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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: BHOOP SINGH VERMA

DATE OF JUDGMENT24/01/1979

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. SINGH, JASWANT SEN, A.P. (J)

CITATION:  1979 AIR  684            1979 SCR  (2)1126  1979 SCC  (2) 111  CITATOR INFO :  RF         1981 SC 957  (5)

ACT:      Termination of  simpliciter-No departmental  enquiry is necessary under law in such cases.

HEADNOTE:      The respondent  was appointed  as  a  Sub-Inspector  of police in  a temporary  post in 1955. He was discharged from service on  July 13,  1957. A  Writ Petition filed by him in the Allahabad  High Court  was allowed on August 4, 1959 and consequently he  was re-instated  in service on December 15, 1959. Thereafter,  on January  21, 1960  his  services  were terminated on  the ground  that they were no longer required by the  State. A suit for declaration that the said order of termination was  null and  void was decreed in his favour by the trial court which was affirmed in appeal and also by the High Court in second appeal.      Allowing the State appeal by special leave the Court, ^      HELD: 1.  The considerations  which prevailed  with the High Court  in reaching  its findings  on the application of Article 311(2) of the Constitution and the bona fides of the superior  authority   in  making   the  impugned   order  of termination simpliciter are not warranted in law. [1130D]      2. The  order terminating  the services  was  order  of termination simpliciter  passed in accordance with the rules applicable  to  temporary  Government  servants.  After  the original order  of discharge  was quashed by the High Court, the respondent  was reinstated, allowed increment in pay and one month’s  salary in  lieu of  notice under  the  ’general rules for  termination of  services of  temporary government servants was also given. [1128F-G]      3. It  was open  to the superior authority to terminate the respondent’s  services on the ground on which it did so. And the evidence disclosed no personal motive had influenced the order  or that  it was  passed by  way of  punishment. A departmental enquiry  is not required under the law. Instead of  instituting   disciplinary   proceedings   against   the government servant, the suitability for retention in service could be decided. [1128H, 1129A, E]

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    State of  U.P.v. Ram Chandra Trivedi, [1977] 1 SCR 462; Champaklal Chimanlal  Shah v.  The Union  of India, [1964] 5 SCR 190,  Jagdish Mitter v. Union of India, A.I.R. 1964 S.C. 449 and  State of  Punjab &  Anr. v.  Shri Sukh Raj Bahadur, [1968] 3 SCR 234; referred to.      Union of India & Ors. v. R. S. Dhaba, [1969] 3 SCC 603, State of  Bihar & Ors. v. Shiva Bhikshuk Mishra [1971] 2 SCR 191 and  R. S.  Sial v. The State of U.P. and Ors., [1974] 3 SCR 754; applied.      The State  of Bihar v. Gopi Kishore Prasad, A.I.R. 1960 SC 689  and Madan Gopal v. The State of Punjab, [1963] 3 SCR 716; distinguished. 1127

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 252 of 1969.      Appeal by  Special Leave  from the  Judgment and  Order dated 19-8-68  of the  Allahabad High  Court in Civil Appeal No. 254/65.      G. N. Dikshit and M. V. Goswami for the Appellant.      S. C. Manchanda, S. C. Patel and Trilok Singh Arora for the Respondent.      The Judgment of the Court was delivered by      PATHAK, J.-This  appeal by  special leave  is  directed against the  judgment and  order of the Allahabad High Court dated August 19, 1968 dismissing a second appeal arising out of a suit for declaration.      The respondent  was appointed  as  a  Sub-Inspector  of Police in  a temporary  post in 1955. He was discharged from service on  July 13,  1957. A  writ petition filed by him in the Allahabad  High Court was allowed on August 4, 1959, and accordingly on  December  15,  1959  he  was  reinstated  in service. Thereafter,  on January  21, 1960 his services were terminated by  the Deputy  Inspector General of Police, Agra Range, Agra.      On March  13, 1963 the respondent instituted a suit for a declaration  that the  order dated  January 21,  1960  was illegal and  void and  that he continued as Sub-Inspector of Police in  the Uttar  Pradesh Police Service. It was alleged that on a false complaint made against him in respect of the custody and  detention of one Smt. Phoolmati, an enquiry had been made  in consequence  of which  the appellant  had been arbitrarily and  illegally discharged  from service  on July 13, 1957.  It was pleaded that although he was reinstated on the success  of his  writ petition  in the  High Court,  his services were terminated a mere five weeks later although no ground had  arisen since  for doing so. It was asserted that the order  of January  21, 1960 was passed as a simple order of termination  in order  to avoid  a  departmental  enquiry under section  7 of  the Police  Act, which  enquiry if held would  have  enabled  him  to  expose  the  falsity  of  the allegations levelled  against him. The suit was contested by the appellant,  who maintained  that the  termination of the respondent’s services  was not  by  way  of  punishment  hor motivated by malice, and that it was a simple termination of the services of a temporary government servant on the ground that they were no longer required by the State. The suit was decreed by  the learned  Munsif, Etah  and  the  decree  was affirmed in  appeal and  second appeal.  The High  Court, in second appeal,  took the  view that  where  an  enquiry  was instituted by a superior authority into a misconduct alleged against a government

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1128 servant, the  resulting termination of service was by way of punishment because  it attached  a stigma  or amounted  to a reflection on  the competence  of the government servant and affected his  future career.  The High  Court held  that the findings  recorded   during  the  enquiry  on  the  original complaint against  the respondent  were responsible  for the order terminating the respondent’s services, and it affirmed that the order was vitiated by mala fides.      Attacking the  findings  of  the  High  Court,  learned counsel for  the appellant  contends that in the first place the order terminating the respondent’s services had not been made by  way of  punishment, but was an order of termination simpliciter passed  in accordance  with the rules applicable to temporary government servants. In the second place, it is said, if  the order  is attributed  to the complaint against the respondent  concerning  his  conduct  relating  to  Smt. Phoolmati it  was open  to the  Deputy Inspector  General of Police to  take the  circumstances of  the case into account for the  purpose  of  considering  the  suitability  of  the respondent for  continuing in  service. Learned  counsel for the  respondent   points  out   that  an  enquiry  had  been originally  instituted  against  the  respondent  which  had resulted in an order terminating his services and, he urges, after the  order of the High Court quashing his discharge on the  ground   of  violation   of  Article   311(2)  of   the Constitution it was obligatory on the superior authority, in case it  proposed to terminate the respondent’s services, to institute  a   proper  and  complete  departmental  enquiry, providing an  opportunity to the respondent to lead evidence and be  heard in  his defence,  and only thereafter could it make an order against the respondent.      We are  of the  opinion that  the appellant is right on both counts.  Considered as  an order made without reference to  the  earlier  proceeding  against  the  respondent,  the impugned order  cannot be  regarded as  one  of  punishment. After the  original order  of discharge  was quashed  by the High Court, the respondent was reinstated in service. He was even  allowed   an  increment  to  his  salary.  The  Deputy Inspector  General   of  Police   made  the  impugned  order subsequently terminating  his services  on the  ground  that they were  no longer  required. The services were terminated on payment of one month’s salary in lieu of notice under the "general rules  for  termination  of  service  of  temporary government servants". The Deputy Inspector General of Police was examined  as a  witness in  the suit,  and throughout he maintained that  he  terminated  the  respondent’s  services because they  were not  required any more and that in making the order  he did  not intend  to punish the respondent. The evidence  also   discloses  that   no  personal  motive  had influenced the  order. It was open to the superior authority to terminate  the respondent’s  services on  the  ground  on which it did so. 1129      Assuming, however,  that the impugned order was made in the background  of the  allegations against  the  respondent concerning his  behaviour with  Smt. Phoolmati,  we  see  no reason in law why a departmental enquiry should be necessary before the  respondent’s services  could be  terminated.  It appears from  the material  before us  that it  was merely a preliminary enquiry  which was made by the Superintendent of Police into  the allegations  made against  the respondent’s conduct concerning the woman. No departmental enquiry by way of disciplinary  proceedings was  instituted, no  charge was framed,  and   the   formal   procedure   characterising   a

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disciplinary proceeding was never adopted.      The Deputy  Inspector  General  of  Police  passed  the original  order   dated  July   13,  1957   discharging  the respondent from  the police force on the ground that  he had behaved in  a reprehensible manner, was not likely to make a useful police officer and was unfit for further retention in a disciplined  force. The  original order plainly attached a stigma to  the respondent’s  record of  service, and  it  is because of the specific grounds set forth in the termination order that the High Court considered the respondent entitled to the  benefit of  Article 311 (2) of the Constitution, and quashed the  order. Now  the order  having been quashed, the position reverts  to what  it was  when the Deputy Inspector General of  Police received the report of the Superintendent of Police  on the Preliminary enquiry made by him. There was nothing  to   prevent  the  Deputy  Inspector  General  from deciding   that    instead   of   instituting   disciplinary proceedings  against   the  government   servant  he  should consider whether  the government  servant was  suitable  for retention in  service. The  case law  on the  point has been considered elaborately  by one  of us (Jaswant Singh, J.) in State of  U.P. v.  Ram Chandra  Trivedi(1) and reference has been made in this behalf to Champaklal Chimanlal Shah v. The Union of  India(2), Jagdish  Mitter v. Union of India(3) and State of  Punjab &  Anr. v.  Shri Sukh Raj Bahadur(4). It is apparent from  the facts  of this  case that if the impugned order be  considered as made in the light of the allegations against the  respondent concerning the woman, the conduct of the respondent  constituted a  motive merely  for making the order and  was not  the foundation  of that  order. In  this connection what  has been  stated by  this Court in Union of India &  Ors. v.  R. S.  Dhaba.(5) State  of Bihar & Ors. v. Shive Bhikshuk Mishra(6) and R. S. Sial v. The State of U.P. & Ors.(7) appers relevant. That it was not intended 1130 to take  punitive action  against  the  respondent  for  his misbehaviour  with   Smt.  Phoolmati  is  evident  from  the circumstance that  thereafter the  respondent was allowed an increment to  his salary  and was regarded as in service for all purposes.  The High  Court, it seems to us, did not have regard to  all the  facts and circumstances of the case, and appears to  have assumed that the respondent’s services were terminated as a measure of punishment. The High Court relied on The  State of  Bihar v.  Gopi Kishore Prasad(1) and Madan Gopal  v.   The  State   of  Punjab(2).   Both   cases   are distinguishable. In  the former,  the government servant was discharged from  service because  he was found to be corrupt and  the  order  terminating  his  services  branded  him  a dishonest  and  incompetent  officer.  In  the  latter,  the government servant  had been served with a charge-sheet that he had  demanded and  received illegal gratification and the Court found  that the  proceeding, consequent  to which  the termination order  was made, was intended for the purpose of taking punitive action.      We  are   satisfied  that   the  considerations   which prevailed with  the High  Court in  reaching its findings on the application  of Article  311 (2) of the Constitution and the bona  fides of  the superior  authority  in  making  the impugned order  are not warranted in law and on the material before us.      Accordingly, the  appeal is  allowed, the  judgment and decree of the High Court dated August 19, 1968 are set aside and  the   respondent’s  suit   is  dismissed,  but  in  the circumstances without any order as to costs. S.R.                                         Appeal allowed.

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