REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO.27702 OF 2008  

Union of India & Ors.  .. Petitioners

Vs.

Mahaveer C. Singhvi  .. Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. After an outstanding academic career under the  

Rajasthan  Secondary  Board  and  the  University  of  

Jodhpur,  the  Respondent  appeared  for  the  Civil

Services Examination, 1998, conducted by the Union  

Public  Service  Commission  and  on  account  of  his  

brilliant  performance,  he  was  appointed  to  the  

Indian Foreign Service on 21st September, 1999.  But  

on 13th June, 2002, he was discharged from service  

by the following order :-

“The  President  hereby  discharges  forthwith  from  service  Shri  Mahaveer  C.  Singhvi, IFS Probationer (1999 Batch), in  accordance  with  the  terms  of  employment  issued  vide  order  No.Q/PA.II/578/32/99  dated 21st September, 1999.

By  order  and  in  the  name  of  the  

President.

    Sd/- (P.L. Goyal)

Addl. Secretary (AD)”   

2. Although, the aforesaid order appears to be an  

innocuous  order  of  discharge  simpliciter  of  a  

probationer, the same has given rise to a question  

of law relating to service jurisprudence which has  

been considered over and over again for the last  

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five decades.  However, even though the principles  

laid down by this Court in the various cases have  

been uniformly followed, there have been individual  

cases which have thrown up new but related issues  

which have been considered on their own merits.  As  

will be apparent from the aforesaid order dated 13th  

June,  2002,  the  question  with  which  we  are  

concerned in this Special Leave Petition (S.L.P.)  

relates  to  the  discharge  from  service  of  a  

probationer  during  his  period  of  probation.   In  

order to be able to appreciate the said question in  

the facts of this case, it is necessary to set out  

the  background  in  which  the  order  of  13th June,  

2002, came to be passed and the manner in which the  

same was dealt with by the Central Administrative  

Tribunal and the Delhi High Court.

3. The case made out by the Respondent before the  

Central  Administrative  Tribunal,  is  that  he  was  

deployed to the East Asia Division of the Ministry  

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of External Affairs.  He was, thereafter, asked to  

give his preference for allotment of the study of a  

compulsory foreign language.  The Respondent opted  

for French, German, Arabic and Spanish in the said  

order of preference. In view of his position in the  

merit  list,  the  Respondent  should  have  been  

allotted  German.  However,  in  deviation  from  the  

prevalent procedure whereby the allotments relating  

to study of a compulsory foreign language were made  

on the basis of gradation in the merit list, the  

Respondent  was  informed  by  a  letter  dated  11th  

January, 2001, that he had been allotted Spanish  

which  was  his  last  choice.   The  Respondent  

thereafter  made  a  representation  against  such  

allotment, but he was directed by the Petitioner  

No.2 Mr. P.L. Goyal, who was the then Additional  

Secretary (Admn.), to remain silent over the issue.  

The Respondent was, thereafter, posted in Madrid,  

Spain, in confirmation of the allocation of Spanish  

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to  him,  but  for  his  language  training  he  was  

directed to proceed to Valladolid, which was at a  

great  distance  from  Madrid.  The  Respondent  

thereupon made a further request for arranging his  

language  training  at  Madrid,  where  he  had  been  

posted since he wanted to take his dependent and  

ailing parents with him to Madrid.  On account of  

the sudden deterioration of the health condition of  

his parents, the Respondent sought permission to  

join the language course at a later date and such  

permission was apparently granted by the Mission at  

Madrid  by  a  communication  dated  10th September,  

2001.   As  the  date  for  the  new  course  was  not  

intimated  to  the  Respondent  and  there  was  no  

improvement  in  his  father’s  condition,  the  

Respondent  sought  further  extension  to  join  the  

Mission  and  the  same  was  also  granted  on  18th  

February,  2002.   Accordingly,  the  Respondent  

planned to join the Mission in July/August, 2002,  

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but in the note of 18th February, 2002, the request  

for  providing  medical  facilities  and  diplomatic  

passports to the Respondent’s dependent parents was  

not granted.  According to the Respondent, he was  

thereafter served with the order of discharge from  

service dated 13th June, 2002, set out hereinabove.  

4. The Respondent challenged the said order dated  

13th June, 2002, before the Central Administrative  

Tribunal in O.A.No.2038 of 2002, contending that  

after the expiry of his period of probation, he  

stood  confirmed  and  his  services  could  not  have  

been terminated without an enquiry in view of the  

provisions of Article 311(2) of the Constitution.  

It was also contended that the order of 13th June,  

2002, had been passed in complete violation of the  

principles of natural justice as the Respondent was  

not given a hearing or an opportunity to defend  

himself against the allegations which formed the  

foundation  of  the  said  order.   It  was  also  

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submitted that since the Respondent had protested  

against the dubious manner in which he had been  

illegally deprived of his choice of German as his  

language  allotment,  the  authorities  who  had  

deliberately  altered  the  rules  of  allotment  of  

language for the year 1999 to benefit a certain  

candidate,  were  determined  to  see  that  the  

Respondent  was  discharged  from  service.   It  was  

submitted that the method adopted for the year 1999  

for  allotment  of  languages  was  discontinued  

thereafter and the authorities thereafter reverted  

to the old method which was continuously followed  

till it was altered only for the year 1999.  It was  

submitted that by adopting the method in question,  

the candidates who figured in the select list of  

ten,  but  were  graded  below  the  Respondent,  were  

given  an  opportunity  to  exercise  their  option,  

while denying such opportunity to the Respondent  

who was left with no option of preference as per  

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his choice at the end of the exercise.  

5. Negating the submissions made on behalf of the  

Respondent herein, the Tribunal by its judgment and  

order  dated  4th September,  2003,  dismissed  the  

Respondent’s O.A.No.2038 of 2002, upon holding that  

the Petitioners had no intention of conducting an  

inquiry against the Respondent, but they did not  

also want him to continue in service, which could  

only  be  a  motive  and  not  the  foundation  for  

discharging the Respondent from service.  In order  

to buttress its finding, the Tribunal relied upon  

the  decision  of  this  Court  in  Dipti  Prakash  

Banerjee vs.  Satyendra Nath Bose National Centre  

for Basic Sciences, Calcutta & Ors. [(1999) 3 SCC  

60],  wherein  the  question  as  to  in  what  

circumstances  an  order  of  termination  of  a  

probationer can be said to be punitive fell for  

consideration.   It  was  held  by  this  Court  that  

whether an order of termination of a probationer  

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can  be  said  to  be  punitive  or  not  depends  on  

whether the allegations which are the cause of the  

termination are the motive or foundation.  It was  

observed  that  if  findings  were  arrived  at  in  

inquiry as to misconduct, behind the back of the  

officer or without a regular departmental enquiry,  

a simple order of termination is to be treated as  

founded on the allegations and would be bad, but if  

the  enquiry  was  not  held,  and  no  findings  were  

arrived at and the employer was not inclined to  

conduct an enquiry, but, at the same time, he did  

not want to continue the employee’s services, it  

would only be a case of motive and the order of  

termination of the employee would not be bad.   

6. One  other  aspect  which  was  subsequently  

agitated before the High Court but does not find  

place  in  the  decision  rendered  by  the  Central  

Administrative Tribunal in its judgment and order  

dated  4th November,  2003,  relates  to  a  complaint  

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alleged to have been made against the Respondent by  

one Mrs. Narinder Kaur Chadha, the mother of one  

Ms.  Arleen  Chadha,  to  the  Minister  of  External  

Affairs  on  7th February, 2002, alleging that the  

Respondent had been threatening her daughter and  

the entire family.  In the said complaint, it was  

indicated that the Respondent had met her daughter  

in 1997 and had been harassing her since then. It  

was  also  indicated  that  her  daughter  had  been  

thoroughly  demoralized  and  disturbed  by  the  

Respondent’s behaviour and that she had suffered  

both mentally and physically, as a result of which  

her  marriage  could  not  be  finalized.  The  

complainant  sought  suitable  action  against  the  

Respondent  for  allegedly  misusing  his  official  

position.  

7. It also appears that the Minister concerned had  

met Mrs. Narinder Kaur Chadha and Ms. Arleen Chadha  

on the same day and the matter had been referred to  

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the Joint Secretary and the Director (Vigilance)  

and  a  copy  of  the  complaint  was  sent  by  the  

Minister to the Vigilance Division on 8th February,  

2002, with a direction that the matter be looked  

into at the earliest.  Some enquiries appear to  

have been conducted about the Respondent’s conduct  

and  character  by  the  Joint  Secretary,  Foreign  

Service Institute (FSI) but nothing adverse could  

be found against him.  Despite the above, on 19th  

February,  2002,  the  Joint  Secretary  (Vigilance)  

held further discussions with the Joint Secretary  

(Admn.) and, thereafter, a Memorandum was issued to  

the Respondent on the very same day alleging his  

unauthorized absence.  

8. Although, the said allegations were duly denied  

by the Respondent, on 8th March, 2002, the Director,  

Vigilance  Division,  prepared  a  formal  inquiry  

report stating that there were some complaints of  

misconduct  against  the  Respondent  and  that  the  

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Minister desired action to be taken against him.  

Accordingly, on 5th April, 2002, Shri P.L. Goyal,  

Additional Secretary (Admn.) noted that as desired  

by the Minister, the Respondent had been called for  

a hearing in the presence of the Joint Secretary  

(CNV) and Under Secretary (FSP) and a decision was  

ultimately  taken  by  the  Director  on  23rd April,  

2002, to terminate the services of the Respondent  

and stated that the proposal had the approval of  

the  Minister  of  External  Affairs.  Certain  new  

materials  were  introduced  against  the  Respondent  

relating  to  a  written  complaint  which  had  been  

received from a Desk Officer in the Department of  

Personnel  &  Training  (DoPT)  alleging  that  the  

Respondent had threatened him and tried to bribe  

him to effect a change in allotment of his service  

from  the  I.F.S.   The  proposal  to  terminate  the  

services of the Respondent was said to have been  

ultimately approved by all the superior authorities  

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and in their reply filed before the Tribunal, the  

Petitioners had stated that the Respondent herein  

had been discharged from service, primarily for his  

misconduct in office.  This led the Tribunal to  

conclude that the record was so clear that the only  

conclusion that could have been arrived at is that  

the  findings  of  misconduct  arrived  at  by  the  

Petitioners  were  only  the  motive  for  the  orders  

discharging the Respondent from service.

9. The  Respondent  challenged  the  judgment  and  

order  of  the  Tribunal  dated  4th September, 2003,  

dismissing  his  O.A.No.2038  of  2002,  before  the  

Delhi High Court in W.P.(C)No.8091 of 2003.  It was  

emphasized on his behalf that his discharge from  

service was not a discharge simpliciter, but the  

decision taken in that behalf was the result of an  

enquiry conducted behind his back in relation to a  

complaint  alleged  to  have  been  made  by  Mrs.  

Narinder Kaur Chadha regarding threatening, abusive  

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and sexually explicit remarks allegedly made by the  

Respondent to her daughter.  It was submitted that  

the same would be evident from the pleadings made  

on  behalf  of  the  Petitioners  which  would  

unequivocally constitute an admission on the part  

of  the  Petitioners  that  the  order  of  discharge  

dated 13.6.2002 discharging the Respondent from his  

duties  was  passed  because  of  the  Respondent’s  

alleged misconduct which was the very foundation of  

the said order.

10. It  was  also  contended  that  the  Additional  

Secretary,  Mr.  P.L.  Goyal  and  some  others  were  

nursing  a  grudge  against  him  on  account  of  his  

protest  against  the  dubious  alteration  of  the  

allotment of language rules for the year 1999, in  

order to give a choice of language allotment to  

five candidates who were below the Respondent in  

the  Select  List  of  ten  chosen  for  the  Foreign  

Service, while denying the same to the Respondent.  

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Once the complaint was received from Mrs. Narinder  

Kaur  Chadha,  the  Petitioners  stepped  into  over  

drive  to  remove  the  Respondent  from  the  Foreign  

Service Cadre by any means at their disposal, but  

without  giving  the  Respondent  an  opportunity  of  

hearing to defend himself.

11. On  behalf  of  the  Petitioners  herein,  the  

submissions  made  before  the  Tribunal  were  

reiterated  by  the  learned  Additional  Solicitor  

General.  It was admitted that the Petitioners had  

discharged  the  Respondent  from  service  for  

misconduct during his period of probation, which  

the Petitioners were entitled to do not only under  

the  terms  and  conditions  of  the  Respondent’s  

appointment,  but  also  under  Rule  16(2)  of  the  

Indian  Foreign  Service  (Recruitment,  Cadre,  

Promotion, Seniority) Rules, 1961, which empowers  

the Central Government to discharge any probationer  

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from  service,  who  may  be  found  unsatisfactory  

during the period of probation.

12. It was also contended that since no enquiry was  

contemplated against the Respondent, the order of  

discharge  simpliciter  during  the  Respondent’s  

period of probationary service, without attaching  

any  stigma,  was  valid  and  no  interference  was  

called  for  therewith  in  the  Writ  Petition.  

Reliance was placed on several decisions, but, in  

particular,  on  the  decision  in  Dipti  Prakash  

Banerjee’s case (supra) which has been discussed  

hereinbefore in paragraph 5.

13. After considering the various decisions cited  

by  the  learned  Additional  Solicitor  General,  

beginning  with  the  decision  of  this  Court  in  

Purshotam Lal Dhingra vs. Union of India [1958 SCR  

828],  the  High  Court  accepted  the  case  of  the  

Respondent and observed that it was left with no  

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doubt that the entire object of the exercise was to  

camouflage the real intention of the Petitioners,  

which was to remove the Respondent for something  

about which they had convinced themselves, but did  

not think it necessary to give the Respondent an  

opportunity to clear his name.  The High Court by  

the impugned judgment dated 29.9.2008, accordingly  

quashed the order of discharge of the Respondent  

from the Indian Foreign Service dated 13.6.2002,  

along with the orders passed by the Tribunal on  

4.9.2003 dismissing the Respondent’s O.A.No.2038 of  

2002 and on 14.11.2003 rejecting the Respondent’s  

Review Application No.323 of 2003, with a direction  

to reinstate the Respondent in the Indian Foreign  

Service Cadre of the 1999 Batch, along with all  

consequential  benefits,  including  consequential  

seniority,  within  a  month  from  the  date  of  the  

order.   

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14. In  allowing  the  Writ  Petition  filed  by  the  

Respondent, the High Court referred to and relied  

on the decision of this Court in the case of Radhey  

Shyam  Gupta vs.  U.P.  State  Agro  Industries  

Corporation Ltd. & Anr. [(1999) 2 SCC 21], wherein  

this Court had held that in cases where termination  

is preceded by an enquiry, evidence is received and  

findings as to misconduct of a definite nature are  

arrived at behind the back of the officer and where  

on the basis of such a report the termination order  

is issued, such an order would be violative of the  

principles of natural justice.      

15. The High Court also referred to the Special  

Bench decision of this Court in Shamsher Singh vs.  

State of Punjab and another [ AIR 1974 SC 2192 =  

1974 (2)SCC 831] which was a decision rendered by a  

Bench of seven Judges, holding that the decisive  

factor  in  the  context  of  the  discharge  of  a  

probationer  from service is the substance of the  

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order and not the form in determining whether the  

order of discharge is stigmatic or not or whether  

the same formed the motive for or foundation of the  

order.

16. In the facts of the case the High Court came to  

the conclusion that a one-sided inquiry had been  

conducted  at  different  levels.   Opinions  were  

expressed and definite conclusions relating to the  

Respondent’s  culpability  were  reached  by  key  

officials  who  had  convinced  themselves  in  that  

regard.  The  impugned  decision  to  discharge  the  

Respondent  from  service  was  not  based  on  mere  

suspicion alone. However, it was all done behind  

the  back  of  the  Respondent  and  accordingly  the  

alleged misconduct for which the services of the  

respondent were brought to an end was not merely  

the motive for the said decision but was clearly  

the foundation of the same.

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17. The High Court was convinced that although the  

order  of  discharge  dated  13.6.2002  by  which  the  

Respondent  was  discharged  from  service  was  not  

without substance, the same was bad and liable to  

be quashed since the respondent’s services had been  

terminated  without  a  formal  inquiry  and  without  

giving  him  any  reasonable  opportunity  to  defend  

himself.   

18. Appearing  for  the  Petitioners,  Mr.  P.P.  

Malhotra, learned Additional Solicitor General of  

India,  reiterated  the  arguments  which  had  been  

advanced  before  the  learned  Tribunal  and  also  

before the High Court emphasizing that since the  

Respondent had been discharged from service by a  

simple  order  of  discharge  without  any  stigma  

attached thereto, the Respondent was not entitled  

to  the  protection  of  Article  311(2)  of  the  

Constitution.  It  was  urged  that  since  the  

Respondent  had  not  completed  the  probationary  

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period, and was a probationer when the order of  

discharge was made, it was within the competence of  

the Petitioners to pass such an order if they were  

dissatisfied with the performance of the Respondent  

during the probation period.  It was sought to be  

urged that an assessment of a candidate appointed  

on probation has to be made before his services may  

be confirmed.  The process to make an assessment of  

the performance of the probationer often requires  

the  confirming  authorities  to  look  into  and  

consider  his  complete  performance,  which  could  

include lapses on his part which could have adverse  

consequences for the employer.  

19. Mr. Malhotra submitted that in the instant case  

the  indisciplined  acts  and  behaviour  of  the  

Respondent  during  his  period  of  probation  were  

noticed and it was found that instead of being an  

asset to the Indian Foreign Service, the Respondent  

would ultimately become an embarrassment and thus  

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were of the view that he should be discharged from  

the service.  Mr. Malhotra repeated the stand taken  

by him before the High Court that it was not the  

intention of the Petitioners to conduct an inquiry  

into the various materials received relating to the  

services  of  the  Respondent,  and,  accordingly,  a  

decision was taken to discharge him from service on  

the ground of his unsatisfactory performance during  

his period of probation, although, the same does  

not find any place in the order of discharge which  

was  an  order  of  discharge  simpliciter.   Mr.  

Malhotra urged that in a series of judgments passed  

by this Court it had repeatedly been held that if  

no stigma was attached to the separation of ways  

between the authorities and the probationer, the  

same would not amount to being the foundation of a  

discharge simpliciter.  Mr. Malhotra urged that the  

High Court had erred in taking a contrary stand and  

had  travelled  beyond  its  jurisdiction  in  going  

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beyond  the  satisfaction  of  the  authorities  in  

reaching the conclusion that the inquiry conducted  

against the Respondent formed the foundation and  

not the motive for the impugned order of discharge.  

20. In the aforesaid regard, Mr. Malhotra firstly  

referred to the decision of this Court in Purshotam  

Lal Dhingra vs. Union of India [1958 SCR 828] as to  

the scope of Article 311 of the Constitution in  

relation to the appointment of a Government servant  

to  a  permanent  post  either  in  a  substantive  

capacity or on probation or even on an officiating  

basis.   Dealing  with  appointments  on  probation,  

this  Court  observed  that  an  appointment  to  a  

permanent post in Government service on probation  

means, as in the case of a person appointed by a  

private employer, that the person so appointed is  

taken on trial.  Such an employment on probation  

would  generally  be  for  fixed  periods,  but  could  

also remain unspecified and under the ordinary law  

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of master and servant would come to an end during  

or  at  the  end  of  the  probation  period,  if  the  

servant so appointed on trial was found unsuitable  

and his service was terminated by a notice.  It was  

accordingly held that appointment to a permanent  

post in Government service on probation is of a  

transitory character and the person so appointed  

does not acquire any substantive right to the post  

and  his  service  can  be  terminated  at  any  time  

during the period of probation.   

21. Reference  was  also  made  to  the  decision  

rendered by this Court in Benjamin (A.G.) vs. Union  

of  India [1967  (1)  LLJ  718  (SC)],  where  the  

principles  enunciated  in  Purshotam  Lal  Dhingra  

(supra) were followed in regard to the termination  

of service of a temporary Government servant.  What  

was sought to be highlighted was the right of the  

authorities to stop a departmental proceeding and  

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to pass an order of discharge simpliciter to avoid  

attaching a stigma to the order of dismissal.

22. Several other decisions on the same question,  

namely,  (1)  Pavanendra  Narayan  Verma vs.  Sanjay  

Gandhi PGI of Medical Sciences [(2002) 1 SCC 520];  

(2)  State of Haryana vs.  Satyender Singh Rathore  

[(2005)  7  SCC  518];  (3)  Dipti  Prakash  Banerjee  

(supra); (4) Jai Singh vs. Union of India [(2006) 9  

SCC 717]; (5) Gujarat Steel Tubes Ltd. vs. Gujarat  

Steel Tubes Mazdoor Sabha [AIR 1980 SC 1896]; (6)  

Life Insurance Corp. of India vs.  Shri Raghvendra  

Seshagiri Rao Kulkarni [JT 1997 (8) SC 373]; and  

(7) State of Punjab vs. Shri Sukh Raj Bahadur [1968  

(3) SCR 234] were also referred to by Mr. Malhotra.  

In the two latter cases, this Court relying on the  

principles  laid  down  in  Purshotam  Lal  Dhingra’s  

case  (supra),  reiterated  the  law  that  the  

requirement to hold a regular departmental enquiry  

before  dispensing  with  the  services  of  a  

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probationer  cannot  be  invoked  in  the  case  of  a  

probationer,  especially  when  his  services  are  

terminated  by  an  innocuous  order  which  does  not  

cast  any  stigma  on  him.   However,  it  was  also  

observed that it cannot be laid down as a general  

rule that in no case can an enquiry be held.  If  

the termination was punitive and was brought about  

on the ground of misconduct, Article 311(2) would  

be  attracted  and  in  such  a  case  a  departmental  

enquiry would have to be conducted.

23. Mr.  Malhotra  lastly  referred  to  one  of  the  

latest decisions of this Court in this field in  

Chaitanya Prakash & Anr. vs. H. Omkarappa [(2010) 2  

SCC 623], wherein it was observed that even if an  

order  of  termination  refers  to  unsatisfactory  

service of the concerned employee, the same could  

not be termed as stigmatic.

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24. Mr. Malhotra submitted that having regard to  

the consistent view of this Court that the services  

of  a  probationer  can  be  discharged  during  the  

probationary  period  on  account  of  unsatisfactory  

service by way of termination simpliciter, without  

holding a departmental enquiry, the order of the  

High  Court  was  contrary  to  the  settled  legal  

position  and  was,  therefore,  liable  to  be  set  

aside.      

25. Appearing  for  the  respondent,  Mr.  Jayant  

Bhushan,  learned  Senior  Advocate,  submitted  that  

the contentions urged on behalf of the Petitioners  

herein had been fully considered by the High Court  

which had, after considering the various decisions  

of this Court, rightly come to the conclusion that  

the Respondent’s discharge from service was not a  

discharge  simpliciter,  but  was  on  account  of  

several findings arrived at behind his back on the  

basis  of  complaints  made  relating  to  the  

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Respondent’s moral integrity.  He also submitted  

that apart from the above, the protest raised by  

the Respondent with regard to the unlawful manner  

in which the allotment of foreign languages to the  

1999 Batch of I.F.S. officers had been made by the  

authorities,  was  also  a  major  factor  in  the  

decision-making process for removing the Respondent  

from  the  service.   It  was  contended  that  the  

authorities were desperate to cover up the highly  

dubious and motivated manner in which the rules of  

allotment were altered only in respect of the 1999  

Batch of I.F.S. appointees in order to favour a  

particular candidate who was graded lower than the  

Respondent.  Mr. Bhushan highlighted the fact that  

despite  being  graded  higher  than  five  other  

candidates  in  the  select  list  of  ten,  the  

Respondent  was  denied  his  right  of  preference  

relating to allotment of a foreign language of his  

choice  in  order  to  accommodate  one  Ms.  Devyani  

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Khobragade, who was graded at two places below the  

Respondent  and  wanted  German  as  her  first  

preference.   Mr.  Bhushan  submitted  that  a  great  

amount of political pressure was brought to bear  

upon  the  concerned  authorities  to  ensure  that  

Ms. Khobragade was allotted German as her language  

preference, as she happened to be daughter of a  

powerful I.A.S. officer in Maharashtra.

26. Mr. Bhushan submitted that the High Court had  

correctly held that the order of discharge was only  

a camouflage, and in substance, it was a punitive  

order based on malafide considerations relating to  

findings  of  misconduct  recorded  against  the  

Respondent behind his back.

27. Mr. Bhushan submitted that, as has been rightly  

held by the High Court, the case of the Respondent  

was fully covered by the series of decisions of  

this  Court  which  have  also  been  referred  to  on  

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behalf of the petitioners.  Mr. Bhushan, however,  

laid special emphasis on the following decisions of  

this Court, some of which have also been cited on  

behalf  of  the  petitioners,  namely,  (1)  State  of  

Bihar vs. Shiva Bhikshuk Mishra [(1970) 2 SCC 871];  

(2) Shamsher Singh (supra); (3) Gujarat Steel Tubes  

Ltd. (supra); (4)  Anoop Jaiswal vs.  Government of  

India & Anr. [1984) 2 SCC 369]; (5)  Nehru Yuva  

Kendra Sangathan vs.  Mehbub Alam Laskar [(2008) 2  

SCC 479], wherein it has been repeatedly observed  

that if a discharge is based upon misconduct or if  

there is a live connection between the allegations  

of misconduct and discharge, then the same, even if  

couched in language which is not stigmatic, would  

amount  to  a  punishment  for  which  a  departmental  

enquiry was imperative.  Various other decisions  

were also cited by Mr. Bhushan, which reflect the  

same views as expressed by this Court in the above-

mentioned decisions.

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28. From the facts as disclosed and the submissions  

made on behalf of the respective parties, there is  

little doubt in our minds that the order dated 13th  

June, 2002, by which the Respondent was discharged  

from  service,  was  punitive  in  character  and  had  

been  motivated  by  considerations  which  are  not  

reflected in the said order.   

29. The  Petitioners  have  not  been  able  to  

satisfactorily  explain  why  the  rules/norms  for  

allotment of languages were departed from only for  

the year 1999 so that the Respondent was denied his  

right  of  option  for  German  and  such  choice  was  

given to Ms. Khobragade who was at two stages below  

the Respondent in the gradation list.  The mode of  

allotment was amended for the 1999 Batch in such a  

calculated fashion that Ms. Khobragade, who was at  

Serial No.7, was given her choice of German over  

and  above  the  Respondent  who  was  graded  at  two  

stages above her.  The reason for us to deal with  

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this aspect of the matter is to see whether the  

case  of  the  Respondent  is  covered  by  the  views  

repeatedly expressed by this Court from  Purshotam  

Lal Dhingra (supra) onwards to the effect that if  

the inquiries on the allegations made against an  

employee  formed  the  foundation  of  the  order  of  

discharge, without giving the employee concerned an  

opportunity  to  defend  himself,  such  an  order  of  

discharge would be bad and liable to be quashed.

30. In addition to the above, the then Minister of  

External Affairs, Government of India, appears to  

have taken an active interest on the complaint made  

by Mrs. Narinder Kaur Chadha and, although, nothing  

was found against the Respondent on the basis of  

the inquiries conducted, the same was taken into  

consideration  which  is  reflected  from  the  

observation  made  by  Mr.  Jayant  Prasad,  Joint  

Secretary  (CNV)  that  he  had  no  doubt  that  the  

respondent would blacken the country’s name.  There  

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is absolutely no material on record to support such  

an observation made by a responsible official in  

the Ministry, which clearly discloses the prejudice  

of  the  authorities  concerned  against  the  

Respondent.  

31. Since the High Court has gone into the matter  

in depth after perusing the relevant records and  

the learned Additional Solicitor General has not  

been able to persuade us to take a different view,  

we see no reason to interfere with the judgment and  

order of the High Court impugned in the Special  

Leave Petition.  Not only is it clear from the  

materials on record, but even in their pleadings  

the Petitioners have themselves admitted that the  

order of 13th June, 2002, had been issued on account  

of the Respondent’s misconduct and that misconduct  

was the very basis of the said order.  That being  

so, having regard to the consistent view taken by  

this  Court  that  if  an  order  of  discharge  of  a  

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probationer  is  passed  as  a  punitive  measure,  

without  giving  him  an  opportunity  of  defending  

himself, the same would be invalid and liable to be  

quashed, and the same finding would also apply to  

the Respondent’s case.  As has also been held in  

some of the cases cited before us, if a finding  

against a probationer is arrived at behind his back  

on  the  basis  of  the  enquiry  conducted  into  the  

allegations made against him/her and if the same  

formed the foundation of the order of discharge,  

the same would be bad and liable to be set aside.  

On  the  other  hand,  if  no  enquiry  was  held  or  

contemplated  and  the  allegations  were  merely  a  

motive for the passing of an order of discharge of  

a  probationer  without  giving  him  a  hearing,  the  

same would be valid.  However, the latter view is  

not  attracted  to  the  facts  of  this  case.   The  

materials on record reveal that the complaint made  

by Mrs. Narinder Kaur Chadha to the Minister of  

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External  Affairs  had  been  referred  to  the  Joint  

Secretary  and  the  Director  (Vigilance)  on  8th  

February, 2002, with a direction that the matter be  

looked  into  at  the  earliest.   Although,  nothing  

adverse was found against the Respondent, on 19th  

February,  2002,  the  Joint  Secretary  (Vigilance)  

held further discussions with the Joint Secretary  

(Admn.) in this regard.  What is, however, most  

damning is that a decision was ultimately taken by  

the  Director,  Vigilance  Division,  on  23rd April,  

2002, to terminate the services of the Respondent,  

stating that the proposal had the approval of the  

Minister of External Affairs.  This case, in our  

view, is not covered by the decision of this court  

in Dipti Prakash Banerjee‘s case (supra).

32. The  Special  Leave  Petition  is,  accordingly  

dismissed, with cost to the Respondent, assessed at  

Rs.25,000/- to be paid to the Respondent by the  

Petitioners.  All interim orders are vacated and  

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the Petitioners are given a month’s time from today  

to comply with the directions given by the High  

Court in its order dated 29th August, 2008, while  

allowing  the  writ  application  filed  by  the  

Respondent.   

________________J. (ALTAMAS KABIR)

________________J. (J.M. PANCHAL)

________________J. (CYRIAC JOSEPH)

New Delhi, Dated: 29.07.2010.            

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