Nepal Singh v. State of Uttar Pradesh and Ors.

#### _i_ i ~ ' ~ _),_ ~· _J_ 613 NEPAL SINGH _v._ STATE OF UP. AND ORS. _April_ 15, 1980 [R. S. SARKARIA AND R. S. PATHAK, JJ.] _Termination Sinzpliciter-An order tetminating the services_ _of_ _a_ _te1nporary_ _.Government servant and ex-facie innocuous in that_ _it_ _does not cast any_ _stignuz_ _on_ _tile Government servant_ _or_ _visits him with penal consequences_ _a1nounts to termination_ _simpliciter-Order does_ _not contravene_ _Article_ 311 (2) _of_ _the Constitution_ _of_ _India_ 1950. The appellant was a temporary sub-inspector of Police. While he v.•as posted at Shahjahanpur the SuperintenUent of Police, Shahjahanpur con1menced disciplinary proceedings against him on the charge that he had violated Rule 29 of the U.P. Government Servants Conduct Rules, 1956 in as n1uch as without prior permission of the Government he had contracted a second marriage in November, 1964, while his first wife was alive. At the stage of evidence, the Deputy Inspector General of Police, Bareilly made an order on March 12, 1970 quashing the disciplinary proceedings on the ground that the offence has been committed at Pithoragarh, situated in a different police roang~, and therefore, the proceeding_s ta.ken against the appellant were ..... incompetcnt. 1\-feanwhile, on March 8, 1970, the Inspector General of Police, Uttar Pradesh, had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub-inspectors whose reputation and integrity \\'ere very low or who were generally involved in scandalous conduct, drinking, im morality or other acts injurious to the reputation of the Police Service or who were involved encouraging crime. The Superintendent o·f Police, Shahjahanpur included the name of the appellant in the list submitted by him. On April 27, 1970, the Dy. Inspector General of Police made an order terminating the services of the appellant, reciting that the services of the appellant ''are no more required and that he will be considered to have ceased to be in service .... '' The appell•ant filed a Writ Petition against the order tern1inating his services and claimed that the order contravened .A.rticle 311(2) of the Constitution inasmuch as it was an order in1posing the punishment of dismissal or rem9val from service without satisfying the conditions prescribed therein. Allegations of _fnala/i<Je_ were also iµade. The Writ Petition was dismissed. An appeal to the Division Bench was also dismissed. Hence the appeal by special leave. Dismissing the appeal, the Court. A B ## c D E F G }J.ELD : 1. It is now settied law that an order terminating the services of a temporary Government servant and _ex_ _facie_ innocuous in that it does not -cast any stigma on the Government ser\·ant or visits him with penal conse- B quences must be regarded as effecting a termination simpliciter, but if it is diseovered on the basis of material adduced that although innocent in its A B ## c D E G 614 SUPREME COURT REPORTS [1980] 3 s.c.R. terms the order was passed in fact 'vith a view to punishing the Government servant, it is a punitive order which can be passed only after complying with Art. 311(2) of the Constitution. [615H, 616A·B] 2. The question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by wa.y of punishment, and is merely an order of termination simpliciter, if the material against the Government servant on which the superior authority has acted constitutes the · motive and not the foundation for the order. The application of the test is not always easy. In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in ;elation to the post held by him it was intended simply to terminate his services. The function of the Court is to discover the nature of the order by attempting to ascertain \.Vhat was the motivating consideration in thf; mind of the authority which prompted !he order. [616B-E] In the instant case: (a) the appellant was a temporary Government servant, and the question whether he should be retained in service was u matter which arose directly during the drive instituted by the Inspector General of Police in March 1970 for weeding out Police Officers who were unsuitable or unfit to be continued in ser\·ice; (b) the material which the Superintendant of Police considered \Vas sufficient to lead to the conclusion that the appellant, who \Vas a tempofary Government seryant, was not suitable for being retained in service-his general character and conduct led to that impression and there was nothing to show that the impugned order was made by way of punishment; ( c) the circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment, and (d) the impugned order was not intended by way of punishment. [616£-G] _State_ _of_ _Maharashtra_ v. _Veerappa R. Saboii and Anr._ [1980] 1 S.C.R. 551· A.I.R. 1980 SC 42; applied. _State_ _of_ _Bihar and_ _Ors._ v. _Shiva Bhikshuk Mirnra,_ [1971] 2 S.C.R. 191; _State_ _of_ _U.P._ & _Ors._ v. _Sughar Singh_ [1974) 2 S.C.R 335 and _Regional_ _Manager_ & _Anr._ v. _Pawan_ _Kumar_ _Dubey;_ [1976) 3 S.C.R. 540; distinguished. C1v1L APPELLATE JurusDICTION : Civil Appeal No. 621 of 1973. From the Judgment and Order dated 13-3-1973 of the Allahabad ; High Court in Sp!. Appeal No. 9 /73). ~ _V._ _l._ _Francis_ for the Appellant. _0._ _P._ _Rana_ for the Respondent. The Judgment of the Court was deHvered by PATHAK, J. This appeal by special leave arises out of a writ petition H filed by a police officer aggrieved by the termination of his services. The appellant was a temporary Sub-Inspector of Police. He was posted at Sliahajahanpur in 1969. The Superintendent of Police, NEPAL S!NGHV. U.P. STATE _(Pathak,_ _J.)_ 615 Shahjahanpur commenced disciplinary proceedings against the appellant on the charge that he had violated Rule 29 of the U .P. Government Servants Conduct Rules, 1956 ;nasmuch as without prior permission of the Government he had contracted a second marriage in November, 1964, while his first wife was alive. The charge was denied by the appellant. The Superintendent of Police recorded evidence. But at this stage the Deputy Inspector General of Police Bareilly made an order ou March 12, 1970 quashing the disciplinary proceedings on the ground that the offence had been committed at Pithoragarh, s;tuated in a different police range, and therefore the proceedings taken against the appellant were incompetent. Meanwhile, on March 8, 1970, the Inspector General of Police, Uttar Pradesh, had issued a letter to all Superintendents of Police in the State directing them to submit a list of Sub-Inspectors whose reputation and integrity were very low or who were generally involved in scandalous conduct, drinking, immorality or other acts injurious to the reputation of the Police service or who were involved in encouraging crime. The Superintendent of Police, Shahjahanpur included the name of the appellant in the list submitted by him. On April 27, 1970, the Deputy Inspector General of Police made an order terminating the services of the appellant. The order recites that the services of the appellant, "are no more required and that he will be considered to ###### have ceased to be in service ........ " The appellant filed a writ petition against the order terminating his services, and claimed that the order contravened Article 311 (2) of the Constitution inasmuch as it was an order imposing the punishment of dismissal or removal from serrice without satisfying the conditions prescribed in that provision. It was also alleged that the order wa5 passed _mala_ _fide._ The writ petition was dismissed by a learned Single Judge of the Allahabad High Court. An appeal was dismissed by a Division Bench of the High Court on March 13, 1973. **A** **B** #### **c** **D** # ' In the appeal before us, it is urged for the appellant that the High Court was wrong in holding that the order terminating the appellant's **G** services was,not an order imposing a punishment. We are referred _.._ to the disciplinary proceedings instituted against the appellant in 1969 and it is submitted that although the order of termination does not refer to those proceedings and the charge on which they were commenced, the appellant's services were terminated with a view _to punish him for contracting a second marriage without prior permis- **H** sion of the Government. We are satisfied that the contention is without substance. It is now settled law that an order terminating the A B ##### c D E F G H 6i6 SUPREME COURT REPORTS [1980) 3 S.C.It. services of a temporary Government servant and _ex_ _facie_ inriocnous in that it does not cast my stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its terms the order was passed in fact with a view to punishing the Government servant, it is a punitive order which can be passed only after complying 'vith Article 311(2) of the Constitution. The scope _of_ the enquiry called foi: in such a case has been outlined by one of us in _State of Maharashtra_ v. _Veerappa R._ _Saboji and another.(')_ But the question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simpliciter; if the material against the Government servant on which the superior authority has acted constitutes the motive and not the foundation for the order. The application of the test is not always easy. In each case it is necessary to examine the. entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in relation to the post held by him it was intended simply to terminate his services. The function of the court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order. In the present appeal, the appellant was a temporary Government servant. The question whether he should be retained in service was a matter which arose directly during the drive instituted by the Inspector General of Police in March, 1970 for weeding out police officers who were unsuitable or unfit to be continued in service. The Superintendent of Poliee prepared a list of Sub-Inspectors functioning within his jurisdiction, and included the name of the appellant in that list. The material which he considered was sufficient to lead to the conclusion that the appellant, who was a temporary Government servant, was not suitable for being retained in service. His general character and conduct led to that impression. There is nothing to show that the impugned order was made by way of puniShment. The circumstance that a disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment. As we have observed, that is a conclusion which must follow from the nature of the intent behind the order. That intention can be discovered and proved, like any other (I) [1980] I S. C.R. 551-A.I.R. 1980 S. C. 42. J NEPAL SINGH _v._ U.P. STATE _(Pathak,_ _J.)_ 61 7 fact, from the evidence on the record. ln this case, it is not proved A that the impugned order was intended by way of punishment. Learned counsel for the appellant relies on _Stale of B ihar_ & _Ors._ v. _Shiva Bhikshuk Mishra(')_ and _State_ _of_ _Uttar Pradesh_ & _Ors._ v. _Sugher Singh.(_ _[2 ]_ _)_ Both were cases of permanent Government servants. And as regards _Regional Manager_ & _Anr._ v. _Pawan Kumar_ _Dubey,(')_ to which also reference has been made, that was a case where on the facts the Court found that there were no administrative reasons for the impugned reversion. The appeal fails and is dismissed, but in the circumstances there is no order as to costs. B ### c S. R. (I) [1971] 2 S. C.R. 191. (2) [1974] 2 S. C. R. 335 • - (3) [19761 3 S. _C:_ R. 540. _Appeal dismissed._