career of the officer concerned, It read as follows:
"On the recommendation of the High Court
of Punjab and Haryana, the Governor of Punjab is pleased o dispense with the
services of Shri Ishwar Chand Agarwal, P.C.S. (Judicial Branch), with immediate
effect, under Rule 7(3) in Part 'D' of the Punjab Civil Services (Judicial
Branch) Rules, 1951, as amended from time to time"," Rule 7(3) of the
Punjab Civil service (Judicial Branch) Rules, 1951 relied on in the above order
provided that on the completion of the period of probation of any member of the
service, the Governor might on the recommendation of the High Court confirm him
in his appointment if he was working against a permanent vacancy, or if his
were or conduct was reported by the High Court to be unsatisfactory, dispense
with his services or revert him to his former substantive post, if any, or
extend his period of probation and thereafter pass such orders as he could have
passed on the expiry of the first period of probation, In this case Ray, C.J.
Observed in the course of his judgment-thus :
"No abstract proposition can be
laid-down that where the services of a probationer are terminated 'without
saying anything more in the order of termination than that the services are terminated
it can never amount to a punishment in the facts and circumstances of the case.
If a probationer is discharged on the ground of misconduct or inefficiency or
for similar reason without a proper enquiry and without his getting a
reasonable opportunity of showing cause against his discharge it may in a given
case amount to removal from service within the meaning of Article 311(2) of the
Con- 461 Before a probationer is confirmed the authority concerned, is under an
obligation to consider whether the work of the probationer is satisfactory or
whether he is suitable for the post, In the absence of any Rules governing a
probationer in this respect. the authority may come to the conclusion that on
account of inadequacy for the job for any temperamental or other object not
involving moral turpitude the probationer is unsuitable for the job and hence
must be discharged. No punishment is involved in this, The authority may in
some cases be of the view that the conduct of the probationer may result in
dismissal or removal on an inquiry. But in those cases the authority may not
hold an inquiry and may simply discharge the. probationer with a view to giving
him a chance to make good in other walks of life without a stigma at the time
of termination of probation. If, on the other hand, the probationer is faced
with an enquiry on charges of misconduct of inefficiency or corruption, and if
his services are terminated without following the provisions of Article 311(2)
he can claim protection." Having said so, the learned Chief Justice
proceeded to examine the facts of the case and found that an enquiry officer
nominated by the Director of Vigilance had recorded statements of same
Witnesses behind the back of the officer concerned in respect of certain
allegations of misconduct and had on that basis made a report to the High Court
and that the High Court had after accepting the said report, made a
recommendation' to the Governor to the effect that the officer was not a
suitable person to be retained in service. The order of termination was because
of the recommendations in the report. The the learned Chief Justice observed.
"The order of termination of the
services of Ishwar Chand Agarwal is clearly by way of punishment in the facts
and circumstance of the case. The High Court not only denied Ishwar Chand
Agarwal the protection under Article 311 but also denied itself the dignified
control over the subordinate judiciary. The form of the order is not decisive
as to whether the order is by way of punishment. Even an innocuously worded
order terminating the service may in the fact and circumstances of the case
establish that an enquiry into allegations of serious and grave character of
misconduct involving stigma has been made in infraction of the provision 311.
In such a case the simplicity of the form of 462 the order will not give any
sancity. That is exactly what has happened in the case of Ishar Chand Agarwal.
The order of termination is illegal and must
be set aside." Krishna Iyer, J. who agreed with the learned Chief Justice
had at the end of this judgment this to say:
"Again, could it be that if you
summarily pack off a probationer, the order is judicially unscrutable and
immune ? If you conscientiously seek to satisfy yourself about allegations by
some sort of enquiry you get caught in the coils of law, however harmlessly the
order may be phrased ? And, so this sphinx-complex has had to give way in later
cases. In some cases the rule of guidance has been stated to be 'the substance
of the matter', and the 'foundation' of the order. . When does 'motive'
trespass into 'foundation' ? When do we lift the veil of form to touch the
'substance' ? When the Court says so, These 'Freudian' frontiers obviously fail
in the work-a-day world and Dr. Tripathi's observations in this context are not
without force. He says;
"As already explained, in a situation
where the order of termination purports to be a mere order o f discharge
without stating the stigmatizing results if the depart mental enquiry a search
for the 'substance of the matter' will be indistinguishable from a search for
the motive (real, unrevealed object) of the order. failure to appreciate this
relationship between motive (the real, but unrevealed object) and from (the
apparent, or officially revealed object) in the present context has led to an
unreal interplay of words and phrases wherein symbols like 'motive',
'substance' 'form' or 'direct' parade in different combinations without
communicating precise situations or entities in the world of facts."
" On behalf of the Union of India reliance has been placed on State of
Punjab & Anr. v. Shri SukhRaj Bahadur, Union of India & Ors. v. R.S.
Dhaba, State of Bihar & Ors. v. Shiva Bhikshiuk Mishra, R.S. 463 Sial v.
The State of U.P. & Ors., State of U.P. v. RamChandra Tridi and I.N.
Saksena v. State of Madhya Pradesh. We have gone through these decisions.
Except the case of Ram Chandra Trivedi supra) all other cases referred to above
were decided prior to the decisions in Shamsher Singh's case (supra' which is a
judgment delivered by a Bench of seven Judges. As pointed out by us in all
these cases including the case of Ran Chandra Trivedi (supra) the principle
applied is the one enunciated by Parshotam Lal Dhinga's case (supra) which we
have referred to earlier. lt is urged relying upon the observation in Shri Sukh
Raj Bahal's case (supra) that it is only when there is a full scale
Departmental enquiry envisaged by Article 311(2) of the Constitution i.e. an
enquiry officer is appointed, a charge sheet submitted, explanation called for
and considered, any termination made thereafter will, attract the operation of
Article 311(2). It is significant that in the very same decision it is stated
that the circumstances preceding or attendant on the order of termination of
service have to be examined in each case, the motive behind it being
immaterial. As observed by Ray, C.J. in Shamsher Singh's case (supra) the form
of the order is not decisive as to whether the order is by way of punishment
and that even an innocuously worded order terminating the service may in the
fact and circumstances of the case establish that an enquiry into allegations
of serious and grave character of misconduct involving stigma has been made in
infraction of the provision of Article. 311(2).
It 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 the 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.
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 464 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 his 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 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 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 465 account all the attendant
circumstances we are satisfied that the Director wished to make the case of the
appellant an example for others including those other probationers who were
similarly situated so that they may learn a lesson there from.
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' 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 reinstatement. The appeal
is accordingly allowed.
The appellant had to face this case just at
the commencement of his career. We have 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. Appeal allowed.
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