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PETITIONER: NEPAL SINGH

       Vs.

RESPONDENT: STATE OF U.P. AND ORS.

DATE OF JUDGMENT15/04/1980

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. SARKARIA, RANJIT SINGH

CITATION:  1980 AIR 1459            1980 SCR  (3) 613  1980 SCC  (3) 288

ACT:      Termination  Simpliciter-An   order   terminating   the services of  a temporary  Government  servant  and  ex-facie innocuous in  that it  does  not  cast  any  stigma  on  the Government servant  or visits  him with  penal  consequences amounts to termination simpliciter-Order does not contravene Article 311 (2) of the Constitution of India 1950.

HEADNOTE:      The appellant  was a temporary sub-inspector of Police. While he  was posted  at Shahjahanpur  the Superintendent of Police,  Shahjahanpur   commenced  disciplinary  proceedings against him  on the  charge that  he had violated Rule 29 of the U.P.  Government Servants Conduct Rules, 1956 in as much as  without  prior  permission  of  the  Government  he  had contracted a  second marriage  in November,  1964, while his first wife  was alive.  At the stage of evidence, the Deputy Inspector General of Police, Bareilly made an order on March 12, 1970 quashing the disciplinary proceedings on the ground that the offence has been committed at Pithoragarh, situated in a  different police range, and therefore, the proceedings taken against the appellant were incompetent.      Meanwhile, on  March 8,  1970, the Inspector General of Police,  Uttar   Pradesh,  had   issued  a   letter  to  all Superintendents of  Police in  the State  directing them  to submit  a   list  of  Sub-inspectors  whose  reputation  and integrity were  very low  or who  were generally involved in scandalous  conduct,  drinking,  immorality  or  other  acts injurious to  the reputation  of the  Police Service  or who were  involved  encouraging  crime.  The  Superintendent  of Police, Shahjahanpur  included the  name of the appellant in the list  submitted by  him. On  April  27,  1970,  the  Dy. Inspector General  of Police  made an  order terminating the services of the appellant, reciting that the services of the appellant  "are  no  more  required  and  that  he  will  be considered to have ceased to be in service......"      The appellant  filed a  Writ Petition against the order terminating  his   services  and   claimed  that  the  order contravened Article  311(2) of  the Constitution inasmuch as it was  an order  imposing the  punishment of  dismissal  or removal  from  service  without  satisfying  the  conditions prescribed therein.  Allegations of malafide were also made.

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The Writ  Petition was  dismissed. An appeal to the Division Bench was also dismissed. Hence the appeal by special leave.      Dismissing the appeal, the Court. ^      HELD:  1.   It  is   now  settled  law  that  an  order terminating the  services of  a temporary Government servant and ex  facie innocuous  in that it does not cast any stigma on  the   Government  servant   or  visits  him  with  penal consequences must  be regarded  as effecting  a  termination simpliciter, but  if  it  is  discovered  on  the  basis  of material adduced that although innocent in its 614 terms the  order was passed in fact with a view to punishing the Government  servant, it is a punitive order which can be passed  only   after  complying  with  Art.  311(2)  of  the Constitution. [615H, 616A-B]      2. The  question which  calls for  determination in all such cases  is  whether  the  facts  satisfy  the  criterion repeatedly laid  down by  this Court  that an  order is  not passed by  way of  punishment, and  is merely  an  order  of termination  simpliciter,   if  the   material  against  the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order. The application of the test is not always easy. In each case it is  necessary  to  examine  the  entire  range  of  facts carefully and  consider whether  in the light of those facts the superior  authority intended  to punish  the  Government servant or,  having regard  to his  character,  conduct  and suitability in  relation to  the post  held by  him  it  was intended simply  to terminate  his services. The function of the Court  is  to  discover  the  nature  of  the  order  by attempting   to    ascertain   what   was   the   motivating consideration in  the mind  of the  authority which prompted the order. [616B-E]      In the  instant case: (a) the appellant was a temporary Government servant,  and the  question whether  he should be retained in service was a matter which arose directly during the drive  instituted by  the Inspector General of Police in March  1970   for  weeding  out  Police  Officers  who  were unsuitable or  unfit to  be continued  in service;  (b)  the material which  the Superintendent  of Police considered was sufficient to lead to the conclusion that the appellant, who was a  temporary Government  servant, was  not suitable  for being retained  in service-his general character and conduct led to  that impression  and there  was nothing to show that the impugned  order was  made by  way of punishment; (c) the circumstance  that   a  disciplinary   proceeding  had  been instituted against  him earlier  does not  in itself lead to the  inference  that  the  impugned  order  was  by  way  of punishment, and  (d) the  impugned order was not intended by way of punishment. [616E-G]      State of  Maharashtra v.  Veerappa R.  Saboji and  Anr. [1980] 1 S.C.R. 551 A.I.R. 1980 SC 42; applied.      State of  Bihar and  Ors.  v.  Shiva  Bhikshuk  Mishra, [1971] 2  S.C.R. 191;  State of  U.P. & Ors. v. Sughar Singh [1974] 2  S.C.R. 335  and Regional  Manager &  Anr. v. Pawan Kumar Dubey; [1976] 3 S.C.R. 540; distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 621 of 1973.      From the  Judgment and  Order dated  13-3-1973  of  the Allahabad High Court in Spl. Appeal No. 9/73).

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    V. J. Francis for the Appellant.      O. P. Rana for the Respondent.      The Judgment of the Court was delivered by      PATHAK, J. This appeal by special leave arises out of a writ petition  filed by  a police  officer aggrieved  by the termination of his services.      The appellant  was a temporary Sub-Inspector of Police. He was  posted at  Shahajahanpur in 1969. The Superintendent of Police, 615 Shahjanpur commenced  disciplinary proceedings  against  the appellant on  the charge that he had violated Rule 29 of the U.P. Government  Servants Conduct  Rules, 1956  inasmuch  as without prior permission of the Government he had contracted a second  marriage in  November, 1964,  while his first wife was alive.  The charge  was denied  by  the  appellant.  The Superintendent of  Police recorded  evidence.  But  at  this stage the  Deputy Inspector  General of Police Bareilly made an  order  on  March  12,  1970  quashing  the  disciplinary proceedings  on   the  ground  that  the  offence  had  been committed at  Pithoragarh, situated  in a  different  police range, and  therefore  the  proceedings  taken  against  the appellant were incompetent.      Meanwhile, on  March 8,  1970, the Inspector General of Police,  Uttar   Pradesh,  had   issued  a   letter  to  all Superintendents of  Police in  the State  directing them  to submit  a   list  of  Sub-Inspectors  whose  reputation  and integrity were  very low  or who  were generally involved in scandalous  conduct,  drinking,  immorality  or  other  acts injurious to  the reputation  of the  Police service  or who were involved  in encouraging  crime. The  Superintendent of Police, Shahjahanpur  included the  name of the appellant in the list  submitted by  him. On  April 27,  1970, the Deputy Inspector General  of Police  made an  order terminating the services of  the  appellant.  The  order  recites  that  the services of the appellant, "are no more required and that he will be considered to have ceased to be in service ....."      The appellant  filed a  writ petition against the order terminating  his   services,  and  claimed  that  the  order contravened Article  311(2) of  the Constitution inasmuch as it was  an order  imposing the  punishment of  dismissal  or removal  from  service  without  satisfying  the  conditions prescribed in  that provision.  It was also alleged that the order was  passed mala fide. The writ petition was dismissed by a  learned Single  Judge of  the Allahabad High Court. An appeal was  dismissed by  a Division Bench of the High Court on March 13, 1973.      In the  appeal before us, it is urged for the appellant that the  High Court  was wrong  in holding  that the  order terminating  the  appellant’s  services  was  not  an  order imposing a  punishment. We  are referred to the disciplinary proceedings instituted  against the appellant in 1969 and it is submitted that although the order of termination does not refer to those proceedings and the charge on which they were commenced, the  appellant’s services  were terminated with a view to punish him for contracting a second marriage without prior permission  of the  Government. We  are satisfied that the contention  is without  substance. It is now settled law that an order terminating the 616 services of  a temporary  Government servant  and  ex  facie innocuous in  that  it  does  not  cast  my  stigma  on  the Government servant  or visits  him with  penal  consequences must be regarded as effecting a termination simpliciter, but if it  is discovered  on the  basis of material adduced that

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although innocent  in its terms the order was passed in fact with a  view to  punishing the  Government servant,  it is a punitive order which can be passed only after complying with Article 311(2) of the Constitution. The scope of the enquiry called for  in such a case has been outlined by one of us in State of  Maharashtra v. Veerappa R. Saboji and another. But the question which calls for determination in all such cases is whether  the facts  satisfy the criterion repeatedly laid down by  this Court  that an  order is  not passed by way of punishment,  and   is  merely   an  order   of   termination simpliciter, if  the material against the Government servant on which  the superior  authority has  acted constitutes the motive and not the foundation for the order. The application of the test is not always easy. In each case it is necessary to examine  the entire range of facts carefully and consider whether in  the light  of those facts the superior authority intended to  punish the Government servant or, having regard to his character, conduct and suitability in relation to the post held  by him  it was  intended simply  to terminate his services. The  function of  the court  is  to  discover  the nature of  the order by attempting to ascertain what was the motivating consideration  in the mind of the authority which prompted the order.      In the  present appeal,  the appellant  was a temporary Government  servant.  The  question  whether  he  should  be retained in service was a matter which arose directly during the drive  instituted by  the Inspector General of Police in March,  1970  for  weeding  out  police  officers  who  were unsuitable  or   unfit  to  be  continued  in  service.  The Superintendent of  Police prepared  a list of Sub-Inspectors functioning within  his jurisdiction,  and included the name of the  appellant  in  that  list.  The  material  which  he considered was sufficient to lead to the conclusion that the appellant, who  was a  temporary Government servant, was not suitable  for   being  retained   in  service.  His  general character and  conduct led  to  that  impression.  There  is nothing to  show that  the impugned order was made by way of punishment. The  circumstance that a disciplinary proceeding had been  instituted against  him earlier does not in itself lead to  the inference that the impugned order was by way of punishment. As  we have observed, that is a conclusion which must follow  from the nature of the intent behind the order. That intention can be discovered and proved, like any other 617 fact, from  the evidence  on the record. In this case, it is not proved  that the  impugned order  was intended by way of punishment.      Learned counsel  for the  appellant relies  on State of Bihar &  Ors. v.  Shiva Bhikshuk  Mishra and  State of Uttar Pradesh & Ors. v. Sugher Singh. Both were cases of permanent Government servants.  And as regards Regional Manager & Anr. v. Pawan Kumar Dubey, to which also reference has been made, that was  a case  where on  the facts  the Court  found that there  were  no  administrative  reasons  for  the  impugned reversion.      The  appeal   fails  and   is  dismissed,  but  in  the circumstances there is no order as to costs. S. R.                                      Appeal dismissed. 618