- Be 453 -ANOOPJAISWAL ste v.
GOVERNMENT OF INDIA & ANR. January 24, 1984 -
* r °
&
[ E. S. VENKATARAMIAH AND R. B. Misra, -JJ
Constitution of India—Art. 31] (2)--Applicability of. Pretectton sunder Art. 311 (2) available if the order of discharge is found to be by way of Punishment. To see whether an order of discharge is.by way of punishment, form of the order is not decisive. Court must go behind the form and ascertain the true character of the order. ‘ Uae
The appellant who had been selected for appointment in the Indian Police
" Service was undergoing trainings probationer in the National Police Academy.
On June 22, 1981 due.to rain the appellant as well other probationers reached late by a few minutes at the changed venue for-conducting P. T. For this delay explantion was called from all the probationers. In his explanation the appellant sincerely regretted the lapse. The appéllant was considered to be one of- the ring-leaders ‘who was responsible for the delay. The Director of {the Academy without holding -an enquiry into the alleged misconduct recommended to the Government that the appellant should be discharged from service. On the basis of that recommendation the: Government by its order dated November 9, 1981 | discharged the appellant from service. Thé Government rejected’ the appellant’s representation against the order discharging him. The appellant ‘challenged the . validity of the order under Art. 226 of the Constitution. The High Court dismissed the petition at the-admission stage. Hence this appeal. The appellant contended that the order discharging him was in reality an order terminating ‘his services on the ground of misconduct and ssesuch could not-have been passed without Holding an enquiry as contemplated under Art. 311 (2) of the Constitution and. the relevant rules governing such an enquiry. : - :
Allowing the appeal, HELD : The impugned order of discharge is set aside. Where the form of the order is merely a camouflage for an order of dismissal 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 employ- ment 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‘ @nferred by law upon the employee. [563 E-F] - ; ; ;
. Parshotam Lal Diingra y. Union of India, [1958]°S, C. R. 828; Shamsher H
Singh & Anr. v. State of’ Punjab, [1975] 18. C. R. 814; State.of Punjab & Anr.
454 - a “SUPREME COURT REPORTS - (1984) 2s.0...
- Vv. Shri Siakh Raj Bahadur, * 11969) 3 's. C.C:, 603; State ¢ of Bihar & Ors. ’v. “Shiva Bhikshuk Mishra, [1971] 2 S.C. R. 191; B.S. Sial v.-The State of U. P. & Ors.,
.{1974]-3 S.C. R. 754; State of U.P. V: Ram Chandra Trivedi, [1977] 1 S. C. R. . 3 462; and I. N. Saksena v, State of Madhya Pradesh, (1967) 2.S.C. R. 496;° - referred to. -
In the instant case, on. gding: through the record ‘and taking into account all the attendant ‘circumstances the Court. is satisfied that the alleged Mt of mis-. . conduct on Juné 22, 1981 was: the * ‘real foundation for the action taken _againstthe appellant: and that the other instances stated.in the course of the counter affidavit are mere allegations which are put forward only for purposes of strengthening the defence which is otherwise very weak. The case is one which attracted Article’ 311 @) of the. Constitution -as «the, impugned otder amounts to a. tetntination of service by way of punishment and‘an enquiry should have been held in accordance withthe said constitutional provision. That admittedly | having not been done, the impugned order is liable to be struck down. [465 B-C]
‘Civ APPELLATE JURISDICTION: Civil Appeal No, 3040 of 1982.
Appzal by. Sp2cial leave from the Judgment: and Order dated. the 30th August, 1982 of the Delhi High Court i in Writ Petition No.
1580 of 1982). ° i KN. Bhatt for the Aprelan. ied MS. Gujr al and’ G.S. Narain for the Respond,
The J udgment of the Court was s delivered by
-VENKA’ rARAMIAH, J. June 22, 1981 was really a bad day fox the
: appellant Anoop Jaiswal who having been selected. by the Union
Public Service Commission for- appointment - in the Indian Police: Service was. undergoing training as a probationer at the Sardar Valla-.
bhbhai “Patel National Police’ Academy, Hyderabad alongwith: other probationers. On that day all the probationers were expected to be.
present at 5.50 A.M. at. the field where the ceremonial drill practice was to be conducted. --Since it was raining at that time it appears that’ the. venue was shifted to the Gymnasitm. Hall where it - was proposed.
to conduct P.T./unarmed combat practice. and intimation was’ scnt to the trainees at the: Mess. When the Assistant Director (Outdoor Training) reached the Gymnasium at 5.50 A. M. none of the probationers-had ‘reached there. ‘They all reached the place 22 minutes.
. : late i.e, by 6,15 A. M. when the rains had abated and thé parade com?
menced at 6, 15 AM. It appears that earlier ‘when a.messenger sent by. the Assistant Director had gone to call the probationers they had .
ANOOP JAISWAL ¥. GOVT. OF INDIA (Vera J. ) 455 asked for a vehicle to-go to the place ai as it.“ was raining, This delay a. -was considered as an incident which called for an enquiry. ‘Explana- s tion was‘called from all"the probationers. The appellant was con-— sidered to be one of the ring leaders who-.was responsible for the delay. When the appellant was asked about the incident, he gave his explanation to the Director of the National Police Academy which read thus:
,
¥ do - Thé Director, © National Police Academy, - , Hyderabad. 7 4 Dear Sir, , _.., In reply to your Memo. \. dated 22nd June, 1981 Lhumbty . submit that as for my being late in P.T. ‘by 10 mts., 1 sincerely regret the lapse: But the ‘second charge that I instigated. others to do so is totally baseless and without a single iota ~e of truth, 1 request you Sir to make a thorough enquiry into. D ‘such an allegation. I never had ‘nor have such plebian : oO mentally, 7 re / .
«9
‘Thanking you, - oe ne me
_ oO ct - Yours ‘sincerely, cn SO : w © Anoop Jaiswal” a Tt would appear-that the Director without holding’ an enquiry * into the alleged misconduct recommended to the. Government of
». . India that the appellant should be discharged from the service. On .
@the basis of the above report, the Government of India passed the |. Fo order of discharge dated November 5, 1981 and communicated it, to
4 the w appellant. The material part of the order. reads thus:
~&No, 122011/9/81 Pers. IU
* . Government of India/Bharat. Sarkar. J aro Ministry of Home Affairs/Grih Mantralaya SO G. New Delhi- 110001, the 9 Nov F981 5 ORDER
Whereas the-. Céntral Government is satisfied that ‘Shri H Anoop’ Jaiswal, appointed to the Indian Police Service on pro- ry - ~
/ 4560 SUPREME COURT REPORTS {1984} 2 s.c.r.
e.
‘bation on the result of the Civil Service Examination held in . the year 1979, is unSuitable for being a member of the said
\ service, he is hereby discharged under clause (b) of Rule .
12 of the Indian Police Service (Prcbation) Rules, 1954.
‘The order, of discharge will take effect from the date on which it is served on the said Shri Anoop Jaiswal.
Tn the name of and on behalf of the President of India.
(NARENDRA PRASAD DIRECTOR”
On receipt of the above order of discharge, the appéllant made a representation on November 14, 1981 to the Government of India, - to reconsider the matter. It appears that the Director of the National Pp olice’ Academy on this occasion recommended that the appellant may be reinstated. That representation was rejected by the Government oF India on April. 8, 1982. Thereafter,. he filed a petition under’ Article 226 of the Constitution before the High Court of Delhi . contending that the-order of discharge was violative of Article 311(2) and Article 14 of the Constitution. That petition was dismissed by
_ the High Court at the stage of admission on August 30,1982 after hearing the counsel’ for the Wnion of India.- Against the judgment of the High Court*the appellant has filed this appeal with special | leave under Article 136 of the Constitution.
The main contention of the appellant before us is that the order discharging the petitioner though on the face of it appears to carry® no stigma.is in reality an order terminating his service on the ground of ‘misconduct alleged to have been committed by him on June: 22, 1981 in acting as one of the ring leaders who were responsible for the delay of about twenty-two minutes in the arrival of the probationers at the Gymnasium and that such an order could not have been passed without holding an enquiry as contemplated under Article 311(2) of « the Constitution and the relevant ‘tules governing such an enquiry.
_ He has also contended that’ the oder is based ‘on conjunctures and surmises and by way of illustration he has referred us to paragraph - 13 of the counter affidavit which reads thus :
+ bh.
®
,
“Para 13: - -_ - ,
ANOOP JAISWAL Y. GovT. OF INDIA (Venkataramiah, J.) 457
The petitioner did not conduct himself fully in accordance with the prescribed rules and regulations during his training: _ period. On one, occasion*when he was sanctioned ‘Jeave for
16 days in the month of May, 1981, he did not.report himself for duty in time. He absented himself wilfully on 1.6.1981 without applying for leave for the day. For this action, he was warned by the Director against recurrence of such con- “duct. The period of his wilful absence for one day was treated as leave without pay. On two earlier occasions; the petitioner’s conduct was found prejudicial to good order and discipline, on the first occasion he was verbally counselled - by the Chief Drill Instructor and .on the. second occasion a
» Memo mas issued to him.
There was no gradation maintained in the Academy’ about the attendance, in terms of which the petitioner had _ the récord of being second {or may be third) highest in the -
Academy. However, -thisrecord i in this respect was otherwise - _ satisfactory.” .
The reply of the appellant to the above allegation is found in paragraph: 6 of the Tejoinder. affidavit filed by the appellant which reads :
“Re: Para.13: The.avermentsma de in para 13 of the | petition are reiterated and the contentions of, the respondent to the contrary are denied as incorrect. It is reiterated that the petitioner conducted himself fully in accordance with ° rules and regulations. The allegation made by the respondent that I absented myself wilfully on 1.6.1981 without applying for leave for the day is highly misleading. The correct fact is that I was sanctioned my Earned Leave on 15.5.81 fora’ period of 16 days, and I was to report back for duty on 1.6.81 before 12.00 noon, J made arrangement .to reach Hyderabad | before 8.00 a.m. on 1.6.1981. However’ on acccuntof late running of train ‘in which I was travelling and consequently missing the connecting train, Icould reach Hyderabad only © around noon and J report at 1.00 p.m. All these facts were ‘duly explained to the Asstt. Director, Outdoor Training; and — . he’ permitted. to attend the afternoon classes on 1.6.81 which °
I did. (However, at this suggestion, 1 applied for leave for the day and the leave was sanctioned without pay). It is incorrect to say that Iwas warned for'this. All that the: °
' Director said was ‘that on such situations, the proper course was to.apply for a day’s leave which I did as stated’ earlier, It is, therefore, very unteasonable to characterise the. said _ incident as wilful absence: The further allegation. that.
' .on the earlier occasions, the: petitioner’s conduct was found prejudicial to: good order and discipline, is very vague’ and without any . ‘particulars. Counselling by the Instructor,
_ concerned is a routine affair and, in fact, the Instructors are, meant .to counsel, Evén ‘regarding the second occasion, when a memo was said to have issued, it is not stated as to.”
‘respondent has: not dénied the allegation made by me that T° was not the only one who reecived such memos and that ; without exception all the probationary officers had at somes. . time or the other received such memos. J deny the rest of . the. allegations and reiterate the, averments made in para 13. ‘of the petition.” ” : . The: ‘learned counsel for the parties have cited a * puimber of | decisions before us in’ support oftheir respective cases. On going: “through them we are of the view that there is not much divergence in them as to the true. lega! Principles to be followed in matters of this nature but the -real problem appears to be’ ore of application
458. SUPREME COURT REPORTS. a 1984] 2 s.c.r. mo a what the offence was. It is significant to note that--the. 4 of those principles j in a given case in determining whether the parti- .
cular action takgn amounts to a punishment attracting Article 311(2) 7
"of the Constitution .or a mere discharge simpliciter not requiring the " holding of an enquiry as ‘contempiated under Article 311(2), We shall now deal with two leading cases having a bearing on the question before us. In Parshotam+ Lal Dhingra. y. Union of India™ this Court after an elaborate consideration of the relevant’ provisions. of the
~ Constitution and judicial decisions cited before. them observed:
“The net result is that it is cnly in these. cases where the Goverament intends to inflict those | three forms of punish- ments that the Government servant must be given a reasonable opportunity: of. showing cause against the action proposed to be taken in regard to them. It follows, therefore, that if the termination of scrvice is sought to be brought about | ‘other wise than by way of punishment then’ the Government "servant whose service is so. terminated’ cannot claim’ the -
A) [1958] S-G.R. 828, |
" ANOOP JAISWAL Y. Govr. OF INDIA (Venkataramiah, J) 459
‘protection of Art, 311(2) and the. decisions cited before us — and referred to above, in so faras they lay. down that principle, must be-held to be rightly decided,
The foregoing conclusion, however, does not solve’ the. ~ entire problem, for it has yet to be ascertained as to when
_ an order for the termination of Service is inflicted as and by ‘ way of punishment and when it is not
Where a person is appointed: to a permanent post in a Government service on probation, the termination of his . service during” or at the end of the period of probation will not ordinarily and by itself bea punishment, for the Government servant, so appointed, has no ‘right to continue to
~ hold such a post any more’ than the servant employed on 1 Pro*, bation by a private employer is entitled to-do. Such a termination does not operate-as a forfeiture’ of any right of the servant to-hold the post, for he has no such right and ebviously cannot, be a dismissal, removal ot. reduction in, rank by way of punishment...
rr
“tt does nots however, follow that; except 'in the three eases ~
. mentioned .above, in. all other cases, termination of service of a Government servant who has no right to his post, ¢.g., where he was appointed+to a post, temporary or permanent, either on probation or on an officiating. basis and had not | acquired a quasi-permanent status, the termination cannot, in any circumstances, be a. dismissal or removal from service, by way of punishment. bee eueeeddeeeatenaes renee beens
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 carries with - ‘it ‘no evil consequences and so Art. 311 is: not attracted.
But even if the Government has, by contract or under the .
~~ fules, the right to terminate the enployment without going . through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Govern: ment may, nevertheless, choose to punish the servarit and if the termination of service is sought-to be founded on mis- |
_ Cond uct, negligence, * inefliciency’ or other disqualification, then. it is a punishment and the ‘requirements of Art. 311 must be complied with.”
SUPREME COURT REPORTS [1984] 2 scp
Singh & Anr. V- State of Punjab™ decigeg er : ; The case of Shamsh of this Court directly deals with the case es by a Bench of seven Tite discharged from service without complying of a proba
; ‘cle 311(2) of the Constitution. In that case two Judicig] with Ane the Punjab Judicial Service were involved. For purpose. oo ies ent appeal it is sufficient if we refer to the case Pertaining of the p
; aterial time seryj al who was at the materia NE as a to Ishwar Chand Agarw Civil Service (Judicial Branch). By gy, meee Punjab ; ; probationer in the Punjal 1969 his services were terminated. The ted December 15, . order date did not contain any statetement which would attach an Stigma to the career of the officer concerned. It read as follows - °
“On the recommendation of the High Court of Punjab and Haryana, the Governor of Punjab is pleased to dispense with the services of Shri Ishwar Chand Agarwal, P.C.S. (Judicial Branch), with immediate effect, under Rule 7(3) in Part ‘D’ of the Punjab Civil Services (Judicial Branch) Rules, 1951, as amended from time to time’’.”’
Rule: 7(3) of the Punjab Civil Service (Judicial Branch) Rules, 1951 relied on in the above order provided that on the completion of the period of probation of any member of the service, the Governor . might on the recommendation of the High Court confirm him in his appointment if he was working against a permanent vacancy, or if his work or conduct was reported by the High Coart to be unsatisfactory, dispénse with his services or revert him to his former-sub- _ Stantive post, if any, or extend his period of probation and thereafter ‘ “pass such orders as he could have passed on the*expiry of the first period of probation. In this case Ray, C.J. observed in the course of his judgment ‘thus: |
“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 than 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 propoer enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may ina given case amount to removal from service within the meaning of Article 311(2) of the Constitution. ; :
es (1) (1975] 1 S.C.R, 814,
ANOOP JAISWAL VY. GOVT. OF INDIA (Venkataramiah, J.) 46!)
Refore a probationer is confirmed the authority concerned A is under an obligation to consider whether the work of the probationer 1s satisfactory or whether he is suitable for the post. Tn the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any termperamental or other obiect not involving moral turpitude the probationer B ‘@ unsuitable for the job and hence must be discharged.
No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving — C him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct of inefficiency or corruption, and if his services are terminated without following the provisions of Artiele 311(2) he can claim protection.” D Having said so, the learned Chief Justice proceeded to examine the facts of the case and found that an enquiry officer nominated by the Director of Vigilance had recorded statements of some witness€s behind the back of the offyeer concerned in respect of certain allegations of misconduct and had on that basis made a report to the High E Court and that the High Court had after accepting the said report, made a recommendation to the Governor to the effect that the officer was not a suitable person to be retained in service. The order of termination was because of the recommendations in the report. The the learged Chief Justice observed :
“The order of termination of the services of Ishwar Chand Agarwal is clearly by way of punishment in the facts and circumstances of the case. The High Court not only denied Ishwar Chand Agarwal the protection under Arti¢le 311 but also denied itself the dignified control over the subordinate judiciary. The form of the order is not decisive as to whether “G the order is by way of punishment. Even an innocuously worded order terminating the service may in the fact and
. circumstances of-the case establish that an enquiry into . allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision , H
311. In such a.case the simplicity of the form of
.
462 SUPREME COURT REPORTS A . | : the order will not give any sancity. That ts exactly what has happened in the case of Ishwar Chand Agarwal. The Order of termination ts illegal and must be set aside.” Krishna yer, J. who agreed with the learned Chief Justice had at the end of this judgment this to say - “Again, could it be that if you summarily pack off a 4 probationer, the order is judicially unscrutable and immune ? If you conscientously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils re of law, however harmlessly the order may be phrased ? And, so this sphinx-complex has had to give way in later cascs. X In some cases the rule of guidance has been stated to be f ‘the substance of the matter’; and the ‘foundation’ of the ; order. When does ‘motive’ trespass into ‘foundation’ ? ~ When do we lift the veil of form to touch the ‘substance’ ? D- ~ When the Court says So. These ‘Freudian’ frontiers obviously fail in the work-a-day wotld and Dre Tripathi’s observations in this context are not without force. He says:
“As already explained, in a situation where the order of termination, purports to be a mere order of discharge (A E without stating the *stigmatizing results of the depart- (FX mental enquiry a search for the ‘substance of the matter’ will be indistinguishable from a search for the motive (real, unrevealed object) of the order. Failure to appreciate . this relationship between motive (the real, but unrevealed object) and from (the apparent, oF. officially F . revealed object) in the present context has led to an unreal interplay of words and phrases wherein symbols Xe like ‘motive’, ‘substance’ ‘form’ or ‘direct’ parade in different combinations without communicating precise situations or entities in the world of facts.” ”
“am
G On behalf of the Union of India reliance has been placed on State of Punjab & Anr.v.Shri SukhRaj Bahadur, Union of India & Ors. v. B.S. Dhaba, State of Bihar & Ors.v.Shiva Bhikshuk Mishra,® B.S.
4 oH (1) [1968] 3 S.C.R. 234. yo: (2) (1969) 3 S.C.C. 603. a G) 1971] 2 SCR, 191.
% fh -
~ ANOOP JAISWAL ¥. GOVT. OF INDIA (Venkataramiah, J.) 463
Sialv. The State of U.P.&Ors."),State af U.P.v.RamChandraTri vedi and I.N. Saksena v. State of Madhya Pradesh. We have gone through these decisions. Except the case of Ram Chandra Trivedi (supra) all other cases referred to above were decided prior to the decisions in Shamsher Singh’s case (supra’ which is a judgment delivered by a Bench of seven Judges. As pointed out by us in all these cases including the case of Ram Chandra Trivedi (supra) the principle applied is the one enunciated by Parshotam Lal Dhingra’s case (supra) which we have referred to earlier. It is urged relying upon the observation in Shri Sukh Raj Bahadur’s case (supra) that it is only when there is a full scale departmental enquiry envisaged by Article 311(2) of the Constitution i.e. an enquiry officer is appointed, a charge sheet submitted, explanation called for and considered, any termination made thereafter will attract the operation.of Article 311(2).. It is significant that in the very same decision it is stated that the circumstances preceding or attendant on the order of termination of service have to be
‘ examined in each case; the motive behind it being immaterial.
As observed by. Ray, C.J. in Shamsher Singh’s case (supra) the form of the order is not decisive as to whether thé order is by way of punishment and that even an innocueusly worded order terminating . the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct — involving “stigma has been made in infraction of the provision of Article 311(2).
It is, therefore, now well: settled that where the form of the order is merely a camouflage for an order of dismissal ‘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. - ,
‘In the instant case, the. period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the’appellant regarding the alleged act of indiscipline, namely, arriving
(1) [1974] 3 S.C.R. 754, + (2) [1977] 1 S.O:R. 462. (3) [1967] 2 S.C.R. 496, Pi
Lo SUPREME COURT REPORTS late at the Gymnasium and acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant, only the case of the appellant was
" dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of, Even though the order of discharge may be non-committal, it
Cannot stand alone, Though the noting in the file of thé Government | may be irrelevant, the cause for the ofder cannot be ignored. The
Tecommendation of the Director which is the basis or foundation for the order should be read alongwith the order for the purpose of deter-
Mining its true character. If on reading the two together the Court.
teaches the -conclusion that the alleged act of misconduct-was the Cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground’as the appellant has not been afforded a reasonable
Opportunity to defénd himself as provided in Article 311(2) of the Constitution. . 7
The Union of India has placed before us all the relevant material
[1984] 2s.cRr.
including the recommendation of the Director, of the Natiorial Police
Academy that the appellant may be reinstated. In this case, as stated bationers.’ Explanations were received and all the probationers including the appellant were individually interviewed in order to ascertain’ facts, Explanation submitted by him and the answers given by others had weighed with the Director before making the recommen- dation to the Government of India on the basis of which action was takén. The only ground which ultimately prevailed upon the Director
- was that the appellant had ‘not shown any sign of, repentance without ' informing him that his case would be dealt with leniently if he showed any sign of repentance. In fact in the very. first reply he gave to the Director on being asked about the incident which took place on June
" 22, 1981, the “appellant stated ‘I sincerely regret the lapse,’ Neither in theletter which the Director first wrote to the Central Government nor in the counter affidavit filed in this Court, due importance has been given to the said expression of regret and it is further seen that above, explanation was called for form the appellant and other pro- no additional lapse on the part of the appellant between June 22, 1981 oo and the date on which the Director wrote the letter to the Central
Government, which would show that the appellant had not shown any sign of repentance i$ pointed out, although there is a reference to his reporting to duty late on an earlier date on June 1, 1981. On going through the above record before the Court and taking into
‘ e
“
>
-
Pal
«
\ af
XN
ANOOP JAISWAL, V. GOVT. OF INDIA (Venkataramiah, J) . 465 account all the attendant circumstances we are satisfied ‘that the Director wished to make the case of’ the appellant an example for othérs including those other probationers who were similarly situated so that they may learn a lesson therefrom:
A narration of the facts of the case leaves no doubt that the alleged act of misconduct on June 22, 1981 was the real foundation for the action taken against the appellant and that the other instances -
‘stated in the course of the counter affidavit are mere allegations which are put forward only for purposes of strengthening the defence which is otherwise ver; weak. The case is one which attracted Article 311(2) of the Constitution as the impugned order amounts to a termination of service by way of punishment and an enquirysshould have been heid in accordance with the said constitutional provision. That admittedly having not been done, the impugned order is liable to be
. Struck down. We accordingly set aside the judgment of the High
Court and the impugned order dated November 5, 1981 discharging the appellant from service. The appellant’ should now be reinstated in service with the same rank and seniority he was entitled to. before the impugned order was passed as if it had not been passed at all. He is also entitled to all consequential benefits including the approptiate year of allotment and the arrears of salary and allowances upto the date of his reinstatement, The appeal-is accofdingly allowed.
The appellant had to face this case just at the commencement of his career. We have allowed his claim in the name of the Constitution. This should help him to regain his spirit and also encourage
7. him to turn out to be a public servant in the true sense of that expression.
Having regard to the facts and circumstances of the case, we
‘feel that the parties should be. directed to bear their ewn costs.
HSK. 0. : Appeal allowed.