STATE OF UTTAR PRADESH versus BHOOP SINGH VERMA

STATE OF. UTTAR PRADESH

BHOOP SINGH VERMA January 24, 1979

[JASWANT SINGH, R. S. PATHAK AND A. P. SEN, JJ.]

Termination of simpUciter-No 1departmental enquiry is necessary under law in such cases.

The respondent was appointed as Sub-Inspector of police in temporary pool in 1955. He was discharged from service on July 13, 1957. 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. 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 appead. by special leave the Court,

HELD : 1. The considerations which prevailed with tho High Court in reaching its findings on the application of Article 311 (2) of the Constitution nnd the bona {ides of the superior authority in making the impugned order of tern1ination simpliciter are not warranted in law. [1130D1

2. The order terminating the services wa-; an order of termination simpli-citer 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, alJowed increment in pay and one month's salary in lieu of notice under the 'general rules for termination of services of temporary government serva-nts was also given. [1128F-G]

3. It 1'1as open to the superior authority to terminate the respondent's services on the ground on which it did so. And the eyidence disclosed no personal motive had influenced the order or th&t it was passed by way of punishment. departmenta) 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. [ll28H, 1129A, El

State vf U.P. v. Ram Chandra Trivedi', [1977] 1 SCR 462; Chan1pakTal Chi-manlal SIFJh v. The Union of India, [1964] 5 SCR 190, Jagdis!z Mitter v. Union of India, A.l.R. 1964 S.C. 449 and State of Puniab & Anr. v. Shri Sukh llai Bahadur, [1968] 3 SCR 234; referred to. Union of India & Ors. v. R. S. Dhaba, (1969] 3 SCC 603, Stme df Bihar & Ors. v. Shiva Bhikshuk Mishra [1971] 2 SCR 191 and R. S. Sial v. Th• State of U.P. and Ors., [1974] 3 SCR 754; applied.

The State of Hihar v. Gopi Kishore Prasad, A.l.R. 1960 SC 689 and . Madan Gopal v. The State of Punjab, (1963] 3 SCR 716; distinguished.

U. P. STATE v. BHOOP SINGH (Pathak, J.)

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 Res-pondent.

The Judgment of the Court was deliver,ed 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 second appeal arising out of suit for declaration.

The respondent was appointed as Sub-Inspector of Police in temporary post in 1955. He was discharged from service on July 13, 1957. writ petition filed by him in the Allahabad High Court was allowed on August 4, 1959, a'nd accordingly on December 15, 1959 he was reinstated in service. Thereafter, on January 21, 1960 his services were terminated by the Deputy lnspector General o[ Police, Agra Ran~, Agra.

On March 13, 1963 the respondent instituted· suit for declara-tion that the order dated January 21, 1960 was illegal and void and that he continued as Sub-Inspector of Police in the Uttar Pradesh Polio.e Service. It was alle~d that on false complaint made against him in respect of the custody and detention of one Smt. Phoolmati, an enquiry bad been made in cohsequence 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 tenninated 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 simple order of termination in order to avoid departmental enquiry under section 7 of th~ Police Act, which enquiry if held would l)ave enabled him to expose the falsity of the alleg:ations levelled against him. The suit was contested by the appellant, who maintaill".,,d that the termination of the respondent's services was not by way of punishment nor motivated by · malice, and that it was simple termination of the services of 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 &xond appeal. The High Court, in second appeal, took the view that whern ah enquiry was instituted by superior authority into misconduct alleged against govemn1ent

servant, the resulting termination of servioe was by way of punish-ment because it attached stigma or amoun~ed to reflection on the competence of the government servant and affected his future career. The High Court held that the fi'ndings recorded during the enquiry on the original complaint against the respondent were n~sponsible for the order terminating the respondent's services, and it affirmed ·that the order was vitiated by mala fides.

Attacking the findings of th;, High Court, learned counsel for the appellant contends that i:n the first place the order terminating the res-pondent's services had not been made by way of punishment, bu~ wa,; an order of termination simplicit•er 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 complai'nt against the respon-dent 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 res-D pondent 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 prcr posed to terminate the respondent's services, to institute proper and comple~e 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 respond•ent.We are of the opinion that the appellant is right on both counts. Considered &s 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 Gene-ral of Police made the impugned order subseqnently terminating his services on the gronnd 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 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 res-pondent's services on the ground on which it did so.

Assuming, howe.ver, that the impugned order was made in the back-ground of the allegations against the respondent concerning his behaviour with Smt. Phoolmati, we see no reason in law why departmental en-quiry should be necessary before the respondent's services could be ter-minated. It appears from the material before. us that it was merely 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 proceed-ings was instituted, no charge was framed, and the formal procedure charactedsing 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 reprehensible manner, was not likely to make useful police officer and was nnfit for further retention in disciplined force. The original order plainly attached 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 consiqered the res-pondent 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 re-ceived the report of the Superintendent of Police on the preliminary en-quiry made by him. There was nothing to pre.vent the Deputy Inspec-tor General from deciding that instead of instituting disciplinary proceed-ings 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(') and reference has been made in this behalf IQ Champaklal Chimanlal Shah v. The Union of India('), Jagdish Mitter v. Union of India(') and State of Punjab & Anr. v. Shri Sukh Raj Bahadur('). It is apparent from the facts of this case that if the impugned order be considered as made in the light of foe allegations against the respondent concerning the ·woman, the conduct of the respondent constituted 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.(') State o,I Bihar & Ors. v. Shive Bhikshuk Mishra(") and R. S. Sial v. The S.We of V.P. & Ors. ([7]) appears relevant. That it was not intended

(l) [1977] 1 S.C.R. 462. (2) .[1964] 5 S.C.R. 190. (3) A.I.R. 1964 S.C. 449. (4) [1968] 3 S.C.R. 234. (5) [1969[ 3 s.c.c. 603.

(6) 11971] 2 S.C.R. 191. (7) [l.9'14) 3 S.C.R. 754.

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113() SUPREME COURT REPORTS [1979] 2 S.C.R.

to take punitive action against the respondent for his misbehaviour with Smt. Phoolmati is evident from the circumstance that thereafter the rc·s-pondent 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 a·ssumed that the respondent's services were terminated as measure of punishment. The High Court relied on The State of Bihar v. Gopi Kishor'e Prasad(') and Madan Gopal v. The State of Punjab('). Both cases are distinguishable. In theformer, the govermnent servant was discharged from service because he was found to be corrupt and the or-der terminating his services branded him dishonest and incompetent officer. In the latter, the government ·servant had been served with 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 .

• 4 ppeal allowed.

(!)A:l.R.. 1960 s.c. C-39. (2) (1963]3 S.C R. 71 •