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PETITIONER: JARNAIL SINGH & ORS. ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT07/05/1986

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1986 AIR 1626            1986 SCR  (2)1022  1986 SCC  (3) 277        1986 SCALE  (1)1009  CITATOR INFO :  F          1991 SC1490  (6)

ACT:      Constitution of  India, Art. 311(2) - Persons appointed on ad hoc basis - Order of termination challenged as casting stigma on  service career  - Whether  court entitled to lift the veil to find out real basis of termination order.      Articles  14  and  16  -  Protection  under  -  Whether available to  temporary government  servants if  arbitrarily discriminated against.

HEADNOTE:      The appellants  were appointed  as Surveyors on various dates between  December  1976  to  1977  through  employment exchange on  purely temporary  and ad  hoc basis  "up  to  a certain date  or upto  the date  till the regular candidates were recommended  by the Board, whichever was later". One of the terms of employment stipulated that their services could be dispensed with any time without any notice or reason.      The  Government   of  Punjab,   issued  a  Circular  in September 1980 to the effect that the services of the ad hoc employees  shall   be  regularised   on  certain  conditions mentioned therein.  Accordingly,  the  appellants  submitted their requisite  documents to  the authorities concerned for regularisation of  their services.  However, their  services were terminated with effect from 31.1.81 by respondent No.2. The termination order stated that "services of the employees are terminated because these posts are no longer required."      The  appellants  challenged  the  aforesaid  orders  of termination before the High Court in the Writ Petitions. The High Court  dismissed the  writ petitions  summarily on  the ground  that   the  orders   terminating  services   of  the appellants petitioners  did not  attach any  stigma  to  the service career  of any  of the  appellants-petitioners,  but they are made in terms of employment. 1023      In appeal  to the  Supreme Court,  it was  contended on behalf of  the appellants  : (i) that the impugned orders of termination were  based by way of punishment and cast stigma on the  appellants; and (ii) that persons who were recruited later than  the appellants  were allowed  to continue and to remain in  service to  the detriment  of the  constitutional

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rights of  the appellants and therefore, the impugned orders of termination  were discriminatory  infringing Articles  14 and 16  of the  Constitution. On  the other hand Counsel for the respondent  argued :  (i) that the orders of termination have been  made in  accordance with  the terms of the ad hoc appointment of  the appellants  which  provided  that  their services can be terminated at any time without assigning any reason and as such the impugned orders could not be assailed on the  ground of attaching any stigma to the service career of the appellants; and (ii) that where the impugned order is perse innocuous  and it is made in accordance with the terms of the  appointment, the  court should  not delve  into  the circumstances which  were taken  into consideration  by  the authorities concerned in making the order.      Allowing the appeals, ^      HELD: 1.  The impugned  orders of  termination  of  the services  of  the  appellants  are  liable  to  be  quashed, cancelled and  set aside.  Let appropriate writs of mandamus be issued  directing the  respondents, not to give effect to the impugned  orders of  termination of  the services of the appellants. A writ of certiorari be also issued quashing and cancelling the impugned orders of termination of services of the appellants  and  the  appellants  be  deemed  to  be  in service. [1043 C-D] F      2.1 The  mere form  of the  order is  not sufficient to hold that  the order  of termination  was innocuous  and the order of  termination of the services of a probationer or of an  ad   hoc  appointee  is  a  termination  simpliciter  in accordance  with   the  terms  of  the  appointment  without attaching any  stigma to  the employee  concerned. It is the substance of  the order  i.e. the attending circumstances as well as  the basis  of the  order that have to be taken into consideration. [1041 E-F]      2.2  When   an  allegation  is  made  by  the  employee assailing  the   order  of   termination  as  one  based  on misconduct though 1024 couched in  innocuous terms, it is incumbent on the court to lift the  veil and  to see the real circumstances as well as the basis  and foundation  of the  order complained  of.  In other words,  the Court,  in such a case, will lift the veil and will  see whether  the order  was made  on the ground of misconduct, inefficiency or not. [1041 F-G]      Parshotam Lal Dhingra v. Union of India, [1958] S.C.R. 828; State  of Punjab  and Anr.  v. Shri  Sukh Raj  Bahadur, [1968] 3 S.C.R. 234; State of Bihar & Ors. v. Shiva Bhikshuk Misra, [1971] 2 S.C.R. 191; State of Uttar Pradesh & Ors. v. Sughar Singh,  [1974] 2 S.C.R. 335; Shamsher Singh & Anr. v. State of  Punjab, [1975]  1 S.C.R.  814;  Anoop  Jaiswal  v. Government of  India &  Anr., [1984] 2 S.C.R. 369; and Nepal Singh v.  State of  U.P.& Ors., A.I.R. [1985] S.C. 84 relied upon.      In the  instant cases,  though the impugned orders were made under  the camouflage or cloak of orders of termination simpliciter according  to the  terms of  the employment, yet considering the  attendant circumstances  which are basis of the said orders of termination, there is no iota of doubt in inferring that  the orders  of termination  had been made by way of  punishment on  the ground  of misconduct and adverse entry in  service record  without affording  any  reasonable opportunity of  hearing to the appellants whose services are terminated  and   without  complying   with  the   mandatory procedure laid  down in  Art. 311(2)  of the Constitution of India. Thus, the impugned orders terminating the services of

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the appellants  on the  ground that "the posts are no longer required" are made by way of punishment. [1041 B-D; 1042 B]      3.  The  protection  of  Articles  14  and  16  of  the Constitution is  available even  to a  temporary  government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors similarly circumstanced. [1042 G]      In the  instant case, ad hoc services of the appellants have been arbitrarily terminated as no longer required while the  respondents  have  retained  other  Surveyors  who  are juniors to  the appellants.  Therefore, on this ground also, the impugned  order of  termination of  the services  of the appellants are illegal and bad being in contravention of the 1025 fundamental rights  guaranteed under  Articles 14  and 16 of the Constitution of India. [1043 B-C]      State of Uttar Pradesh & Ors. v. Sughar Singh, [1974] 2 S.C.R. 335; and Manager Govt. Branch Press & Anr. v. D.B. Belliappa, [1979] 2 S.C.R. 458 relied upon.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 230 & 231 of 1982.      From the  Judgment and  Order dated  20.2.1981  of  the Punjab &  Haryana High  Court in Civil Writ Petition No. 476 of 1981.      P.P. Rao and C.M. Nayar for the Appellants.      Harbans Lal and R.S. Sodhi for the Respondents.      The Judgment of the Court was delivered by n      RAY, J.  These appeals on Special Leave are against the judgment and  orders passed  by a Division Bench of the High Court of  Punjab &  Haryana dismissing  summarily  the  Writ Applications being Civil Writ Nos. 476 and 484 of 1981 filed by the  appellants on the ground that the orders terminating services of the petitioners did not attach any stigma to the service career  of any  of the  appellants-petitioners,  but they are made in terms of employment.      The  appellants  were  appointed  on  ad-hoc  basis  as Surveyors on various dates between December 1976 to November 1977 through  Employment Exchange. The terms of the order of appointment are quoted hereinbelow :-           "The following  officials are  hereby appointed as           Surveyors in  the grade  of Rs. 140-6-170/8-210/l0           300 upto  28.2.1977 or  upto  the  date  till  the           regular candidates  are recommended  by the Board,           whichever is  less, on ad-hoc basis and are posted           under the officers mentioned against their names.           Their services  can be  dispensed  with  any  time           without any  notice or  reason.  These  candidates           will 1026           have to  produce their  concerned certificates  to           the concerned  officers before  the submission  of           the joining report."      The Government  of Punjab  in order  to regularise  the services of  all the  ad-hoc employees who had completed the minimum period  of one  year’s service  on  September,  1980 issued a  Circular (Annexure  ’B’) to  the effect  that  the services of  the ad-hoc  employees shall  be regularised  on certain conditions  mentioned therein.  On being directed by Respondents Nos.  3 and  4  the  petitioners  submitted  the requisite  documents   to  the   authorities  concerned  for regularisation  of   their  services.  The  service  of  the

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petitioners  was,   however,  terminated  with  effect  from 31.1.81 by  the order  of he  Chief  Conservator  of  Soils, Punjab, Chandigarh, Respondent No.2.      The crucial  question requires  to be  decided  in  the instant appeals is whether the impugned order of termination of services  of the  petitioners can  be  deemed  to  be  an innocuous order  of termination simpliciter according to the terms and  conditions of  the services without attaching any stigma to  any of  the petitioners or it is one in substance and in  fact an  order of  termination by  way of punishment based on  misconduct and  made in violation of the procedure prescribed by  Article 311(2)  of the Constitution of India. In other  words when  the order of termination is challenged as casting  stigma on the service career, the Court can lift the veil in order to find out the real basis of the impugned order even  though on  the face  of it the order in question appears to be innocuous.      In order  to decide  this issue,  it  is  necessary  to consider firstly  the terms  and conditions  of appointment. The appointments of the petitioners are purely temporary and they have  been appointed  on ad-hoc  basis "upto  a certain date  or   upto  date   till  the   regular  candidates  are recommended by  the Board,  whichever is later." It was also provided therein  that their  services can be dispensed with any time  without any  notice  or  reason.  The  petitioners undoubtedly worked  as Surveyors  since the  date  of  their appointment which in some cases in December 1976 and in some cases on different dates between November, 1977 till 31st of January, 1981  when their  services were  terminated. In the order of termination it has 1027 been stated  and "services  of the  employees are terminated with effect  from 31.1.81  because these posts are no longer required". This  order was  made by the Chief Conservator of Soils, Punjab, Respondent No.2.      An  affidavit  has  been  sworn  by  Ashok  Kumar,  the petitioner  No.2,   on  18th   March  1981   along  with  an application for  stay. In  paragraph 3 of the said affidavit it has been specifically stated :-           "(a) That  the petitioner  No.1 was accused of the shortage of  Rs. 7317.50,  vide communication No. 1965 dated 12.11.1979  received   from  Assistant   Soil   Conservation Officer, Budlada, District Bhatinda.           (b) That  the deponent  who is petitioner No.2 was           also accused  of shortfall and a First Information           Report dated  20.8.1980 (No.2715)  has been lodged           against him with Police Station Nahiwala (District           Bhatinda) in respect of the same.           (c) That  Darshan Singh,  the petitioner No.6, was           accused of shortages, vide communication No. l0351           dated 3.10.1980  received from  the Conservator of           Soils, Ferozepur.           (d) That  Satnam Raj,  petitioner  No.8  was  also           accused of misappropriation vide communication No.           10360 dt. 3.10.1980.           (e)  That   Ramesh  Singh,  petitioner  No.12  was           accused of  shortages to the tune of Rs.14,000 and           was informed accordingly by the respondents.           (f) That similar allegations were made against the           remaining petitioners  and they  were  branded  as           incompetent  and  unfit  for  Government  service.           Adverse entries  were  also  made  in  the  Annual           Reports.      In paragraph  4 of  the  said  affidavit  it  has  been further averred that the above facts are true and correct to

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the knowledge  of the deponent. It has also been stated that the 1028 petitioners had  prayed in  the High  Court  to  summon  and scrutinize the  official records  which would  have  clearly indicated that the impugned orders of termination were based by way of punishment and casts stigma on the petitioners.      In the  Counter Affidavit  sworn by  C.M. Sethi,  Chief Conservator  of  Soils,  Punjab,  Chandigarh  on  behalf  of Respondents Nos.  1 to  7 on April 4, 1981 the statements in paragraphs 3,  4 and 5 of the said affidavit have not at all been controverted.  In paragraph  4 of the said affidavit it has been stated that annual/half yearly confidential reports were written on the work and conduct of all ad-hoc employees including the  petitioners in  the department. Therefore, it is not  correct to  say that  they learnt  of their  adverse reports from  the return  filed in  the High  Court for  the first time.      An additional  affidavit verified  by C.M. Sethi, Chief Conservator of  Soils, Respondent  No.2 on  January 15, 1982 was filed.  It has  been stated  in paragraphs 3, 4 and 5 of the said affidavit :           "The claim of the petitioners that their record is           satisfactory and  they have  been performing their           duties efficiently  was denied  in connection with           their claim  for regular  appointment only  and it           was stated strictly in connection with their claim           for regular  appointment that  some of  them  have           adverse      record       and      there       are           shortages/embezzlements and  that the Departmental           selection Committee  constituted by the Government           did  not   recommend  them   as  fit  for  regular           appointment, in  view of which they cannot be made           regular.   me   petitioners   are   quoting   that           information as  a ground  for termination of their           services, out of context, which is not correct and           is denied.           The services of the petitioners were terminated on           the expiry  of existing term of ad-hoc appointment           and not  for the  reason due  to which  they  were           found to be not fit for regular appointment by the           Departmental Selection Committee.           According to the reports of the Field Officers the 1029           petitioners Sarvshri  Natha Singh,  Balbir  Singh,           Ram Chand,  Darshan Singh,  Dalbir Singh, Sat Pal,           Nirmal Singh and Satnam Raj who had earned adverse           reports during  the years  1979-80 and  upto  9/80           were duly  conveyed the  adverse entries.  It  is,           therefore, denied  that the  adverse entries  were           not conveyed to them."      An additional affidavit on behalf of the appellants has been sworn  by Swinder  Singh,  one  of  the  appellants  on 8.8.84. In  paragraph 4  of the  said affidavit  it had been averred that  the following appellants were not communicated any adverse report :- C           i) Jarnail  Singh, Appellant No. 1 in Civil Appeal           No. 230/82.           ii) Ashok  Kumar, Appellant  No. 2 in Civil Appeal           No. 230/82. D           iii) Tajender  Singh, Appellant  No.  2  in  Civil           Appeal No. 231/82.           iv) Nachhattar  Singh, Appellant  No. 4  in  Civil           Appeal No. 231/82. E           v) Bagga  Singh, Appellant  No. 7  in Civil Appeal

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         No.  230/82.           vi) Ramesh Singh, Appellant No. 12 in Civil Appeal           No. 230/82.           vii) Bura  Singh, Appellant  No. 5 in Civil Appeal           No. 231/82.           viii) Joginder  Singh, Appellant  No. 7  in  Civil           Appeal No. 231/82.           It has been stated in paragraph 5 :-           "That the  above names  of the Appellants who were           not communicated  any adverse reports are given in           view of the fact that the Respondent State has 1030           maintained  that   Appellants  were   communicated           adverse reports  in accordance  with the Rules and           they were  not confirmed  in view of these adverse           entries  in   the  Confidential   Rolls   of   the           Appellants ."           It has  been stated  in paragraph  6 of  the  said           affidavit :-           "That, it  is however admitted, that the following           appellants  were   actually  communicated  adverse           reports, as  late and  closer  to  their  date  of           termination of  their services, as is indicated in           the table below :-      Name of the         Date of        Date of      Appellant           Report         Communication of the                                         report 1. Roop Chand            29.1.81        29/30.1.81 2. Nathha Singh          6.10.80        December 1980 3. Dalbir Singh          not known      24.1.1981 4. Darshan Singh         30.10.80       December 1980 5. Satnam Raj            25.10.80       December 1980 6. Nirmal Singh          not known      December 1980 7. Balbir Singh          not known      December 1980 8. Ram Chand Siv         not known      December 1980 9. Savinder Singh        28.10.80       End  of   January’81 10.Sakttar Singh         25.10.80       December 1980                (issued on 3.11.80) 11. Partap Singh         27.10.80       December 1980                (issued on 3.11.80) 12. Sat Pal              25.10.80       2.1.1981                (issued on 2.1.81) 13. Tarsem Lal           24.12.80       End of January ’81."      It  has   been  stated  in  paragraph  7  of  the  said affidavit:-           "That the  following persons  who  were  recruited           around the  same time  and were  taken in  service           also earned adverse reports and faced charges of 1031           embezzlement,  but   have  been   retained  and  A           regularised  in   service  in  preference  to  the           Appellants :-           (1) Gurbux Singh s/o Sohan Singh           (2) Mithoo Ram s/o Muleand Lal           (3) Gurcharan Singh s/o Hazara Singh           (4) Tulsa Singh s/o Surjeet Singh           (5) Vinay kumar Sawhney           (6) Kabul Singh s/o Tara Singh           (7) Daulat Ram s/o Gala Ram           (8) Chander Prakash s/o Sunder Lal           (9) Nirmal Singh s/o Sohan Singh           (l0) Gurbux Singh s/o Geja Singh           (11) Jaswant Singh s/o Chanchal Singh           (12) Ganda Singh s/o Hardit Singh           (13) Boota Singh s/o Anokh Singh

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         (14) Manmohan Sood s/o Arjun Singh."      It  has   been  stated  in  paragraph  8  of  the  said affidavit:- D           "That there  were other persons who were recruited           later than  the Appellants  but continue to remain           in service  to the detriment of the Constitutional           rights of the Appellants."      It  has  been  stated  in  paragraph  10  of  the  said affidavit :           "That the  respondent State  framed false cases of           embezzlement against  some of  the appellants  and           till todate  no proceedings  have been  taken, nor           any inquiries  instituted against,  in  regard  to           those cases".      It  has  been  stated  in  paragraph  13  of  the  said affidavit :-           "That the Screening Committee was presided over by           the Chief Conservator of Soils, Punjab, Chandigarh           Shri  C.M.   Sethi,  under   whose  administrative           control the  Appellants’ Confidential  Record  was           written, and  who has  filed the Counter Affidavit           on behalf  of the  Respondents before this Hon’ble           Court." 1032      In  the  affidavit  verified  by  Pritam  Singh,  Chief Conservator of  Soils, Punjab,  Chandigarh on  22nd November 1984, it has been stated in paragraph 4 that :-           "It is  wrong  that  there  were  adverse  remarks           against Sarvshri  Jarnail Singh,  Ramesh Singh and           Bura Singh  which were required to be communicated           to them.  In respect  of others there were adverse           remarks which  were communicated  through  letters           mentioned below           1) Sh. Ashok Kumar            According to the                                         record available                                         adverse remarks                                         were conveyed by the                                         Conservator of                                         Soils, Ferozepur  to                                         the Divisional  Soil                                         Conservation                                         Officer, Bhatinda                                         vide letter No.                                         11427 dated 28.10.80                                         for its further                                         communication to the                                         official concerned.           (2) Tejinder Singh            Adverse remakrs were                                         conveyed by the                                         Conservator of                                         Soils, Ferozepur  to                                         the Divisional  Soil                                         Conservation                                         Officer, Bhatinda                                         vide No. 11429 dated                                         27.10.80 for further                                         communication to the                                         official concerned.       3) Nachhatar Singh                Adverse remarks were                                         conveyed by the                                         Conservator of                                         Soils, Ferozepur  to                                         the Divisional Soils                                         Conservation                                         Officer, Bhatinda

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                                       vide No.                                         10355 dated  3.10.80                                         for further                                         communication to the                                         official concerned. 1033           4) Joginder Singh   Adverse remarks  were conveyed                               by the  Conservator of  soils,                               Ferozepur  to  the  Divisional                               Soil   Conservation   Officer,                               Bhatinda vide  No. 11813 dated                               4.11.80      for       further                               communication to  the official                               concerned           5) Bagga Singh      Communication reference is not                               available on record.           The services of the petitioners were terminated on           the expiry  of existing term of ad-hoc appointment           and not  for the  reason due  to which  they  were           found to be not fit for regular appointment by the           Departmental Selection Committee."      It has  further been stated in paragraph 6 and 7 of the said affidavit.           "That the  adverse entries  of the  period varying           from 10/80  to 1/81 have been communicated to them           in December,  1980, January,  1981. As this period           is nearer to their date of termination of services           so they  were to  be communicated these remarks at           that time only.           It is  incorrect to  the extent  that the  persons           named below earned adverse remarks and had charges           of shortages/embezzlement.           i) Mithu Ram s/o Mukan Lal           ii) Gurcharan Singh s/o Hazara Singh           iii) Kabul Singh s/o Tara Singh           iv) Daulat Ram s/o Gala Ram           v) Chander Prakash s/o Sunder Lal           vi) Gurbux Singh s/o Geja Singh           vii) Jaswant Singh s/o Chanchal Singh           viii) Ganda Singh s/o Hardit Singh           ix) Boota Singh s/o Anokh Singh           x) Manmohan Sood s/o Arjun Singh 1034           However, in  the case  of remaining persons namely           Sarvshri (i)  Gurbux Singh,  s/o Sohan Singh, (ii)           Tulsa Singh  s/o Surjit  Singh (iii)  Nirmal Singh           s/o Sohan  Singh (iv)  Vinay Kumar  s/o Shri  Ram,           there were  adverse remarks  against these persons           and the  Departmental Selection Committee examined           their record  of service  and found  them fit  for           regular  appointment.  me  Departmental  Selection           Committee was  fully competent to select or reject           any of  the candidates  for regular appointment in           accordance with the Government instructions on the           subject."      It has  also been  stated in  paragraph 8  of the  said affidavit  that  the  Departmental  Selection  Committee  in accordance with  the Government instructions as contained in Government  Notification  dated  28.10.1980  considered  the cases of  all eligible  persons including the appellants and the persons  cited in  the list  for appointment  on regular basis and  the appellants were not found fit for appointment on regular  basis by the Committee. Thus the appellants were afforded  full   opportunity  to  compete  and  as  such  no constitutional right of the appellants was infringed.

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    It thus  appears on  a consideration  of the  averments made in  the affidavit verified on behalf of the petitioners as well  as on  behalf of  the respondents that the impugned order of  termination of service of the petitioners had been made on  the ground  that there  were adverse remarks in the service records  of the  petitioners as  well as  there were serious allegations of embezzlement of funds against some of the petitioners.  It is quite clear that on consideration of all these  adverse entries  in the service record as well as serious allegations  relating to misconduct, the petitioners were  not  considered  fit  by  the  Departmental  Selection Committee to recommend the petitioners for regularisation of their  services   as  Surveyors.   The  impugned  orders  of termination of  services of  the petitioners are really made by  way   of  punishment   and  they   are  not  termination simpliciter according  to terms  of the  appointment without any stigma  as wrongly  stated. It  is indisputed  that  the Respondents Nos.  2 and  3  did  not  follow  the  mandatory procedure prescribed  by Article  311(2) of the Constitution in making the purported orders of termination of services of the petitioners  on the  ground of misconduct and thus there has 1035 been a  patent violation of the rights of the petitioners as provided in  Article 311(2) of the Constitution. There is no room for  any doubt  that the impugned orders of termination of services  of the  petitioners had  been made  by  way  of punishment as  the allegations  of embezzlement  of funds as well as  adverse remarks  in the  service records  of  these petitioners were  the  basis  and  the  foundation  for  not considering the  petitioners to be fit for being regularised in their services in accordance with the Government Circular dated October  28, 1980.  Therefore, it is clear and evident in the  context of these facts and circumstances of the case that the impugned order of termination though couched in the innocuous terms  as being  made in accordance with the terms and conditions of the appointment, yet the impugned order of termination of services of the petitioners were in fact made by way of punishment being based on the misconduct. There is also no  denial  of  the  specific  averments  made  in  the paragraph 8  of the Additional Affidavit sworn by one of the appellants Swinder  Singh on August 8, 1984 that persons who were recruited  later than  the appellants  were allowed  to continue and  to remain  in service  to the detriment of the Constitutional rights  of the appellants. The impugned order of termination  was, therefore,  also assailed on the ground of discrimination,  infringing Articles  14 and  16  of  the Constitution of India.      It is  vehemently urged  on behalf  of the  respondents that the  orders of termination have been made in accordance with the  terms of the ad-hoc appointment of the petitioners which provided  that their services can be terminated at any time without  assigning any  reason and as such the impugned orders could  not be assailed on the ground of attaching any stigma to the service career of the petitioners. It has also been urged  that where the impugned order is perse innocuous and  it  is  made  in  accordance  with  the  terms  of  the appointment,  the   court  should   not   delve   into   the circumstances which  were taken  into consideration  by  the authorities concerned in making the order. In other words it has been urged that In such cases it is not for the Court to enquire into  the basis  of the order and to see if the same was  in   fact  made   by  way  of  punishment  having  evil consequences or not.      The  petitioners   are  undoubtedly   temporary  ad-hoc

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employees having  no right  to the  posts they  hold. In the case of  Parshotam Lal  Dhiogra v.  Union of  India,  [1958] S.C.R. 828 it has been observed by this court as follows :- 1036           "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 carried  with it no evil           consequences and  so Article 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,           in-efficiency or  other disqualification,  then it           is a  punishment and  the requirements  of Article           311 must be complied with....... "      In the  case of State of Punjab & Anr. v. Shri Sukh Raj Bahadur, [1968]3  S.C.R. 234 the following prepositions were laid down  by this  Court  while  considering  the  question whether in  case of  termination of  service of  a temporary servant or a probationer, Article 311(2) of the Constitution would be affected or not. The prepositions are as follows :-           "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           Article 311 of the Constitution.           2. The circumstances preceding or attendant on the           order of  termination 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  in           unexceptionable  form   preceded  by   an  enquiry           launched  by  the  superior  authorities  only  to           ascertain whether the public servant should be 1037           retained in service does not attract the operation           of Article 311 of the Constitution.           5. If  there be  a full-scale departmental enquiry           envisaged by  Article 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."      This decision  was considered by this Court in the case of State  of Bihar  & Ors. v. Shiva Bhikshuk Misra, [1971] 2 S.C.R.  191   in  connection   with  the   reversion  of  an officiating  Subedar   Major  to  his  substantive  post  of Sergeant. In  that case  the respondent held the substantive post of  Sergeant in  the Bihar  Police Force  till July 31, 1946. On  August 1,  1946 he was promoted to the higher post of Subedar.  In January  1948 he  was  further  promoted  to officiate temporarily as Subedar Major. In October 1950, the Commandant of  the Bihar  Military Police, Muzaffarpur wrote to the  Deputy Inspector  of Police, Armed Forces suggesting that he  should be censured for having assaulted an orderly. Thereafter, the  Inspector General  of Police  reverted  the

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respondent to  the post  of Sergeant.  m  e  said  order  of reversion was  challenged and it was held by this Court that :-           "So far  as we  are aware  no such rigid principle           has ever been laid down by this Court that one has           only to  look to  the order  and if  it  does  not           contain any  imputation  of  misconduct  of  words           attaching a  stigma to the character or reputation           of a  Government Officer  it must  be held to have           been made in the ordinary course of administrative           routine and  the court is debarred from looking at           all  the   attendant  circumstances   to  discover           whether  the   order  had  been  made  by  way  of           punishment.  The   form  of   the  order   is  not           conclusive of  its true nature and it might merely           be a  cloak or  camouflage for an order founded on           misconduct. It  may be  that  an  order  which  is           innocuous on  the face  and does  not contain  any           imputation of  misconduct is  a circumstance  or a           piece of  evidence for finding whether it was made           by way of punishment or 1038           administrative  routine.   But  the   entirety  of           circumstances  preceding   or  attendant   on  the           impugned order must be examined and the overriding           test will  always be  whether the  misconduct is a           mere motive  or is  the  very  foundation  of  the           order.      The order  of reversion  was  held  to  be  by  way  of punishment and as such it was set aside.      In the  case of State of Uttar Pradesh & Ors. v. Sughar Singh, [1974] 2 S.C.R. 335 a permanent Head Constable in the U.P. Police  Force  was  appointed  as  officiating  Platoon Commander in  the combined  cadre of  Sub  Inspector,  Armed Police and  Platoon commander.  He was subsequently reverted to the  substantive post  of Head  Constable in 1968. At the time of  reversion he  was one  among a  group of  about 200 officers most  of whom  were junior  to him.  Two  questions arose, namely  whether the  order of  reversion is attendant with any  stigma and  secondly whether  there has  been  any discrimination  violating   Article  14   and  16   of   the Constitution. It  was held  that  so  far  as  reversion  is concerned, the  order of  reversion did not cast any stigma, not it  has any  evil consequences as the respondent neither lost his  seniority in  the substantive  rank, nor there has been any  forfeiture of  his pay  or allowances. It was also held that  the order  was liable to be quashed on the ground of contravention  of Article  14 and  16 of the Constitution inasmuch as  while the  respondent had  been  reverted,  his juniors were  allowed to  retain their present status as Sub Inspector and they have not been reverted to the substantive post of  Head Constable.  It was further held that there was no administrative  reason for  this reversion,  so the order was held bad.      The question  whether the order terminating the service of a  probationer made according to the terms of appointment can  never   amount  to   punishment  in   the   facts   and circumstances of  the case  was considered  by a  Bench of 7 Judges of this Court in the case of Shamsher Singh & Anr. v. State of  Punjab, [1975]  1 S.C.R.  814. In  that  case  the services of two Judicial Officers who were on probation were terminated by the Government of Punjab on the recommendation of the  High Court  under Rule  7(3) in  Part of  the Punjab Civil Services 1039

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(Judicial Branch) Rules 1951 as amended. The services of the A probationers  were terminated without saying anything more in the  order of  termination. This  was challenged  on  the ground that  though the  order on  the face  of it  did  not attach any stigma, yet the attendant circumstances which led to passing  of the order if considered then the orders would amount to  have been  made by  way of  punishment  violating Article 311  of  the  Constitution.  It  has  been  observed relying on  the observations  of this Court in Parshotam Lal Dhingra v. Union of India, by A.N. Ray, C.J. as follows :-           "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 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 Constitution."      This decision  was followed and relied upon in the case of Anoop  Jaiswal v.  Government of  India &  Anr., [1984] 2 S.C.R. 369.  In that  case the  appellant being selected for appointment in  the I.P.S.  were undergoing  training  as  a probationer. On  a particular  day all  the trainees arrived late at  the place where P.T./unarmed combat practice was to be conducted,  although prior intimation was sent to them in this regard.  This delay was considered as an incident which called for  an enquiry.  The appellant  was considered to be one of  the ring  leaders who was responsible for the delay. Explanation was  called for  from all  the probationers. The appellant in  his explanation  sincerely regretted the lapse while denying  the charge of instigating others in reporting late. After receiving the explanations, all the probationers including the  appellant were  individually  interviewed  in order  to   ascertain  the   facts.  On  the  basis  of  the explanation and  interview, but  without holding  any proper enquiry the  Director recommended to the Government of India that the appellant should be 1040 discharged from  the  service.  The  Government  accordingly passed an  order of discharge of the appellant on the ground of unsuitability  for being a member of the I.P.S. mis order was challenged  in the  Writ Petition.  It has  been held as follows:-           "Where  the   form  of   the  order  is  merely  a           camouflage  for   an  order   of  dismissaly   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."      The order  was held  to be  bad as  it was  made on the ground   of    misconduct   without   affording   reasonable opportunity to  the appellant  to defend himself as provided under Article 311(2) of the Constitution.      In the  case of  Nepal Singh  v. State  of U.P. & Ors., A.I.R. 1985  S.C. 84  the service  of  the  appellant  Nepal

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Singh,  who  was  employed  in  temporary  capacity  as  Sub Inspector of  Police, was  terminated by  an order of Deputy Inspector General  of Police,  Bareilly Range  and the order merely  stated   that  the  appellant’s  services  were  not required any  more and  were terminated with one month’s pay in lieu  of notice.  This order was challenged on the ground that Lt  amounted to  punishment and since no opportunity of hearing,  as   provided  in   the  Article   311(2)  of  the Constitution, was afforded, the impugned order was liable to be quashed  and set  aside. It  transpired at  the  time  of hearing that a disciplinary proceeding was initiated against the appellant  on the  ground that  he contracted the second marriage during the life time of his first wife and this act was  done   without  obtaining   prior  permission   of  the Government. mis  disciplinary proceeding,  however, was  not proceeded with.  Thereafter the  Superintendent  of  Police, Shahjahanpur drew  up a  list to  the effect  that he  was a corrupt  officer   and  he  was  not  straight-forward.  The impugned order  was made  thereafter. It was held that where allegations of misconduct were levelled against a Government 1041 servant and it was a case where provisions of Article 311(2) of the  Constitution should  apply, it  was not  open to the competent authority  to  take  the  view  that  holding  the enquiry contemplated  by that  clause would be a bother or a nuisance and  that, therefore,  it was entitled to avoid the mandate of  that provision  and resort to the guise of an ex facie innocuous termination order.      In  the   instant  case   as  we  have  stated  already hereinbefore that  though the  impugned order was made under the  camouflage   or  cloak   of  an  order  of  termination simpliciter according  to the  terms of  the employment, yet considering the  attendant circumstances which are the basis of the  said order of termination, there is no iota of doubt in inferring  that the order of termination had been made by way of  punishment on  the ground  of misconduct and adverse entry in  service record  without affording  any  reasonable opportunity of hearing to the petitioners whose services are terminated  and   without  complying   with  the   mandatory procedure laid down in Article 311(2) of the Constitution of India.      The position  is now  well settled on a conspectuous of the decisions referred to hereinbefore that the mere form of the order  is not  sufficient to  hold  that  the  order  of termination was  innocuous and  the order  of termination of the services of a probationer or of an ad-hoc appointee is a termination simpliciter  in accordance with the terms of the appointment without  attaching any  stigma to  the  employee concerned. It  is  the  substance  of  the  order  i.e.  the attending circumstances  as well  as the  basis of the order that have  to be  taken into  consideration. In other words, when an  allegation is  made by  the employee  assailing the order of  termination as  one based  on  misconduct,  though couched in  innocuous terms, it is incumbent on the court to lift the  veil and  to see the real circumstances as well as the basis  and foundation  of the  order complained  of.  In other words, the Court, in such case, will lift the veil and will see  whether the  order  was  made  on  the  ground  of misconduct inefficiency  or not. In the instant case we have already referred  to as well as quoted the relevant portions of the  averments made  on behalf of the State respondent in their several affidavits alleging serious misconduct against the petitioners  and also the adverse entries in the service records of these petitioners, which 1042

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were taken  into consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following  the procedure  provided in Article 311(2) of the  Constitution of India, while considering the fitness and  suitability  of  the  appellants  for  the  purpose  of regularising  their   services  in   accordance   with   the Government Circular  made in October, 1980. mus the impugned orders terminating  the services  of the  appellants on  the ground that  "the posts  are no longer required" are made by way of punishment.      It also  appears on  a consideration  of the  averments made in paragraphs 7 and 8 of the Additional Affidavit sworn by one  of the  appellants Swinder  Singh on August 8, 1984, which has  not been  controverted at  all by the respondent, that the  respondents though  terminated the services of the petitioners on  the ground  that "these  posts are no longer required" have  retained and  regularised the service of ad- hoc employees  mentioned in  paragraph 7  as well  as ad-hoc Surveyors who  were recruited  later in  the  said  post  of Surveyors to  the prejudice of the rights of the appellants, thereby violating  the salutary  principle of  equality  and non-arbitrariness  and   want  of   discrimination  and   as enshrined in  Articles 14  and 16  of  the  Constitution  of India. It  is  pertinent  to  refer  here  to  the  decision rendered by  this Court  in Sughar Singh’s case where it had been  held   that  the  order  of  reversion  reverting  the respondent from  his officiating  appointment to the post of Platoon Commander  to the  post of  permanent Head Constable while retaining 200 other Head Constables who were junior to him in  the officiating  higher posts  of Platoon Commanders was discriminatory  and arbitrary  being in contravention of the Articles 14 and 16 of the Constitution.      Similar observations  have been  made in  the  case  of Manager Govt. Branch Press & Anr. v. D.B. & Belliappa [1979] 2 S.C.R.  458. It  has been  held  that  the  protection  of Articles 14  and 16  of the  Constitution will  be available even to  a temporary  Government  servant  if  he  has  been arbitrarily discriminated  against and singled out for harsh treatment   In   preference   to   his   juniors   similarly circumstanced. In  that case  the service  of  Belliappa,  a temporary Class IV employee was terminated without assigning any reason  although in accordance with he conditions of his service, three other employees similarly situated, junior to Belliappa in the said 1043 temporary cadre, were retained. The order of termination was held to  be bad  as it offended the equity clause in Article 14 and 16 of the Constitution.      In the  instant case, ad-hoc services of the appellants have been arbitrarily terminated as no longer required while the  respondents  have  retained  other  Surveyors  who  are juniors to  the appellants.  Therefore, on this ground also, the impugned  order of  termination of  the services  of the appellants are illegal and bad being in contravention of the Fundamental rights  guaranteed under  Articles 14  and 16 of the Constitution of India.      In the  premises  aforesaid,  the  impugned  orders  of termination of  the services of the appellants are liable to be quashed,  cancelled and  set aside. Let appropriate writs of mandamus be issued directing the respondents, not to give effect to the impugned orders of termination of the services of the  appellants. Let  a  writ  of  certiorari  be  issued quashing and  cancelling the  impugned orders of termination of services  of the  appellants and the appellants be deemed to be in service.

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    In the facts and circumstances of the case, the appeals are allowed with costs assessed at Rs. 2,000. M.L.A.                                      Appeals allowed. 1044