http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: CHANDRA PRAKASH SHAHI

       Vs.

RESPONDENT: STATE OF U.P.  & ORS.

DATE OF JUDGMENT:       25/04/2000

BENCH: D.P.Wadhwa, S.S.Ahmad

JUDGMENT:

     S.SAGHIR AHMAD, J.

     Leave granted.

     What  is "motive";  what is "foundation";  what is the difference  between the two;  these are questions which  are said to be still as baffling as they were when Krishna Iyer, J.   in Samsher Singh vs.  State of Punjab, (1974) 2 SCC 831 =  1975 (1) SCR 814 = AIR 1974 SC 2192, observed as under  : "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." But, as we  shall presently  see,  the  law, on account  of  recent  judgments concerning   the  services  of  a  probationer,  is   fairly well-settled  and there is no cause for being confounded  or bewildered.   The perplexity which, at one time,  surrounded the torrid question involved in this case has yielded to the clarity  of  reasons propounded by this Court from  time  to time  in  recent  times to which a reference shall  be  made during  the  course of this discussion.  The  appellant  was recruited  on  1.10.1985 as a Constable in  34th  Battalion, Pradeshik   Armed  Constabulary,  U.P.    under   the   U.P. Pradeshik  Armed  Constabulary Act, 1948.  He completed  his training  on  6th  of September, 1986 and  was,  thereafter, placed on probation for a period of two years.  He completed his period of probation on 5th of September, 1988 but a year later,  on 19th of July, 1989, his services were  terminated by a simple notice in terms of Rule 3 of the U.P.  Temporary Government  Servants  (Termination of Service) Rules,  1975. The  order  of termination was challenged by  the  appellant before  the  U.P.   Public Service Tribunal  which,  by  its judgment dated 18.1.1993, allowed the claim petition and set aside the order dated 19.7.1989 by which the services of the appellant were terminated.  Respondents 1 and 2, thereafter, approached  the High Court through a Writ Petition which was allowed on 27th of November, 1997 and the judgment passed by the  Tribunal  was  set  aside.   Learned  counsel  for  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

appellant has contended that the order by which the services of   the  appellant  were   terminated,   though   innocuous apparently,   was,  in  fact,   punitive  in  nature.    The appellant, it is contended, could not have been removed from service  without holding a regular departmental enquiry.  It is  further contended that the courts including the Tribunal constituted  under the U.P.  Public Services (Tribunal) Act, 1976  have full jurisdiction to go behind the order to  find out whether it was an order of termination simpliciter or it was an order passed by way of punishment.  It is pointed out that  this  aspect  of  the matter  was  considered  by  the Tribunal  which,  on the basis of the facts set out  in  the counter-affidavit filed on behalf of the respondents as also the  entire  service  record  of  the  appellant  which  was produced  before  it, came to the conclusion that the  order was  punitive  in  nature.  This finding, it  is  contended, could  not  have been disturbed by the High Court in a  Writ Petition  under  Article 226 of the  Constitution.   Learned counsel  for the respondents has, on the contrary, contended that  the appellant was a temporary employee and, therefore, his services could be terminated at any time by giving him a month’s  notice  in  terms  of  U.P.   Temporary  Government Servants  (Termination  of  Service) Rules,  1975.   In  the Counter-Affidavit filed before the Tribunal before which the order  dated 19.7.1989 (termination order) was challenged by the  appellant,  it was, inter alia, stated that on 24th  of June,  1989 while camping at Ghat Varanasi for Flood  Relief Training,  a quarrel had taken place between two  Constables as  a  result  of which Constable Arun  Prakas  Tewari  used filthy and unparliamentary language against Constable Radhey Shyam  Pandey.  He also caused injuries to Constable  Radhey Shyam Pandey by kicks and fists.  He was joined by Constable Rajesh Kumar Pandey.  Other Constables also joined the fray. A  preliminary enquiry was conducted by Shri Kailash Chaube, Assistant Commandant, P.A.C.  and a few constables including the   appellant  were  found   guilty  of  indiscipline  and misbehaviour and it was for this reason that the services of the  appellant were terminated.  The respondents admitted in the  counter-  affidavit that there was no adverse  material against  the appellant before the incident in question.  The original records which were produced before the Tribunal and were scrutinised by it indicated that the order by which the services  of  the  appellant were terminated was  passed  on account  of  his alleged involvement in the quarrel  between the  constables at the Ghat Varanasi Camp.  The Tribunal has found  as  under:- "The preliminary enquiry file  No.Ja-2/89 relating  to the petitioner and other constables of 34th Bn. P.A.C.   Varanasi  from  page 21/34 to 22/33  dated  26.6.89 shows  that the enquiry was conducted by Sri Kailash Chaube, Assistant  Commandant, 34th Bn.  P.A.C.  Varanasi and in the preliminary  enquiry  report he concluded at pages 21/34  to 22/37  that the petitioner along with others had indulged in a  misconduct  of hurling blows and used filthy language  to the  superior  officers of the Department and he  was  found guilty  along  with  others  for  the  said  misconduct  and misbehaviour.   Thereafter  on internal page 6 the  impugned order  of termination dated 19.7.89 was passed in respect of the petitioner and on the same day he was served the copy of the  order."  It was in view of the above finding  that  the termination  order was held to be punitive in nature and was consequently  set  aside by the Tribunal but the High  Court relying  upon  the decision of this Court in State  of  U.P. vs.  Kaushal Kishore Shukla, (1991) 1 SCC 691 = 1991 (1) SCR 29, quashed the order of the Tribunal.  The first contention of the learned counsel for the appellant is about the status

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

of  the  appellant.  Learned counsel has contended that  the appellant  could not have been legally removed from service, except  by way of disciplinary action in accordance with the requirements  of Article 311(2) of the Constitution.  It  is contended  that after completion of the period of probation, the   appellant  had  acquired   ‘permanent’   status   and, therefore,  his services could not have been terminated by a mere notice or a month’s pay in lieu thereof.  This argument cannot  be accepted.  An assertion that on completion of the period  of probation the appellant had acquired  ‘permanent’ status  is  based on a misreading of the provisions of  Para 541  of  the U.P.  Police Regulations, relevant  portion  of which  is  quoted  below :  "541.  (1) Recruits will  be  on probation  for  a  period of two years, except that  --  (a) those  recruited  directly  in  the  Criminal  Investigation Department  or  Districts  Intelligence  Staff  will  be  on probation  for three years, and (b) those transferred to the Mounted  Police will be governed by the directions contained in  paragraph  84 of the Police Regulations.  If during  the period  of  probation  their  conduct  and  work  have  been satisfactory  and they are approved by the Deputy  Inspector General  of Police at the end of the period of probation for service  in  the  force the Superintendent  of  Police  will confirm  them in their appointment." A perusal of the  above provision would indicate that the period of probation is two years.   The  Regulation is silent as to the maximum  period beyond which the period of probation cannot be extended.  In the  absence  of  this prohibition, even  if  the  appellant completed  two years of probationary period successfully and without  any  blemish,  his  period of  probation  shall  be treated to have been extended as a ‘permanent’ status can be acquired  only by means of a specific order of confirmation. This Court in State of Punjab vs.  Dharam Singh (1968) 3 SCR 1  = AIR 1968 SC 1210 ruled out the proposition of automatic confirmation on completion of the period of probation.  This Court ruled that the ‘permanent’ status can be acquired only by a specific order confirming the employee on the post held by  him on probation.  To the same effect is the decision in Partap  Singh  vs.  U.T.  of Chandigarh (1979) 4 SCC  263  = 1980  (1)  SCR  487  =  AIR   1980  SC  57.   In   Municipal Corporation,  Raipur vs.  Ashok Kumar Misra (1991) 3 SCC 325 =  1991 (2) SCR 320 = AIR 1991 SC 1402, the same  principles were  reiterated.  In view of the above, the contention that the  appellant  had  acquired ‘permanent’ status  cannot  be accepted.  His status was that of a probationer.  Now, it is well-settled  that  the  temporary  Government  servants  or probationers  are  as  much entitled to  the  protection  of Article   311(2)  of  the   Constitution  as  the  permanent employees  despite  the  fact   that  temporary   government servants  have no right to hold the post and their  services are  liable  to be terminated at any time by giving  them  a month’s  notice without assigning any reason either in terms of  the contract of service or under the relevant  statutory rules  regulating the terms and conditions of such  service. The  courts can, therefore, lift the veil of an  innocuously worded  order  to look at the real face of the order and  to find  out  whether  it  is as  innocent  as  worded.   (See: Parshotam  Lal Dhingra vs.  Union of India, AIR 1958 SC 36 = 1958  SCR  828).   It was explained in  this  decision  that inefficiency,  negligence  or misconduct may have  been  the factors  for  inducing  the   Government  to  terminate  the services  of  a  temporary employee under the terms  of  the contract or under the statutory Service Rules regulating the terms   and  conditions  of  service   which,  to   put   it differently,  may  have been the motive for terminating  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

services  but  the motive by itself does not make the  order punitive  unless the order was "founded" on those factors or other   disqualifications.    Following   the  decision   of Parshottam  Lal Dhingra’s case (supra), this Court in  State of  Bihar  vs.  Gopi Kishore Prasad, AIR 1960 SC  689,  held that  if the services of a probationer are terminated on the basis  of an enquiry into the allegations of misconduct  and inefficiency,  the order would be punitive.  It was  pointed out  that in the case of a probationer, it is always open to the  Government  to  hold an enquiry merely  to  assess  the merits  of the employee to find out whether he was fit to be retained in service and confirmed.  In another case relating to  a  probationer,  namely,  in State of  Orissa  vs.   Ram Narayan  Das, 1961 (1) SCR 606 = AIR 1961 SC 177, where  the services  were  governed by Rule 55-B of the Civil  Services (Classification,  Control  and Appeal) Rules which  provided that where the services of a probationer were intended to be terminated  either during the period of probation or at  the end  of  that  period  for any fault or on  account  of  his unsuitability,  he  would  be  apprised of  the  grounds  of unsuitability  and would also be afforded an opportunity  to show-cause  against it before orders are passed against him, it  was  held  that the termination order would  not  become punitive  merely  because of an antecedent enquiry  but  the real  object  or purpose of the enquiry had to be found  out whether   it  was  held  merely   to  assess   the   general unsuitability of the employee or it was held into charges of misconduct  or  inefficiency  etc.    In  Ranendra   Chandra Banerjee  vs.   Union of India, AIR 1963 SC 1552 = 1964  (2) SCR  135, which again was a case relating to a  probationer, it  was  held  that  on account of Rule 55-B  of  the  Civil Services  (Classification, Control and Appeal) Rules if  the enquiry  was  held  for the limited purpose of  finding  out whether the employee was fit to be retained or not, the said enquiry  would  not make the order punitive as  the  enquiry could  not  be  related to any misconduct of  the  employee. This  view  was reiterated in Jagdish Mitter vs.   Union  of India,  AIR  1964  SC  449.  In Madan Gopal  vs.   State  of Punjab,  AIR 1963 SC 531 = 1963 Supp.(3) SCR 716, the  order by which the services of the employee were terminated was an order  simpliciter in nature, which was innocuously  worded, but it was held by this Court that the form of the order was not  decisive  and the Court could go behind that  order  to find  out whether it was founded upon the misconduct of  the employee.   These  cases, namely, State of Bihar  vs.   Gopi Kishore  Prasad  AIR 1960 SC 689;  State of Orissa vs.   Ram Narayan Das (1961) 1 SCR 606 = AIR 1961 SC 177;  Madan Gopal vs.  State of Punjab (1963) Supp.  (3) SCR 716 = AIR 1963 SC 531;  and Jagdish Mitter vs.  Union of India AIR 1964 SC 449 were  considered by this Court in Champaklal Chimanlal  Shah vs.   Union  of  India (1964) 5 SCR 190 = AIR 1964  SC  1854 where  the  services of the appellant, who was  a  temporary employee,  were  terminated  by giving him a  simple  notice specifying  therein that the services would stand terminated with  effect  from the date mentioned therein.  But,  before the  termination  of  his services, he was  called  upon  to explain  certain irregularities and was also asked to submit his  explanation,  but no regular departmental  enquriy  was held.   It was held that since no punitive action was  taken against  the  appellant,  there  was   no  question  of  the applicability  of  Article 311(2) of the  Constitution.   In another  significant  decision in State of Punjab vs.   Sukh Raj  Bahadur  (1968) 3 SCR 234 = AIR 1968 SC 1089 where  the respondent,  who was officiating in the Punjab Civil Service (Executive  Branch) was reverted to his substantive post  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

the Delhi Administration after issuing him a charge sheet to which  a  reply  was  submitted by the  respondent  but  the disciplinary enquiry was not proceeded with, and an order of reversion  was passed, it was held that the order could  not be  treated  to have been passed by way of punishment.   The Court  laid  down  the following propositions  :   "1.   The services  of  a  temporary servant or a probationer  can  be terminated  under  the  rules  of his  employment  and  such termination  without  anything  more would not  attract  the operation  of  Art.   311  of  the  Constitution.   2.   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.  3.  If the order visits the  public  servant with any evil consequences or casts  an aspersion  against  his character or integrity, it  must  be considered to be one by way of punishment, no matter whether he  was  a mere probationer or a temporary servant.  4.   An order  of  termination  of service is  unexceptionable  form preceded  by an enquiry launched by the superior authorities only  to  ascertain  whether the public  servant  should  be retained  in service, does not attract the operation of Art. 311  of  the  Constitution.  5.  If there  be  a  full-scale departmental  enquiry  envisaged  by  Art.   311,  i.e.   an Enquiry  Officer  is  appointed, a  charge-sheet  submitted, explanation   called  for  and   considered,  any  order  of termination  of  service  made thereafter will  attract  the operation of the said Article." These principles as also the principle  laid  down  in  Champaklal’s  case  (supra)  were reiterated  by  this Court in Union of India and  Ors.   vs. R.S.   Dhaba  (1969) 3 SCC 603;  State of Bihar  vs.   Shiva Bhikshuk  Mishra  (1970) 2 SCC 871 = 1971 (2) SCR 191 =  AIR 1971  SC 1011;  R.S.  Sial vs.  State of U.P.  (1974) 3  SCR 754  =  AIR 1974 SC 1317 = (1975) 3 SCC 111 and it was  laid down  that  in  order to attract the provisions  of  Article 311(2)  it  has  to  be   seen  whether  the  misconduct  or negligence  was a mere motive for the order of reversion  or termination  or  whether it was the very foundation of  that order.   It was again reiterated that the form of the  order was  not conclusive of its true nature and the Court has  to examine the entirety of circumstances preceding or attendant on  the  order  of termination.  To the same effect  is  the decision  of this Court in State of U.P.  vs.  Sughar  Singh (1974) 1 SCC 218 = 1974 (2) SCR 335 = AIR 1974 SC 423, which related to reversion and in which reliance was placed on two earlier  decisions in Madhav Laxman Vaikunthe vs.  State  of Mysore  AIR 1962 SC 8 = 1962 (1) SCR 886 and State of Bombay vs.  F.A.  Abraham AIR 1962 SC 794 = 1962 Supp.  (2) SCR 92. It  was,  however,  laid down that if the order  visits  the employee  with  penal  consequences,   the  order  would  be punitive.   It  was  for  this  reason  that  the  order  of reversion  in  that  case was held to be bad.  In  the  same year,  came the Seven-Judge Bench decision of this Court  in Samsher  Singh  vs.  State of Punjab (1974) 2 SCC 831 =  AIR 1974  SC  2192  = 1975 (1) SCR 814, in  which  "Motive"  and "Foundation" theory was reiterated and it was laid down that the  question whether an order terminating the services of a temporary employee or a probationer was by way of punishment or  not would depend on the facts and circumstances of  each case.   The  form  of the order, it was  observed,  was  not conclusive  and an innocuously worded order, terminating the services  of  a temporary employee or a probationer may,  in the  facts  of  the case, be found to have  been  passed  on account  of serious and grave misconduct in utter  violation of  Article  311(2) of the Constitution.  This decision  was followed  in  State of Punjab vs.  P.S.  Cheema AIR 1975  SC

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

1096  = (1975) 4 SCC 84 and the termination order, regarding which a concurrent finding of fact was recorded by the trial court,  the lower appellate court and also by the High Court in second appeal that it was punitive in nature, was held to be  bad.   While the judicial pronouncements stood  at  that stage,  the  entire case law was reviewed by this  Court  in State  of U.P.  vs.  Ram Chandra Trivedi AIR 1976 SC 2547  = (1976)  4  SCC  52  =  1977 (1) SCR 462,  in  which  it  was contended  that  the legal and Constitutional position  with regard  to an order of termination was not settled as  there were  conflicting decisions of this Court on that  question. This  contention  was  not accepted and on a review  of  the entire  case law, including the Seven- Judge Bench  decision in  Samsher Singh’s case (supra), it was laid down that  the Court has consistently held that the "motive", in passing an order of termination or reversion, operating in the minds of the Govt.  was not a relevant factor for determining whether the  order  was  passed  by way  of  punishment.   What  was determinative  of  the true nature of the order was not  its exterior  form  but the "foundation" on which it was  based. If  misconduct or negligence was the foundation of the order of  termination,  or for that matter, reversion,  the  order would be punitive in nature.  The Court also referred to the decision in Regional Manager vs.  Pawan Kumar Dubey (1976) 3 SCC  334 = AIR 1976 SC 1766 = 1976 (3) SCR 540, in which  it was  observed  as  under :  "We think  that  the  principles involved in applying Article 311(2) having been sufficiently explained  in  Shamsher  Singh’s  case (AIR  1974  SC  2192) (supra)  it should no longer be possible to urge that Sughar Singh’s case (supra) could give rise to some misapprehension of  the law.  Indeed, we do not think that the principles of law  declared and applied so often have really changed.  But the   application  of  the  same   law  to   the   different circumstances  and facts of various cases which have come up to  this  Court could create the impression  sometimes  that there  is some conflict between different decisions of  this Court.   Even  where there appears to be some  conflict,  it would,  we  think, vanish when the ratio decidendi  of  each case is correctly understood.  It is the rule deducible from the  application of law to the facts and circumstances of  a case  which  constitutes  its ratio decidendi and  not  some conclusion  based upon facts which may appear to be similar. One  additional  or  different  fact can  make  a  world  of difference  between  conclusions in two cases even when  the same  principles are applied in each case to similar facts." ( Emphasis supplied ) Termination simpliciter of a temporary Govt.   servant  on  the ground of  unsuitability  does  not attract  the provisions of Article 16, nor is the protection under  Article  311(2)  of the Constitution available  to  a temporary  Govt.   servant unless the  termination  involved "stigma",  was  the  dictum  laid  down  by  this  Court  in Commodore  Commanding, Southern Naval Area, Cochin vs.  V.N. Rajan (1981) 2 SCC 636 = AIR 1981 SC 965 = (1981) 3 SCR 165. In  Gujarat  Steel  Tubes  Ltd.  vs.   Gujarat  Steel  Tubes Mazdoor Sabha (1980) 2 SCC 593 = (1980) 1 LLJ 137 = 1980 (2) SCR 146 = AIR 1980 SC 1896, it was laid down that a Court or Tribunal  is  entitled  to find out the true nature  of  the termination  order,  namely, whether it is punitive or  not. In  this regard, the form of the order will not be  decisive and  the  Court can lift the veil to see the true nature  of the  order.   The  Court observed that  the  substance,  not semblance, governs the decision.  The Court further observed that  what  was  decisive  was  the  plain  reason  for  the discharge  and  not the strategy of a non-enquiry.   If  the basis was not the misconduct, the order could be saved.  The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

Court  further observed that the mere fact that after  being satisfied  of the guilt the Govt.  abandons the enquiry  and proceeds  to terminate the services by a simple order, would not be the relevant factor in considering the true nature of the  order.   Given an alleged misconduct and a  live  nexus between  it  and the termination of service, the  conclusion would  be  "dismissal" even if full benefits, as  on  simple termination,  are  given  and non-injurious  terminology  is used.   The tests for determining whether termination was  a termination simpliciter or by way of punishment laid down in earlier  decisions  were  reiterated in Oil  &  Natural  Gas Commission vs.  Md.  S.  Iskender Ali (Dr.) (1980) 3 SCC 428 = (1980) 2 LLJ 155 = 1980 (3) SCR 603 = AIR 1980 SC 1242 and Nepal  Singh vs.  State of U.P.  (1980) 3 SCC 288 = (1980) 2 LLJ  161  =  (1980)  LIC  747.  The latter  was  a  case  of termination  simpliciter on account of the drive launched by the  Inspector  General  of Police for  weeding  out  Police Officers  who  were unsuitable or unfit to be  continued  in service.   On  the facts and circumstances of that case,  it was  held that the question whether the appellant, who was a temporary  servant, should be retained in service,  directly arose  during  the  drive launched to  weed  out  unsuitable officers  and  it was for this reason that  the  termination order  was upheld, particularly as there was nothing to show that  the  termination order was made by way of  punishment. In  another  decision  which, incidentally, again  is  Nepal Singh vs.  State of U.P.  (1985) 1 SCC 56 = AIR 1985 SC 84 = (1985)  2 SCR 1, the Court held that where the services of a temporary  Govt.  servant are terminated on the ground  that his  reputation  for  corruption makes  him  unsuitable  for retention in the service, the State, or for that matter, any statutory  employer, must take great care when proceeding to terminate a career on the ground of unsuitability, to ensure that its order is founded on definable material, objectively assessed and relevant to the ground on which the termination is  effected.  It was observed that the Court will view with great disfavour any attempt to circumvent the requirement of Article  311(2).   In  Anoop Jaiswal vs.   Govt.   of  India (1984)  2  SCC 369 = 1984 (2) SCR 453 = AIR 1984 SC 636,  it was  found on a consideration of the entire record that  the real foundation for the order of discharge of the appellant- probationer was the alleged act of misconduct.  This, it was observed,  made  the impugned order punitive in  nature  and was,  therefore,  held to be bad.  Shesh Narain Awasthy  vs. State  of  U.P.   & Ors.  (1988) 2 LLJ 99 was a  case  of  a temporary  Constable in the U.P.  Police whose services were terminated by an apparently innocuous order.  On scrutiny it was  found  that the services were terminated on account  of his  alleged  participation  in activities  of  unrecognised Police   Karamchari   Parishad.    The  termination   order, therefore,  was held to be bad as having been passed without following  the procedure prescribed under Article 311(2)  of the  Constitution.  In Ravindra Kumar Misra vs.  U.P.  State Handloom Corporation Ltd.  1987 Supp.  SCC 739 = AIR 1987 SC 2408  =  1988 (1) SCR 501, it was held that for finding  out the  effect  of  the order of termination,  the  concept  of "motive"  and  "foundation" has to be kept in mind.  It  was further observed that no strait-jacket test can be laid down to  distinguish  the  two,  namely,  the  ‘motive’  and  the ‘foundation’.   Whether motive has become the foundation has to  be decided by the Court with reference to the facts of a given  case.   It  was  also   observed  that  ‘motive’  and ‘foundation’  are  certainly  two  points   of  one  line  - ordinarily  apart but when they come together, ‘motive’ gets transformed  and  merged  into ‘foundation’.   It  was  also

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

observed  that since in regard to a temporary employee or an officiating  employee  an  assessment  of  the  service   is necessary,  merely because the Authority proceeds to make an assessment  and records its views, it would not be available to  be utilised to make the order of termination,  following such  assessment, punitive in character.  It was observed by this  Court  that in the relationship of master and  servant there  is a moral obligation to act fairly.  There should be an  assessment of the work of the employee and if any defect is  noted in his working, the employee should be made  aware of the defect in his work and deficiency in his performance. Defects  or deficiency, indifference or indiscretion may  be with  the employee by inadvertance and not by incapacity  to work.   Timely  communication of the assessment of  work  in such cases may put the employee on the right track.  Without any  such  communication,  it  was  observed,  it  would  be arbitrary  to  give a movement order to the employee on  the ground  of  unsuitability.  In State of U.P.   vs.   Kaushal Kishore Shukla (1991) 1 SCC 691 = 1991 (1) SCR 29, which has been relied upon by the High Court in the impugned judgment, it  was  held that merely because a preliminary enquiry  was held  against  a  temporary Govt.  servant, would not  be  a ground  to  hold that an order, otherwise innocuous  on  the face  of  it,  by which the services  were  terminated,  was punitive  in nature.  The decision in Nepal Singh vs.  State of  U.P.  (1985) 1 SCC 56 = 1985 (2) SCR 1 = AIR 1985 SC  84 was  held  to be per incuriam as in that case,  Champaklal’s case  (supra) was not considered, but the Court did  observe that  if on an overall assessment of the work and conduct of the  employee  the  authority competent in  that  behalf  to terminate  the service, is satisfied that on account of  the employee’s   general  unsuitability   and  inefficiency   or misconduct  it would not be in the public interest to retain him  in service, it may either terminate the services by  an innocuous  order  or may proceed to take punitive action  by holding a regular departmental enquiry.  The Court, however, emphasised that the termination has to be in accordance with the  terms  and conditions of service regulated by  relevant rules.   In  Radhey  Shyam  Gupta   vs.   U.P.   State  Agro Industries  Corporation  Ltd.  & Anr.  JT 1998 (8) SC 585  = (1999)  2 SCC 21, which related to a probationer, the  whole legal  position was reviewed by Brother M.  Jagannadha  Rao, J.,  in an illuminating and research- oriented judgment  and after  considering various decisions including the  decision in  Kaushal Kishore Shukla’s case (supra) and a still  later decision  in Commissioner of Food & Civil Supplies, Lucknow, U.P.   vs.   Prakash Chandra Saxena (1994) 5 SCC 177 =  1994 (3) Scale 12, so as to trace the development of law relating to  this  aspect  of service jurisprudence, laid  down  that there  has not been any conflict of opinion inter se various judgments  including  those  laying down  the  "Motive"  and "Foundation"  theory.  It was held that the question whether the  order  by  which  the   services  were  terminated  was innocuous  or  punitive in nature had to be decided  on  the facts  of each case after considering the relevant facts  in the  light  of the surrounding circumstances.   Benefit  and protection   of  Article  311(2)  of  the  Constitution   is available  not  only  to temporary servants but  also  to  a probationer  and  the court in an appropriate case would  be justified in lifting the veil to find out the true nature of the  order by which the services were terminated.  The whole case  law  is  thus  based on the  peculiar  facts  of  each individual  case and it is wrong to say that decisions  have been  swinging like a pendulam;  right, the order is  valid; left,  the  order  is punitive.  It was  urged  before  this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

Court,  more  than once including in Ram  Chandra  Trivedi’s case  (supra) that there was a conflict of decisions on  the question  of  order  being a simple termination order  or  a punitive  order,  but  every  time the  Court  rejected  the contention  and  held  that  the apparent  conflict  was  on account  of different facts of different cases requiring the principles  already  laid  down  by this  Court  in  various decisions  to be applied to a different situation.  But  the concept  of  "motive"  and "foundation" was always  kept  in view.   The important principles which are deducible on  the concept   of  "motive"  and   "foundation",   concerning   a probationer, are that a probationer has no right to hold the post  and his services can be terminated at any time  during or  at  the  end of the period of probation  on  account  of general  unsuitability for the post in question.  If for the determination of suitability of the probationer for the post in  question or for his further retention in service or  for confirmation,  an enquiry is held and it is on the basis  of that  enquiry  that  a decision is taken  to  terminate  his service,  the order will not be punitive in nature.  But, if there  are allegations of misconduct and an enquiry is  held to  find  out  the  truth of that misconduct  and  an  order terminating  the  service  is passed on the  basis  of  that enquiry,  the  order  would  be punitive in  nature  as  the enquiry  was held not for assessing the general  suitability of  the  employee for the post in question, but to find  out the   truth  of  allegations  of  misconduct  against   that employee.   In this situation, the order would be founded on misconduct  and  it will not be a mere matter  of  "motive". "Motive"  is  the  moving power which impels  action  for  a definite  result, or to put it differently, "motive" is that which incites or stimulates a person to do an act.  An order terminating  the  services of an employee is an act done  by the  employer.   What  is  that factor  which  impelled  the employer  to  take  this action.  If it was  the  factor  of general  unsuitability of the employee for the post held  by him,  the action would be upheld in law.  If, however, there were  allegations of serious misconduct against the employee and  a  preliminary  enquiry  is held  behind  his  back  to ascertain  the truth of those allegations and a  termination order  is  passed  thereafter, the order, having  regard  to other  circumstances, would be founded on the allegations of misconduct  which  were found to be true in the  preliminary enquiry.   Applying  these  principles to the facts  of  the present case, it will be noticed that the appellant, who was recruited  as  a Constable in the 34th Battalion,  Pradeshik Armed  Constabulary,  U.P., had successfully  completed  his training  and  had also completed two years of  probationary period  without  any blemish.  Even after the completion  of the  period of probation under Para 541 of the U.P.   Police Regulations,  he continued in service in that capacity.  The incident  in  question, namely, the quarrel was between  two other  Constables in which the appellant, to begin with, was not  involved.   When  the quarrel was joined  by  few  more Constables  on either side, then an enquiry was held to find out  the  involvement of the constables in that  quarrel  in which  filthy  language was also used.  It was through  this enquiry  that appellant’s involvement was found established. The termination was founded on the report of the preliminary enquiry as the employer had not held the preliminary enquiry to  find out whether the appellant was suitable for  further retention  in service or for confirmation as he had  already completed  the period of probation quite a few years ago but was  held  to find out his involvement.  In this  situation, particularly  when it is admitted by the respondent that the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on  the allegations of misconduct.  There is another  aspect of  the  matter.  Para 541 of the U.P.   Police  Regulations provides  as  under  :   "541.   (1)  Recruits  will  be  on probation  for  a  period of two years, except that  --  (a) those  recruited  directly  in  the  Criminal  Investigation Department  or  District  Intelligence   Staff  will  be  on probation  for three years, and (b) those transferred to the Mounted  Police will be governed by the directions contained in  paragraph  84 of the Police Regulations.  If during  the period  of  probation  their  conduct  and  work  have  been satisfactory  and they are approved by the Deputy  Inspector General  of Police at the end of the period of probation for service  in  the  force the Superintendent  of  Police  will confirm them in their appointment.  (2) In any case in which either  during or at the end of the period of probation, the Superintendent  of  Police is of opinion that a  recruit  is unlikely  to make a good police officer he may dispense with his  services.   Before, however, this is done  the  recruit must  be  supplied with specific complaints and  grounds  on which  it is proposed to discharge him and then he should be called  upon  to  show  cause as to why  he  should  not  be discharged.   The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge.  (3) Every order  passed  by a Superintendent under  sub-paragraph  (2) above  shall, subject to the control of the Deputy Inspector General,  be  final."  Where, therefore, the services  of  a probationer  are proposed to be terminated and a  particular procedure is prescribed by the Regulations for that purpose, then the termination has to be brought about in that manner. The  probationer-constable has to be informed of the grounds on  which his services are proposed to be terminated and  he is  required  to explain his position.  The reply is  to  be considered  by  the Superintendent of Police so that if  the reply  is found to be convincing, he may not be deprived  of his  services.   If  this  procedure  is  followed  and  the services are terminated thereafter, it would not amount to a punitive  action.   The  rule  being  mandatory  in  nature, compliance  thereof would not alter the nature of the  order passed  against the probationer.  This aspect was considered by  this Court in two decisions, namely, The State of Orissa &  Anr.   vs.  Ram Narayan Das (1961) 1 SCR 606 (supra)  and Ranendra  Chandra Banerjee vs.  Union of India (1964) 2  SCR 135  (supra)  in  terms of Rule 55-B of the  Civil  Services (Classification,  Control  &  Appeal) Rules, which,  in  all respects,   is  akin  to  Para   541  of  the  U.P.   Police Regulations  quoted  above.  Relevant portion of  Rule  55-B which  was  extracted in the case of State of Orissa &  Anr. vs.  Ram Narayan Das (supra) is quoted below :  "Where it is proposed  to  terminate  the employment  of  a  probationer, whether during or at the end of the period of probation, for any  specific  fault or on account of his unsuitability  for the  service,  the  probationer  shall be  apprised  of  the grounds  of  such proposal and given an opportunity to  show cause  against it, before orders are passed by the authority competent  to  terminate the employment." Immediately  after quoting the Rule, the Court observed:  "Notice to show cause whether   the  employment  of   the  respondent  should   be terminated  was,  by Rule 55 B made obligatory." The  Court, after  considering  that  the State had  complied  with  the requirements  of  Rule 55-B came to the conclusion that  the order  of termination of services of the probationer was not punitive in nature.  In Ranendra Chandra Banerjee vs.  Union

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

of   India  (supra),  the   Court,  while  considering   the provisions  of Rule 55-B, observed as under :  "Therefore in a  case  covered by r.55-B all that is required is that  the defects  noticed  in  the  work  which  make  a  probationer unsuitable  for  retention in the service should be  pointed out  to  him and he should be given an opportunity  to  show cause   against  the  notice,  enabling   him  to  give   an explanation as to the faults pointed out to him and show any reason why the proposal to terminate his services because of his unsuitability should not be given effect to.  If such an opportunity is given to a probationer and his explanation in reply  thereto  is given due consideration, there is in  our opinion sufficient compliance of r.55-B.  Generally speaking the  purpose of a notice under r.55-B is to ascertain, after considering  the  explanation which a probationer may  give, whether  he should be retained or not and in such a case  it would be sufficient compliance with that rule if the grounds on  which  the  probationer  is  considered  unsuitable  for retention  are communicated to him and any explanation given by  him  with  respect to those ground  is  duly  considered before  an  order is passed." ( Emphasis supplied )  In  two other cases, namely, State of Bihar vs.  Gopi Kishore Prasad (supra)  and Samsher Singh vs.  State of Punjab (supra), the question  of  termination of services of a  probationer  was considered  and it was laid down that the form of the  order was  not conclusive and the court could go behind the  order to find out the real foundation of that order.  Radhey Shyam Gupta  vs.  U.P.  State Agro Industries Corporation Ltd.   & Anr.   JT 1998 (8) SC 585, which has been decided by Brother Jagannadha  Rao, J., was also a case where the services of a probationer were terminated.  As we have already seen above, there  has been total non-compliance with the provisions  of Para 541 of the U.P.  Police Regulations and services of the appellant  were  terminated  without ever  issuing  him  any notice  intimating  the grounds on which his  services  were proposed  to  be  terminated nor was  his  explanation  ever obtained.  The services were terminated because he was found involved  in a quarrel between two other Police  Constables. For  the  reasons stated above, the appeal is  allowed,  the impugned  judgment passed by the High Court is set aside and that  of the U.P.  Public Services Tribunal is restored, but without any order as to costs.