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PETITIONER: NEPAL SINGH

       Vs.

RESPONDENT: STATE OF U. P. ORS.

DATE OF JUDGMENT09/11/1984

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. MADON, D.P. THAKKAR, M.P. (J)

CITATION:  1985 AIR   84            1985 SCR  (2)   1  1985 SCC  (1)  56        1984 SCALE  (2)693  CITATOR INFO :  R          1986 SC1626  (30)  RF         1991 SC1490  (3)  RF         1992 SC 496  (26)

ACT:      Public Service-Termination  of Service  of a  temporary government servant  on  the  allegation  of  misconduct  and corruption without following provisions of Article 311(2) of the Constitution is void and violative of Articles 14 and 16 Competent  Authorities  cannot  circumvent  the  mandate  of Article 311(2) and resort to the guise of ex-facie innocuous termination order-U.P.  Government  Servants  Conduct  Rules 1956, Rule  29 read  with Constitution  of  India,  Articles 14,16 and 311 (2). D

HEADNOTE:      On an  allegation that  the appellant, a temporary Sub- inspector  of   Police,  while  posted  at  Pithoragarh  had contracted in  November 1964  a second  marriage, while  his first wife was alive, without obtaining the prior permission of the  Government and  in violation of Rule 29 of the U. P. Government Servants’  Conduct Rules, 1956 the Superintendent of  Police,  Shahjahanpur  initiated  in  1968  disciplinary proceedings under section 7 of the Police Act against him. 1 However, after  the evidence was closed in January 1970, the Superintendent  noticed   that  his   action   was   without jurisdiction  and   pointed  out  the  same  lo  the  Deputy Inspector General of Police, Bareilly Range, who ordered the quashing of the disciplinary proceedings on March 12, 1970.      About this  time the Inspector General of Police, Uttar Pradesh issued  a circular  letter to  the Superintendent of Police throughout  the State requiring them to submit a list of Sub-Inspectors  who fell  in any  of the  following three categories:  1.  Whose reputation and integrity is very low and/or  2.  Who are  generally involved in scandals, like drinking,      immorality, etc.  which blackens  the face of the U. P.      Police and/or  3.  Everywhere  they   are  a   big  problem  because  they      encourage   gambling,    excise   offences,   brothels,      criminals, etc.

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    The Superintendent  of Police,  Shahjahanpur drew  up a list of such Sub-Inspectors on February S, 1970 and directed them to  appear  before  the  Deputy  Inspector  General  of Police, Bareilly Range on February 10, 1970 during his 2 inspection of  the district.  The list  included the name of the appellant with the note:         "A corrupt  officer, who  is not  straight  forward.      Married two  wives against  Government Servants Conduct      Rules. Does not do his duty sincerely. Wherever he goes      creates problem".      Thereupon, on  April 27,  1970,  the  Deputy  Inspector General of  Police, Bareilly Range, made an order purporting to be  under the  rules published  by Notification  No. 230/ 1953 dated  January 30,  1953 that  the appellant’s services were not  required any  more and  were terminated  with  one month’s pay in lieu of notice.      The appellant  thereupon filed  a Writ  Petition in the High Court against the order terminating his services and on November 17,  1972 a  learned Single  Judge of the Allahabad High Court  dismissed the  Writ Petition  holding  that  the order of  termination was  passed bonafide,  that it  was an order  of  termination  simpliciter  and  that  it  did  not constitute the  removal of  the appellant  from service.  On appeal filed  by the  appellant that  vice was endorsed by a Division Bench  of the  High Court by its judgment and order dated March  13, 1973  and the  appeal was dismissed holding that the impugned order was ex-facie innocuous and could not be said  to cast  any stigma  or be regarded as imposing the punishment of  dismissal or  removal. Hence  the  appeal  by Special Leave of the Court.      Allowing the appeal, the Court ^      HELD; 1.  It is  well settled  that in  dealing with  a government  servant   the  State   must   conform   to   the constitutional requirements  of Articles  14 and  16 of  the Constitution. An  arbitrary exercise  of power  by the State violates these  constitutional guarantees, for a fundamental implication in  the guarantee  of equality and of protection against discrimination  is that fair and just treatment will be accorded  to all,  whether individually  or jointly  as a class. When  a government  servant satisfies the Court prima facie  that  an  order  terminating  his  services  violates Articles 14  and 16  the competent  authority must discharge the burden  of showing  that  the  power  to  terminate  the services was  exercised honestly and in good faith, on valid considerations fairly and without discrimination. [S-E-G]      2. Where  the  services  of  a  government  servant  on temporary appointment  arc terminated on the ground that his reputation for corruption makes him unsuitable for retention in the  service, the reputation for corrupt behavior must be based on  something more  than a mere allegation. The State, and 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  found  in definable material, objectively assessed and relevant to the ground on which the termination is effected. [6-C-E]      In the  instant case,  the Superintendent of Police did not apply  his mind  to the  requirements of  the case.  The Superintendent of Police has noted that the 3 appellant created  problems wherever  he went, but it is not disclosed in  the   affidavits what  those problems were and that the  problems were of the nature specifically indicated by the  circular issued  by the Inspector General of Police.

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The  other   grounds  mentioned   in  the   report  of   the Superintendent of Police are equally vague and unspecific. [ 6A-B]      3. Where  allegations of misconduct are leveled against a Government  Servant, and it is : case where the provisions of Article  311 (2) of the Constitution should be applied(l, it is  not open  to the competent authority to take the view that holding the enquiry contemplated by the clause would be a bother  or a nuisance and that therefore it is entitled to avoid the  mandate of that provision and resort to the guise of an  ex-facie innocuous  termination order. The Court will view with  great disfavour  any attempt  to  circumvent  the constitutional provision  of Article 311 (2) in a case where that provision comes into play.                                                [6-G-H, 7A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 621 of 1975      Appeal by  Special leave  from the  Judgment and  order dated the  13th March,  1973 of  the Allahabad High Court in Special Appeal No.9 of 1973.      R.K Garg and M. Qamaruddin for the Appellant.      Prithvi Raj and Mrs. Shobha Dikshit for the Respondent.      The Judgment of the Court WCIS delivered by      PATHAK, J  This appeal  by special  leave  is  directed against the  judgment and  order of the Allahabad High Court dismissing the  appellant’s writ  petition against  an order terminating his services.      The appellant, Nepal Singh, was employed in a temporary capacity as  Sub-Inspector of  Police.  He  was  serving  at Shahjahanpur in  1968 when  the  Superintendent  of  Police, Shahjahanpur initiated disciplinary proceedings under S.7 of the Police  Act against  him on the charge that while posted at Pithoragarh  he had,  in  November,  1964,  contracted  a second marriage  while his first wife was alive, and as this was done  without obtaining  the  prior  permission  of  the Government the  appellant had  violated Rule  29 of the U.P. Government Servants’  Conduct  Rules,  1956.  The  appellant filed a  reply and  denied the charge. The oral testimony of about twelve  witnesses for  the prosecution  and an  almost equal number  for the  defence was recorded. But in January, 1970 the Superintendent 4 of  Police,  Shahjahanpur  wrote  to  the  Deputy  Inspector General of  Police, Bareilly  Range that  as the act alleged against the appellant related to the district of Pithoragarh the disciplinary  proceedings taken  by him would be without jurisdiction unless there was an existing order transferring the   proceedings    from   Pithoragarh   to   Shahjahanpur. Accordingly, on March 12,1 970, the Deputy Inspector General of Police,  Bareilly  Range  ordered  the  quashing  of  the disciplinary proceedings.  It appears that no further action was taken and the proceedings were dropped.      About this  time the Inspector General of Police, Uttar Pradesh issued  a circular  letter to the Superintendents of Police throughout  the State requiring them to submit a list of Sub  Inspector who  fell in  any of  the following  three categories:      "1.  Whose reputation and integrity is very low and/or      2.   Who  are  generally  involved  in  scandals,  like           drinking, immorality  etc. which blackens the face           of the U.P. Police’ and/or.

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    3.   Everywhere they  are a  big problem  because  they           encourage  gambling,  excise  offences,  brothels,           criminals, etc.      The Superintendent  of Police,  Shahjahanpur drew  up a list of such Sub-Inspectors on February S, 1970 and directed them to  appear  before  the  Deputy  Inspector  General  of Police, Bareilly  Range on  February  10,  1970  during  his inspection of  the district.  The list  included the name of the appellant with the note;           "A corrupt  officer, who  is not straight forward.      Married two  wives against  Government Servants Conduct      Rules. ’  Does not  do his  duty sincerely. Wherever he      goes creates problem."      Thereupon,  on   April  27,1970  the  Deputy  Inspector General of  Police, Bareilly Range, made an order purporting to be  under the rules published by Notification No. 230/II- B-1953 dated  January 30, 1953 that the appellant’s services were not  required any  more and  were terminated  with  one month’s pay in lieu of notice.      The appellant  filed a  writ petition in the High Court against 5 the order terminating his services and on November 17,1972 a learned A Single Judge of the Allahabad High Court dismissed the writ  petition holding that the order of termination was passed  bonafide   that  it  was  an  order  of  termination simpliciter, and  that it  did not constitute the removal of the appellant  from service.  That  view  was  endorsed,  on appeal filed  by the  appellant, by  a Division Bench of the High Court  by its  judgment and  order dated March 13,1973. The learned  judges have  taken the  view that  the case  in respect of  the appellant was covered by the first and third of the  three categories enumerated earlier, that is to say, his integrity  was low  and he  was a  problem officer ’ who encouraged gambling,  excise offences,  brothels, criminals, etc." The  allegation that  he had married two wives against the Government  Servants Conduct  Rules, 1956,  the  learned Judges said,  did not  bring him  within any  of  the  three categories as,  in their  view, the  second marriage without prior permission  of the  Government gave  rise merely  to a tinkle charge.  In view  of the  opinion that  the  impugned order was  ex facie  innocuous and could not be said to cast any stigma  or be  regarded as  imposing the  punishment  of dismissal or  removal,  the  learned  Judges  dismissed  the appeal.      It seems  to us  that the  High  Court  has  failed  to consider the  true  content  of  the  case  set  up  by  the appellant. The entire thrust of the appellant’s case is that in  terminating   the  appellant’s  Services  the  competent authority treated  him unfairly  and arbitrarily. It is well settled that  in dealing with a Government servant the state must conform  to the constitutional requirements of Arts. 14 and 16  of the  Constitution. An arbitrary exercise of power by the State violates those constitutional guarantees, for a fundamental implication  in the guarantee of equality and of protection against  discrimination is  that  fair  and  just treatment will  be accorded  to all, whether individually or jointly as  a class. When a Government servant satisfies the Court prima  facie that  an order  terminating his  services violates Arts.  14 and  16,  the  competent  authority  must discharge the  burden of showing that the power to terminate the services  was exercised  honestly and  in good faith, on valid considerations fairly and without discrimination.      The High  Court has  observed that within the framework of the  three categories  defined in the Inspector General’s

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circular  the   allegation  of  a  second  marriage  by  the appellant was  of no  significance, and  that the  principal intent in terminating the appellant’s. 6 services was  to rid the State of an unsuitable officer. The Superintendent  of  Police  has  noted  that  the  appellant created problems  wherever he  went, but it is not disclosed in the  affidavits what  were those  "problems". It  is  not shown that  the problems  were of  the  nature  specifically indicated by the circular issued by the Inspector General of Police We are unable to conclude from the material before us that the  Superintendent of  Police applied  his mind to the requirements of the case.      The Superintendent  of Police  has also  commented that the  appellant   was  a   corrupt  officer   who   was   not straightforward (whatever  that might mean). On that we have this to say. Where the a services of a Government servant on temporary appointment  are terminated on the ground that his reputation for corruption makes him unsuitable for retention in the  service, the reputation for corrupt behavior must be based on  something more  than a  mere allegation. The other grounds mentioned  in the  report of  the  Superintendent of Police, which  impressed the  High Court, appear to us to be equally vague and unspecific. The State, and 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  in  definable  material, objectively assessed and relevant to the ground on which the termination is effected.      Proceeding from  there, we  may  advert  to  a  further aspect of the case. It would seem that the dominating factor which influenced the mind of the Deputy Inspector General of Police was  the allegation  that the appellant had married a second wife  against the  Government Servants’ Conduct Rules it is  clear that a full-fledged enquiry was instituted into the matter,  evidence was  recorded but  before any findings could be  rendered the  enquiry  was  dropped  for  want  of jurisdiction. No  attempt was  made thereafter  to institute proper  enquiry   by  the   appropriate  authority.  In  the circumstances, it  was not  open to  the  Superintendent  of Police to  mention in  his report,  as a  statement of fact, that the  appellant had  married a  second time  against the Government Servants’ Conduct Rules. With the dropping of the enquiry the  allegation remained  unverified. We may observe that where  allegations of misconduct are levelled against a Government servant, and it is a case where the provisions of Art. 311(2) of the Constitution should be applied, it is 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 7 that therefore  it is  entitled to avoid the mandate of that provision and  resort to  the guise of an ex facie innocuous termination order. A The Court will view with great disfavor any attempt  to circumvent  the constitutional  provision of Art.311 (2)in a case where that provision comes into play.      For all  the aforesaid reasons, we are unable to uphold the judgment  and order of the High Court, and in the result the appeal must he allowed.      The appeal  is allowed  and the  order dated  April 27, 1970  of  the  Deputy  Inspector  General  of  Police,  U.P. Bareilly Circle  is quashed. The appellant is entitled to be treated as  continuing in  service without  interruption. It will be  open to  the authorities  to take fresh proceedings against the  appellant in  accordance with law. It will also

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be open  to them  to determine  whether  the  appellant  was gainfully employed for the purpose of considering the extent of relief,  if any,  to which he may be entitled pursuant to our present  order  quashing  the  impugned  order.  In  the circumstances, there is no order as to costs. S. R                                         Appeal allowed. 8