2. The appellant was enrolled as an Operator in the corps of Artillery of Indian Army on 27th September, 1980. Having served in that capacity for nearly 12 years, he received a show cause notice pointing out that he had been awarded four red ink entries for various offences set out in the notice and that the appellant had become a habitual offender thereby setting a bad example of indiscipline in the army. The notice, on that premise, called upon the appellant to show cause as to why he should not be discharged from service under Army Rule 13(III)(v) read with Army HQ letter No.A/15010/150/AG/PS-2(c) dated 28th December, 1988.- The grievance of the respondent in that case, primarily, rested upon the alleged excessive punishment meted out for the red ink entries suffered by him. The respondent also claimed to have been discriminated due to discharge from the Armed Forces. That was also not a case where discharge order was challenged as bad in law on the basis of irregularities nor was it a case where the authority was said to have failed to follow the necessary procedure. The decision of the High Court of Delhi in Surinder Singh v. Union of India (2003) 1 SCT 697, to the extent the same toes a line of reasoning different from the one adopted by us does not lay down the correct proposition and must, therefore, be confined to the facts of that case only. In the result this appeal succeeds and is hereby allowed. The order of discharge passed against the appellant is hereby set aside. Since the appellant has already crossed the age of superannuation, interest of justice will be sufficiently served if we direct that the appellant shall be treated to have been in service till the time he would have completed the qualifying service for grant of pension. No back wages shall, however, be admissible. Benefit of continuity of service for all other purpose shall, however, be granted to the appellant including pension. Monetary benefits payable to the appellant shall be released expeditiously but not later than four months from the date of this order. No costs.

                                             REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                      CIVIL APPEAL D.NO. 32135 OF 2015


Veerendra Kumar Dubey                        …Appellant

Versus

Chief of Army Staff & Ors.                   …Respondents




                               J U D G M E N T

T.S. THAKUR, J.

1.    This appeal under Section 31 of the Armed Forces Tribunal  Act,  2007,
is directed against a judgment and order dated 14th December 2011 passed  by
the Armed Forces Tribunal, Regional Bench at Lucknow  whereby  the  Tribunal
has dismissed Transferred Application No.16 of 2011 filed by  the  appellant
in the process affirming an order of discharge passed against the  appellant
by the competent authority under Rule 13(III)(v) of the Army Rules, 1954.
2.    The appellant was enrolled as an Operator in the  corps  of  Artillery
of Indian Army on 27th September, 1980. Having served in that  capacity  for
nearly 12 years, he received a show cause notice pointing out  that  he  had
been awarded four red ink entries  for  various  offences  set  out  in  the
notice and that  the  appellant  had  become  a  habitual  offender  thereby
setting a bad example of indiscipline in  the  army.  The  notice,  on  that
premise, called upon the appellant to show cause as to why he should not  be
discharged from service under Army Rule 13(III)(v) read with Army HQ  letter
No.A/15010/150/AG/PS-2(c) dated 28th December, 1988.
3.    The appellant submitted a reply to the show cause  notice  which  does
not appear to have cut any ice with the  competent  authority  resulting  in
his discharge  by  an  order  dated  14th  December,  1992.  Aggrieved,  the
appellant preferred an appeal before respondent  No.2  which  proved  of  no
avail. The authority in the meantime issued  a  discharge  order/certificate
of service on 15th October,  1993  which  the  appellant  challenged  in  MP
No.1980 of 1994 before the High Court of Madhya Pradesh  at  Jabalpur.  That
petition was dismissed by the High  Court  on  18th  January,  2006  on  the
ground of lack of territorial jurisdiction aggrieved whereof  the  appellant
filed Writ Appeal No.429 of 2006 which came to be transferred to  the  Armed
Forces Tribunal, Regional  Bench,  Lucknow  and  renumbered  as  Transferred
Application No.16 of 2011. The Tribunal by its order  dated  14th  December,
2011 has now dismissed the transferred petition giving rise to  the  present
appeal.
4.    The material facts are not in dispute. It is not in dispute  that  the
appellant had within a period of 12 years of the service  suffered  as  many
as four red ink entries. All these entries were awarded to  him  on  account
of overstaying leave for a period ranging between 29 days to  66  days.  The
fourth red ink entry was earned on account of a severe reprimand awarded  to
him by the Commanding Officer in August, 1992.  It is  noteworthy  that  the
first red ink entry was  made  on  25th  July,  1982,  the  second  on  28th
December, 1985, the third on 13th September,  1991  and  the  last  on  13th
August, 1992. It is also not in dispute  that  the  appellant  had  filed  a
reply to the show cause notice issued to him in which he had  explained  the
reasons for his overstaying the leave period  in  1982  and  attributed  his
failure to report back for duty to the medical condition of  his  wife.   In
regard to the second red ink entry he had offered an  explanation  based  on
his own illness and treatment in the  district  hospital.  So  also  he  had
offered explanations for the other two red ink entries.  These  explanations
notwithstanding the  competent  authority  decided  to  discharge  him  from
service without any enquiry whatsoever.
5.    Before the Courts below and so also before us, the competence  of  the
authority who discharged the appellant was not questioned by the  appellant.
 What was all the same argued at considerable length by learned counsel  for
the appellant was that the  availability  of  power  to  discharge  was  not
enough. What was equally important is whether the power was exercised  in  a
fair and  reasonable  manner  keeping  in  view  the  guidelines  which  the
Government  had  issued  for  such  exercise.  It  was  contended  that  the
Government had prescribed the procedure for the removal of  undesirable  and
inefficient JCOs, WO and ORs in terms of a  circular  dated  28th  December,
1988. The circular, it was contended, postulates not only  the  issue  of  a
show cause notice to  the  individual  concerned,  but  also  a  preliminary
enquiry before recommending  his  discharge  or  dismissal.  The  individual
concerned, it was argued, must have had an  adequate  opportunity  to  offer
his explanation and to produce evidence in his defence. Not  only  that  the
enquiry  ought  to  conclude  that  the  allegations   stood   substantiated
warranting  termination  of  service  of  the  delinquent.  The  fact   that
discharge from service, consequent upon an individual earning four  red  ink
entries is not mandatory.  This,  according  to  the  learned  counsel,  was
evident from a plain reading of the procedure prescribed  by  the  competent
authority.  It was also submitted that while  considering  the  question  of
retention or discharge  based  on  four  red  ink  entries,  the  Commanding
Officer was duty bound to consider not only the nature of the  offences  for
which such entries had been awarded but also  take  into  consideration  the
long service and the harsh conditions  to  which  the  individual  had  been
exposed during his tenure.  Discharge can under  the  guidelines  issued  by
the competent authority be ordered only where it is absolutely necessary  to
do so. The procedure prescribed by the competent authority for the  exercise
of the power of discharge under  Rule  13  was,  according  to  the  learned
counsel, observed but only in breach thereby rendering the discharge of  the
appellant illegal.
6.    On behalf of the respondent it was contended by  Mr.  Maninder  Singh,
Additional Solicitor General that Rule 13 of the Army Rules did not  provide
for any specific procedure to  be  followed  for  discharge  of  undesirable
persons or habitual offenders.  The procedure prescribed  for  the  exercise
of the power of discharge in terms  of  the  circular  relied  upon  by  the
appellant was, according to the  learned  counsel,  directory  and  did  not
create any right in the individual concerned to demand  an  enquiry  in  the
matter. The procedure was in any case de hors the provisions of Rule  13  of
the Army Rules, hence un-enforceable. Reliance in support  was  placed  upon
the decisions of this Court in Union of India  and  Ors.  v.  Corporal  A.K.
Bakshi and Anr. (1996) 3 SCC 65, Union of India  and  Ors.  v.  Rajesh  Vyas
(2008) 3 SCC 386, and Union of India and Ors. v. Deepak Kumar Santra  (2009)
7 SCC 370. Reliance was also placed upon a recent decision of this Court  in
Union of India v. Balwant Singh (Civil Appeal No. 5616 of 2015) and a three-
Judge Bench decision in Union of India and  Ors.  v.  Harjeet  Singh  Sandhu
(2001) 5 SCC 593 apart from a Division Bench decision of the High  Court  of
Delhi in Surinder Singh v. Union of India (2003) 1 SCT 697.
7.    Section 22 of the Army Act, 1950 provides that any person  subject  to
the said Act may be retired, released or discharged by  such  authority  and
in such manner as may be prescribed. Section 23 envisages  the  issue  of  a
certificate on termination of service to every junior commissioned  officer,
warrant officer, or enrolled person, who is dismissed, removed,  discharged,
retired or released from service.  Section  191  of  the  Act  empowers  the
Central Government to make rules for the purpose  of  carrying  into  effect
the provisions of the Act. The rules may, inter alia, provide  for  removal,
retirement, or release upon discharge from service  of  persons  subject  to
the rule. The Government has in exercise of that power  framed  Army  Rules,
1953, Rule 13(III)(v) whereof  applicable to the case at hand  empowers  the
Brigade and Sub Area Commander to direct such discharge after giving to  the
person whose  discharge  is  contemplated,  an  opportunity  to  show  cause
against the same provided the circumstances of the case permit the grant  of
such opportunity. Rule 13 (1), (2), (2A), (3)(III) and the Table  below  the
same are  extracted :
“13.  Authorities empowered  to  authorise  discharge  –  (1)  Each  of  the
authorities specified in column 3 of the Table below shall be the  competent
authority to discharge from service person subject to the Act  specified  in
column 1 thereof on the grounds specified in column 2.

(2)   Any power conferred by this rule on any of the  aforesaid  authorities
shall also be exercisable by any other authority Superior to it.

(2A)  Where the Central Government or the Chief of the Army  Staff  decides;
that any person or class or persons subject to the Act should be  discharged
from service,  either  unconditionally  or  on  the  fulfilment  of  certain
specified conditions,  then,  notwithstanding  anything  contained  in  this
rule, the Commanding Officer  shall  also  be  the  competent  authority  to
discharge from service such person or any person belonging to such class  in
accordance with the said decision.

(3)   In this table ”commanding officer” means the  officer  commanding  the
corps or department to which the person  to  be  discharged  belongs  except
that in the case of junior commissioned officers  and  warrant  officers  of
the Special Medical Section of  the  Army  Medical  Corps,  the  “commanding
officer” means the Director of the Medical Services, Army, and in  the  case
of junior commissioned officer and warrant officers of Remounts,  Veterinary
and Farms, Corps, the “Commanding  Officer”  means  the  Director  Remounts,
Veterinary and Farms.


                                    TABLE

|Category       |Grounds of       |Competent        |Manner of        |
|               |discharge        |authority to     |discharge        |
|               |                 |authorize        |                 |
|               |                 |discharge        |                 |
|1              |2                |3                |4                |
|Junior         | xxx xxx xxx     |xxx              |                 |
|Commissioned   |                 |                 |                 |
|officers       |                 |                 |                 |
|Warrant Officer| xxx xxx xxx     |xxx              |                 |
|Persons        |III.  (i) On     |Commanding       |                 |
|enrolled under |fulfilling the   |Officer in the   |                 |
|the Act who    |conditions of his|case of a person |                 |
|have been      |enrolment or     |of the rank of   |                 |
|attested       |having reached   |havildar (or     |                 |
|               |the stage at     |equivalent rank) |                 |
|               |which discharge  |where such person|                 |
|               |may be enforced. |is to be         |                 |
|               |                 |discharged.      |                 |
|               |                 |Otherwise than at|                 |
|               |                 |his own request  |                 |
|               |                 |and where the    |                 |
|               |                 |commanding       |                 |
|               |                 |officer below the|                 |
|               |                 |rank of          |                 |
|               |                 |Lieutenant       |                 |
|               |                 |Colonel, the     |                 |
|               |                 |brigade or sub   |                 |
|               |                 |Area Commander,  |                 |
|               |                 |(SRO 116/65      |                 |
|               |III.  (ii) On    |Commanding       |Applicable to    |
|               |completion of a  |Officer (in case |person enrolled  |
|               |period of army   |of the persons   |for both Army    |
|               |service only,    |unwilling to     |service and      |
|               |there being no   |extend their Army|Reserve Service. |
|               |vacancy in the   |Service)         |(A person who has|
|               |Reserve          |                 |the right to     |
|               |                 |                 |extend his Army  |
|               |                 |                 |service and      |
|               |                 |                 |wishes to        |
|               |                 |                 |exercise that    |
|               |                 |                 |right cannot be  |
|               |                 |                 |discharge under  |
|               |                 |                 |this head)       |
|               |III (iii) Having |Commanding       |To be carried out|
|               |been found       |Officer          |only on the      |
|               |medically unfit  |                 |recommendation of|
|               |for further      |                 |an Invaliding    |
|               |service          |                 |Board            |
|               |III (iv) At his  |Commanding       |The Commanding   |
|               |own request      |Officer          |officer will     |
|               |before fulfilling|                 |exercise the     |
|               |the conditions of|                 |power only when  |
|               |his enrolment    |                 |he is satisfied  |
|               |                 |                 |as to the        |
|               |                 |                 |desirability of  |
|               |                 |                 |sanctioning the  |
|               |                 |                 |application and  |
|               |                 |                 |the strength of  |
|               |                 |                 |the unit will not|
|               |                 |                 |thereby be unduly|
|               |                 |                 |reduced.         |
|               |III (v) All other|Brigade/Sub-Area |The Brigade or   |
|               |classes of       |Commander        |Sub Area         |
|               |discharge        |                 |Commander before |
|               |                 |                 |ordering the     |
|               |                 |                 |discharge shall, |
|               |                 |                 |if the           |
|               |                 |                 |circumstances of |
|               |                 |                 |the case permit  |
|               |                 |                 |give to the      |
|               |                 |                 |person whose     |
|               |                 |                 |discharge is     |
|               |                 |                 |contemplated an  |
|               |                 |                 |opportunity to   |
|               |                 |                 |show cause       |
|               |                 |                 |against the      |
|               |                 |                 |contemplated     |
|               |                 |                 |discharge.       |
|Persons        | xxx xxx xxx     |xxx              |                 |
|enrolled under |                 |                 |                 |
|the Act who    |                 |                 |                 |
|have not been  |                 |                 |                 |
|arrested       |                 |                 |                 |



8.    A plain reading of the above makes it abundantly clear that  the  rule
does not provide for  anything  beyond  an  opportunity  to  the  individual
concerned to show  cause  against  his  contemplated  discharge  before  the
competent authority passes any such order of discharge.  That a  show  cause
notice was  issued  to  the  petitioner  in  the  present  case  before  his
discharge is not denied.  On a strict  interpretation  of  Rule  13(III)(V),
therefore, one could perhaps say  that  the  letter  of  the  law  has  been
complied with inasmuch as an opportunity has been afforded to the  appellant
to show cause against the contemplated discharge. The question, however,  is
whether that was enough having regard to the procedure which the  Government
has stipulated for the  exercise  of  the  power  vested  in  the  competent
authority under Rule  13  of  the  Army Rules (supra). The  Government  has,
as rightly mentioned by learned counsel for the  appellant,  stipulated  not
only a show cause notice which is an indispensable part of  the  requirement
of the Rule but also an impartial enquiry into the allegations  against  him
in which he is entitled  to  an  adequate  opportunity  of  putting  up  his
defence and adducing evidence in support thereof. More importantly,  certain
inbuilt safeguards against discharge from service  based  on  four  red  ink
entries have also been prescribed. The first and foremost is an  unequivocal
declaration that mere award of four red ink entries to  an  individual  does
not make his discharge mandatory. This implies that four red ink entries  is
not some kind of laxman rekha, which if crossed would by itself  render  the
individual concerned undesirable or unworthy  of  retention  in  the  force.
Award of four red ink entries simply pushes the individual concerned into  a
grey area where he can be considered for  discharge.  But  just  because  he
qualifies for such discharge, does not mean that he must necessarily  suffer
that fate. It is one thing to qualify  for  consideration  and  an  entirely
different to be found fit for discharge. Four red ink entries in that  sense
takes the individual closer to discharge but does not push him over.  It  is
axiomatic that the Commanding Officer is,  even  after  the  award  of  such
entries, required to consider the nature  of  the  offence  for  which  such
entries have been awarded and other aspects made relevant by the  Government
in the procedure it has prescribed.
9.    We may at this stage gainfully extract the  relevant  portion  of  the
procedure prescribed for dismissal:
“Procedure for dismissal/discharge of Undesirable JCOs/WOs/OR:

4.    AR 13 and 17 provide that a JCO/WO/OR whose dismissal or discharge  is
contemplated will be given a show cause notice.  As an  exception  to  this,
services of such a person may be terminated without giving him a show  cause
notice provided  the  competent  authority  is  satisfied  that  it  is  not
expedient or reasonably practicable to service such  a  notice.  Such  cases
should be rare, e.g., where the interests of the security of  the  State  so
require.  Where the service of a show cause notice is  dispensed  with,  the
reasons for doing so are required to be recorded.  See proviso to AR 17.

5.    xxxxxxxxxxxxx

Preliminary Enquiry.  Before  recommending  discharge  or  dismissal  of  an
individual the authority concerned will ensure:-

that an impartial enquiry (not necessarily a  Court  of  Inquiry)  has  been
made into  the  allegations  against  him  and  that  he  has  had  adequate
opportunity of putting  up  his  defence  or  explanation  and  of  adducing
evidence in his defence.
that the allegations have been substantiated and that the  extreme  step  of
termination of the individual’s service is warranted on the  merits  of  the
case.

(f)   Final orders by the competent Authority. The  authority  competent  to
sanction the dismissal/discharge  of  the  individual  will  before  passing
orders reconsider the case in the light of the  individual’s  reply  to  the
show cause notice.  A person who has been served with a  show  cause  notice
for proposed dismissal may be ordered to be discharged if it  is  considered
that discharge would meet the requirements of the  case.  If  the  competent
authority considers that termination of  the  individual’s  service  is  not
warranted but any of the actions referred to in (b) to (d) of Para  2  above
would meet the requirements of the case, he  may  pass  orders  accordingly.
On the other hand, if the competent  authority  accepts  the  reply  of  the
individual to the show cause notice as entirely satisfactory, he  will  pass
orders accordingly.

Note:-1.    As far as possible, JCO, WO and  OR  awaiting  dismissal  orders
will not be allowed to mix with other personnel.
2.    Discharge from service consequent to four red ink  entries  is  not  a
mandatory or legal requirement.  In  such  cases,  Commanding  Officer  must
consider the nature of offences for  which  each  red  ink  entry  has  been
awarded and not be harsh with the  individuals,  especially  when  they  are
about to complete the pensionable  service.   Due  consideration  should  be
given to the long service, hard stations  and  difficult  living  conditions
that the OR has been exposed  to  during  his  service,  and  the  discharge
should be ordered only when it is absolutely necessary in  the  interest  of
service.  Such discharge should be approved by the next higher Commander.”


10.   A  careful  reading  of  the  above  would  show  that  the  competent
authority has made it abundantly  clear  to  officers  competent  to  direct
discharge that before discharging an individual, not only should there be  a
show cause notice but an enquiry  into  the  allegations  made  against  the
individual concerned in which  he  ought  to  be  given  an  opportunity  of
putting up his defence and that the  allegations  must  stand  substantiated
for a discharge to follow.
11.   Para 5(f)(2) (supra) underscores the importance  of  the  truism  that
termination of the individual’s service is an extreme step  which  ought  to
be taken only if the facts of the case so demand. What is evident  from  the
procedural mandate given to the authorities is to ensure that  discharge  is
not ordered mechanically and that the process leading to  the  discharge  of
an individual is humanized by the requirement of an impartial  enquiry  into
the matter and fair opportunity to  the  concerned  especially  when  he  is
about to complete his pensionable service. Equally significant is  the  fact
that  the  authority  competent  to  discharge  is  required  to  take  into
consideration certain factors made  relevant  by  the  circular  to  prevent
injustice, unfair treatment or arbitrary exercise of the  powers  vested  in
the Authority competent to discharge. For instance Note 2 to Rule 5  (supra)
requires the  competent  authority  to  take  into  consideration  the  long
service rendered by the individual, the hard stations he has been posted  to
and the difficult  living  conditions  to  which  the  individual  has  been
exposed  during  his  tenure.  It  is  only  when  the  competent  authority
considers  discharge  to  be  absolutely   essential   after   taking   into
consideration the factors aforementioned that discharge  of  the  individual
can be validly ordered.
12.   The argument that the procedure prescribed by the competent  authority
de hors the provisions of Rule 13 and the breach of  that  procedure  should
not nullify the order of discharge otherwise validly made has not  impressed
us.  It is true that Rule 13 does not in specific terms envisage an  enquiry
nor does it provide for consideration of factors to which we  have  referred
above. But it is equally true that  Rule  13  does  not  in  terms  make  it
mandatory for the  competent  authority  to  discharge  an  individual  just
because he has been awarded four red ink entries. The threshold of four  red
ink entries as a  ground  for  discharge  has  no  statutory  sanction.  Its
genesis lies in administrative instructions  issued  on  the  subject.  That
being so, administrative instructions  could,  while  prescribing  any  such
threshold as well, regulate the exercise  of  the  power  by  the  competent
authority qua an individual who qualifies  for  consideration  on  any  such
administratively prescribed norm. Inasmuch as the  competent  authority  has
insisted upon an enquiry to be conducted in which an  opportunity  is  given
to the individual concerned  before  he  is  discharged  from  service,  the
instructions cannot be faulted on the ground that the  instructions  concede
to the  individual  more  than  what  is  provided  for  by  the  rule.  The
instructions are aimed  at  ensuring  a  non-discriminatory  fair  and  non-
arbitrary application of the statutory rule.  It may have been  possible  to
assail the circular instructions if the same had taken away  something  that
was granted to the individual by the rule. That  is  because  administrative
instructions cannot make inroads into statutory  rights  of  an  individual.
But  if  an  administrative  authority  prescribes  a   certain   procedural
safeguard to those affected  against  arbitrary  exercise  of  powers,  such
safeguards or procedural equity and fairness will not fall foul of the  rule
or be dubbed ultra  vires  of  the  statute.  The  procedure  prescribed  by
circular dated 28th December, 1988  far  from  violating  Rule  13  provides
safeguards against an unfair and improper use of the  power  vested  in  the
authority, especially when even independent of the procedure  stipulated  by
the competent  authority  in  the  circular  aforementioned,  the  authority
exercising the power of discharge is expected  to  take  into  consideration
all relevant factors. That an individual has put in long  years  of  service
giving more often than not the best part of his life to armed  forces,  that
he has been exposed to hard stations and difficult living conditions  during
his tenure and that he may be completing  pensionable  service  are  factors
which the authority competent to discharge would have  even  independent  of
the procedure been required to take into consideration while exercising  the
power of discharge.  Inasmuch as the procedure stipulated specifically  made
them relevant for the exercise of  the  power  by  the  competent  authority
there was neither any breach nor any encroachment by executive  instructions
into the territory covered by the statute. The  procedure  presented  simply
regulates the exercise of power which would, but  for  such  regulation  and
safeguards against arbitrariness, be perilously close to being  ultra  vires
in that the authority competent to discharge shall, but for the  safeguards,
be vested with uncanalised and  absolute  power  of  discharge  without  any
guidelines as to the manner in which such power may be exercised.  Any  such
unregulated and uncanalised power would in turn offend  Article  14  of  the
Constitution.
13.   Coming then to the case at hand, we find that  no  enquiry  whatsoever
was conducted by the Commanding Officer at any stage against  the  appellant
as  required  under  para  5(a)  of  the  procedure  extracted  above.  More
importantly, there is nothing  on  record  to  suggest  that  the  authority
competent had taken into consideration the  long  service  rendered  by  the
appellant, the difficult living conditions and the hard  stations  at  which
he had served.  There is nothing on record to suggest  that  the  nature  of
the misconduct leading to the award of red ink entries was  so  unacceptable
that the competent authority had no option but to direct  his  discharge  to
prevent indiscipline in the force.  We must, in fairness, mention  that  Mr.
Maninder Singh, ASG, did not dispute the  fact  that  any  number  of  other
personnel are still in service no matter  they  have  earned  four  red  ink
entries on account of overstaying leave. If that be so, the  only  safeguard
against arbitrary exercise of power by the  authority  would  be  to  ensure
that there is an enquiry howsoever summary and a finding about  the  defence
set-up by the individual besides consideration of the factors made  relevant
under the note to para 5(f) of the procedure.  It is common  ground  that  a
red ink entry may be earned by an individual for overstaying leave  for  one
week or for six months. In either case the entry is  a  red  ink  entry  and
would qualify for consideration in the matter of discharge. If  two  persons
who suffer such entries are treated similarly  notwithstanding  the  gravity
of the offence being different, it would be unfair and unjust  for  unequals
cannot be treated as equals. More importantly, a  person  who  has  suffered
four such entries on a graver misconduct may escape discharge which  another
individual who has earned such entries for relatively  lesser  offences  may
be asked to go home prematurely. The unfairness in any such situation  makes
it necessary to bring in safeguards to prevent miscarriage of justice.  That
is precisely what the procedural safeguards purport to  do  in  the  present
case.
14.   Reliance upon the decisions of this Court in  the  cases  referred  to
earlier is, in our opinion, of no help to the respondent for the  same  have
not adverted to the procedure prescribed for the exercise of  the  power  of
discharge.   In Union of India v. Corporal A.K. Bakshi &  Anr.  (supra)  the
question before this Court was whether  an  order  of  discharge  passed  in
pursuance of the  Policy  for  Discharge  of  Habitual  Offenders  could  be
considered a discharge simplicitor as envisaged in  15(2)(g)(ii)  or  if  it
would tantamount to termination of service by way of punishment  under  Rule
18 of the said Rules. The Court  came  to  the  conclusion  that  it  was  a
discharge simplicitor and as such it could not be  held  as  termination  of
service by way of a punishment for misconduct. This was clearly not  a  case
where the procedure for discharge was not followed.  The Court had, in  that
case, unequivocally held that there was no dispute between the parties  that
the procedure had been duly  followed.   Similarly,  the  decision  of  this
Court in Union of India v. Rajesh Vyas (supra) is also distinguishable.   In
that case, the discharge order was challenged on  the  ground  that  it  was
passed without regard to the response to the show cause notice filed by  the
discharge order. Upon a perusal of the material, this Court  held  that  the
case was not one wherein the discharge order was passed without  application
of mind and that there was evidence to show that power  was  exercised  upon
consideration of all relevant records. The decision of this Court  in  Union
of India and Ors. v. Dipak Kumar Santra (supra) is also of no  relevance  to
the case at hand as that case dealt with a recruit who had failed  twice  in
clerks’ proficiency and aptitude test and was discharged  under  Rule  13(3)
of the Army Rules. Without adverting to the procedure  prescribed  for  such
removal, the discharge  was  maintained  by  this  Court  opining  that  the
discharging authority was empowered to do so under Rule 13(3)  of  the  Army
Rules. Reliance upon the recent judgment of this Court in Union of  India  &
Ors. v. Balwant Singh [Civil Appeal No. 5616 of  2015]  is  also  misplaced.
The grievance of the respondent in that case,  primarily,  rested  upon  the
alleged excessive punishment meted out for the red ink entries  suffered  by
him.  The  respondent  also  claimed  to  have  been  discriminated  due  to
discharge from the Armed Forces.  That was also not a case  where  discharge
order was challenged as bad in law on the basis of  irregularities  nor  was
it a case where the  authority  was  said  to  have  failed  to  follow  the
necessary procedure. The decision of the High Court  of  Delhi  in  Surinder
Singh v. Union of India (2003) 1 SCT 697, to the  extent  the  same  toes  a
line of reasoning different from the one adopted by us  does  not  lay  down
the correct proposition and must, therefore, be confined  to  the  facts  of
that case only.
15.   In the result this appeal succeeds and is hereby  allowed.  The  order
of discharge passed against the appellant is hereby set  aside.   Since  the
appellant has  already  crossed  the  age  of  superannuation,  interest  of
justice will be sufficiently served if we direct that  the  appellant  shall
be treated to have been in service till the time  he  would  have  completed
the qualifying service for grant of pension.  No back wages shall,  however,
be admissible. Benefit of  continuity  of  service  for  all  other  purpose
shall, however, be granted to  the  appellant  including  pension.  Monetary
benefits payable to the appellant shall be released  expeditiously  but  not
later  than  four  months  from  the  date  of   this   order.   No   costs.



                                                      ……………………………………….…..…J.
                                                               (T.S. THAKUR)




                                                      ……………………………………….…..…J.
                                                           (V. GOPALA GOWDA)



                                                      ……………………………………….…..…J.
                                                              (R. BANUMATHI)
New Delhi
October 16, 2015

whether the applicant was entitled to claim mesne profits at the rate of Rs.200/- p.m. Since the applicant was already awarded mesne profits at the rate of Rs.30/- p.m. with 10% increase every three years from the date of filing of suit till 21.08.1990 together with interest @ 12% at the amount accruing due month after month, which was not under challenge at the instance of respondents and hence the question was whether the applicant was entitled to claim mesne profits for the balance amount, i.e. Rs.170/- p.m. from the respondents. 32) It is this claim, i.e., Rs. 170/- p.m., which was given up by the applicant that being the subject matter of the petition which this Court recorded and accordingly disposed of the applicant’s petition by order dated 21.04.2009. 33) In our opinion, the order of this Court dated 21.04.2004 could not have been construed so as to deprive the applicant to claim mesne profits at the rate of Rs.30/- p.m. with 10% increase every three years from the date of filing of suit till 21.08.1990 together with interest @ 12% at the amount accruing due month after month from the respondent. Indeed, this claim which was already adjudicated in applicant’s favour by the Courts below and which was neither challenged by the respondents and nor was it the subject matter of dispute in applicant’s petition, the same could not be held to have been given up by the applicant by order dated 21.04.2009. It is a settled principle of law that only those issues could be given up by the party which are the subject matter of the lis before the Court. Since in the petition before this Court, the issue with regard to award of mesne profits at the rate of 30/- p.m. was not the subject matter at the instance of any party to the lis, the question of its giving up at the instance of the applicant did not arise. The order dated 21.04.2009, in our view, has to be interpreted keeping in view these background facts. 35) In the light of foregoing discussion, it is hereby clarified that the applicant’s right to claim mesne profits Rs.30/- p.m. with 10% increase every three years from the date of filing of suit till 21.08.1990 together with interest @ 12% at the amount accruing due month after month from the respondents, which has already been determined and awarded to the applicant and which was not the subject matter of the petition in this Court would remain intact for recovery from the respondents and is not affected in any manner by order dated 21.04.2009. In other words, it was not given up. I.A. No. 4 thus stands allowed. The order dated 21.04.2009 passed bythis Court is accordingly clarified.The Executing Court is, therefore, directed to take up the applicant’s execution application and decide the same in accordance with law in the light of clarification made hereinabove of the order dated 21.04.2009.

    REPORTABLE
                            IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

I.A.No. 4 of 2014

IN

        SPECIAL LEAVE PETITION (C) No.13915/2008)


Sant Ram                                       …….Applicant/
     Petitioner(s)

                             VERSUS

Dhan Kaur & Ors.                 ……Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    This is an application  filed  by  the  applicant-petitioner-in-person
under Order XVIII Rule 5 of the Supreme Court Rules, 1966  (for  short  ‘the
Rules’) for appeal against the order dated 13.02.2014  of  the  Registrar(J-
II)   refusing   to   register   the   application   (I.A.No.D.123226)   for
clarification/interpretation of this Court’s order dated  21.04.2009  passed
in SLP(c) No.13915 of 2008.
2)    This application was listed  for  appropriate  orders  on  01.07.2014.
This Court directed issuance of notice to the respondents. They were  served
and duly represented through counsel.
3)    On 09.10.2015, this Court requested Mr. D.N. Goburdhun, Advocate,  who
was present in Court, to assist the petitioner-in-person.
4)      We   heard   Mr.   D.N.   Goburdhan,   learned   counsel   for   the
applicant/petitioner and Mr. D.K. Thakur and Mr. Uma Datta  learned  counsel
for the respondents.
5)    In order to appreciate the issue involved in this application,  it  is
necessary to set out the relevant facts in brief infra.
6)    On 29.08.1966, Smt. Satyawati-the predecessor-in-interest and wife  of
the applicant herein, purchased a plot admeasuring 96 sq. yds. contained  in
Khasra No. 526/508/340 situated  at  Mauza  Shahdhawa,  Sarai  Rohilla,  New
Delhi for a consideration of Rs.4000/- through a registered sale  deed  from
one Shri Nakul Dev.  The said vendor had also  assigned  on  14.10.1966  the
right to recover damages because it was  noticed  that  the  predecessor-in-
interest of the respondents herein had encroached  a  portion  of  the  said
land and had also illegally constructed a room thereon.
7)    On 20.10.1966, the applicant’s wife instituted a suit being  Suit  No.
278 of 1966 in  the  Court  of  sub-Judge,  Ist  class,  Delhi  against  the
predecessor-in-interest of the respondents herein for possession of an  area
measuring 14’x9’ and damages for  the  period  29.08.1964  to  28.08.1966  @
Rs.200/- p.m.
8)    By judgment/decree dated 10.11.1967, the  Trial  Court  dismissed  the
said suit.
9)     Being  aggrieved  by  the  said  judgment/decree,  the  wife  of  the
applicant filed an appeal before the Additional District Judge, Delhi.   The
Additional District Judge, by order dated  07.06.1972,  allowed  the  appeal
and decreed the suit of the applicant for  recovery  of  possession  of  the
land and an amount of Rs.500/- towards the claim of mesne profits.
10)   Questioning the said order, the respondents filed second appeal  being
RSA No. 78 of 1972 before the High  Court  of  Delhi.   The  learned  Single
Judge of the High Court,  by judgment dated  26.05.1975,  allowed  the  same
and set aside the judgments  and  decrees  of  both  the  courts  below  and
remanded the matter to the Trial Court for determination  in  the  light  of
the observations made in the judgment.
11)   After remand, the Trial  Court,  by  its  judgment  and  decree  dated
20.10.1981, again decreed the suit in favour of the applicant  for  recovery
of vacant possession of the disputed land and awarded damages/mesne  profits
@  Rs.100/-  p.m.   from   the   date   of   filing   of   the   suit   till
realization/recovery with costs.
12)   The respondent, felt aggrieved, filed an appeal being Appeal  No.  135
of 1981.  The Additional  District  Judge,  by  judgment  and  decree  dated
13.12.1984, allowed the  same  and  dismissed  the  suit  of  the  applicant
herein.
13)   Being aggrieved, the applicant filed an appeal being R.S.A. No. 41  of
1985 before the High Court.  By order dated 03.02.1988, the  learned  Single
Judge of the High Court allowed the same and decreed the  suit  and  granted
one month’s time to  the  respondents  to  remove  the  room  or  any  other
encroachment on the suit land.  A decree for Rs.500/- was also passed  along
with interest @ 6% p.a. from the date of  institution  of  the  suit  up  to
realization and further directed to make an enquiry under Order XX  Rule  12
of C.P.C.  regarding  determination  of  mesne  profits  from  the  date  of
institution of the suit till delivery of possession.
14)   In pursuance of the order dated 03.02.1988 passed by the  High  Court,
the question of determination of the mesne profits came up before the  Court
of Civil Judge.  The Civil Judge, Delhi by order dated  24.02.2001  in  Suit
No. M-136/1996 fixed mesne profits as Rs.200/- p.m. from 20.10.1966 and  the
damages were enhanced 25% of  the  existing  rate  w.e.f.  20.10.1966  after
every three years.  The mesne profits were decreed up to 21.08.1990.
15)   Against the said order, the respondents filed an appeal  being  R.C.A.
No.9 of 2001 before the  A.D.J.  Delhi.   By  order  dated  04.01.2003,  the
appellate Court disposed of the appeal and directed the  appellants  therein
(respondents herein) to pay mesne profits to the applicant herein @  Rs.30/-
p.m. with 10% increase every three years from the date  of  filing  of  suit
till 21.08.1990 together with interest @ 12%  at  the  amount  accruing  due
month after month.  It was also held  that  the  Trial  Court  committed  an
error in determining mesne profits for the entire land whereas the  disputed
land was a piece of land measuring 14’x9’ only and not the entire land.
16)   Being aggrieved, the applicant filed a petition under Article  227  of
the Constitution being Civil Misc.(M) No. 135 of 2003 before the High  Court
of Delhi.  The learned Single Judge  of  the  High  Court,  by  order  dated
21.11.2005, dismissed the same.
17)   Challenging the said order, the applicant filed S.L.P.(c) No. 6927  of
2006 before this Court.  By order dated  05.02.2007,  this  Court  dismissed
the same.
18)   Thereafter, the applicant filed a review petition being R.A.  No.  340
of 2007 for review of order dated 21.11.2005  before  the  High  Court.   By
order  dated  03.01.2008,  the  learned  Single  Judge  of  the  High  Court
dismissed the same.
19)   Dissatisfied with  the  said  order,  the  applicant  had  filed  this
S.L.P., namely, S.L.P.(c) No. 13915 of 2008  before this Court.  During  the
pendency of the petition before this Court, possession was  handed  over  to
the applicant in 2009.
20)   On 21.04.2009, when the special leave petition was  being  heard,  the
amicus curiae appearing on behalf of the applicant submitted  to  the  Court
that the applicant does not want to press  the  prayer  for  mesne  profits.
Therefore, on that statement, this Court passed an  order  dated  21.04.2009
recording that statement and accordingly closed the matter.
21)   Thereafter, the applicant filed an application being  I.A.  No.  3  of
2009 before this Court for recalling the order dated  21.04.2009  passed  in
the SLP.   However, the said application was  dismissed  by  this  Court  on
26.04.2010.
22)   After  the  order  passed  by  this  Court,  the  applicant  filed  an
application being M-39/12 under Section 151 of  the  Civil  Procedure  Code,
1908 before the Civil Judge for complying with its  order  dated  24.02.2001
in Suit No. M-136 of 1996 and to execute the said order of mesne profits  as
confirmed by the High Court @ Rs.30  p.m.  with  10%  increase  every  three
years from the  date  of  filing  of  suit  till  21.08.1990  together  with
interest  @  12%  at  the  amount  accruing  month  after  month.   In  that
application, the respondents raised an objection by showing the order  dated
21.04.2009 passed by this Court recording therein that the applicant  herein
had given up his claim of mesne  profits.   On  that  basis,  the  Execution
Petition was dismissed.
23)   Against the said order, the applicant filed Civil Revision No. 118  of
2013 before the High Court.  On the basis  of  the  statement  made  by  the
applicant before this Court, the civil revision was dismissed  by  the  High
Court on 26.08.2013.
24)   Instead of challenging the said order, further the applicant filed  an
application   before    this    Court    being    I.A.    D.No.123226    for
clarification/interpretation of this Court order  dated  21.04.2009  stating
therein inter alia that on the date when the matter was listed, due to  non-
communication between him and the amicus  curiae,  he  could  not  give  any
instruction regarding the mesne profits to amicus curiae and  the  statement
given by the amicus curiae was on his own  and  lastly,  what  was  at  best
given up by the applicant was his right to  recover  mesne  profits  at  the
rate of Rs.170/- which were not awarded to him and for  which  the  petition
was filed and not what was already awarded to him by the Courts  below  i.e.
mesne profits at the rate of Rs.30/- p.m.  with  10%  increase  every  three
years from the  date  of  filing  of  suit  till  21.08.1990  together  with
interest @ 12% at the amount accruing due month after month.
25)   On 13.02.2014, the said application was listed  before  the  Registrar
(J-II)  for  registration.   However,  the  same  was  not  allowed  to   be
registered.
26)   With this background  facts,  the  applicant  filed  this  application
against the order dated 13.02.2014  of  the  Registrar  (J-II)  under  Order
XVIII Rule 5 of the Rules which was registered as I.A. No.4.
27)   Mr. D.N. Goburdhan, learned Counsel for the applicant, has urged  only
one contention. According to him, the Executing Court  and  the  High  Court
were not justified in dismissing the applicant’s  execution  application  on
the ground that the applicant having given  up  his  right  to  recover  the
mesne profits in terms of order dated 21.04.2009 of this Court had no  right
to recover mesne profits  at  all  from  the  respondents.  Learned  counsel
pointed out that the applicant had originally claimed mesne profits  at  the
rate of Rs.200/- p.m. whereas the Courts below awarded only at the  rate  of
Rs.30/-p.m. with 10% increase every three years from the date of  filing  of
suit till 21.08.1990 together with interest @ 12%  at  the  amount  accruing
due month after month and, therefore, the applicant was pursuing  his  claim
for the balance, i.e., Rs.170/- p.m. in the petition in  this  Court,  which
he gave up in the order dated 21.04.2009.  Learned  counsel  submitted  that
the claim therefore which was given up  in  this  Court  was  the  claim  in
relation to mesne profits for the balance amount, i.e., Rs.170/- p.m.  which
was not awarded by the Courts below. Learned counsel  submitted  that  there
was therefore no justification on the part of the courts  below  to  dismiss
the applicant’s execution  application  to  recover  mesne  profits  already
awarded by the courts below at the rate of Rs.30/- p.m.  with  10%  increase
every three years from the date of filing of suit till  21.08.1990  together
with interest @ 12% at the amount accruing due month after  month  from  the
respondents  by  placing  reliance  on  order  dated  21.04.2009.    Learned
counsel, therefore, prayed that this  Court  may  clarify  the  order  dated
21.04.2009 to this extent so as to  enable  the  applicant  to  recover  the
mesne profits at the rate of Rs.30/- p.m.  with  10%  increase  every  three
years from the  date  of  filing  of  suit  till  21.08.1990  together  with
interest @ 12% at the  amount  accruing  due  month  after  month  from  the
respondents.
28)   Learned counsel for the respondents supported the order  made  in  the
execution application and prayed for  dismissal  of  the  application  under
consideration.
29)   Having heard learned counsel for the parties and  on  perusal  of  the
record of  the  case,  we  are  inclined  to  allow  the  application  under
consideration.
30)   The order dated 21.04.2009 passed by this Court, which was made  basis
by the  two  courts  below,  for  dismissal  of  the  applicant’s  execution
application reads as under:
             “The  learned  senior  counsel  appearing  on  behalf  of   the
petitioner informed that in pursuance of the order dated  03.02.2009  passed
by this Court for execution of the decree obtained by the  petitioner,  with
police help the petitioner has obtained the possession of the property.

             Learned  senior  counsel  further  submitted  that  there   was
considerable difficulty in obtaining the possession of the property and  the
petitioner had to ultimately obtain possession by demolishing the wall  that
had been put up by the respondent in a portion of  the  Galli  (Lane)  which
was situated to the West of the property belonging to the petitioner.

            Learned counsel  for  the  respondent  stated  that  though  the
property of the  respondent  was  situated  to  the  South  of  petitioner’s
property, the respondent was also in occupation of a triangular  portion  of
the land to the West of the petitioner’s property.  Learned  Senior  Counsel
appearing for the petitioner pointed out that it could not be the  position,
as the western boundary of the petitioner’s property is clearly shown  as  a
Galli and not defendant’s property.

            In view of the delivery  of  possession  and  clearance  on  the
western side, the petitioner will report full  satisfaction  of  the  decree
before the Executing Court.

             The  learned  counsel  for  the  petitioner  states  that   the
petitioner does not want to press the prayer for mesne  profits.  Therefore,
this  special  leave  petition  is  closed  as  no  longer   surviving   for
consideration.”
                                 (emphasis supplied)


31)   As rightly urged  by  the  learned  counsel  for  the  applicant,  the
question before this Court was whether the applicant was entitled  to  claim
mesne profits at the rate of Rs.200/- p.m.  Since the applicant was  already
awarded mesne profits at the rate of Rs.30/- p.m. with  10%  increase  every
three years from the date of filing of suit till  21.08.1990  together  with
interest @ 12% at the amount accruing due month after month, which  was  not
under challenge at the instance of respondents and hence  the  question  was
whether the applicant was entitled to claim mesne profits  for  the  balance
amount, i.e. Rs.170/- p.m. from the respondents.
32)   It is this claim, i.e., Rs. 170/- p.m., which  was  given  up  by  the
applicant that being the subject matter of the  petition  which  this  Court
recorded and accordingly disposed  of  the  applicant’s  petition  by  order
dated 21.04.2009.
33)   In our opinion, the order of this Court  dated  21.04.2004  could  not
have been construed so as to deprive the applicant to  claim  mesne  profits
at the rate of Rs.30/- p.m. with 10% increase every  three  years  from  the
date of filing of suit till 21.08.1990 together with interest @ 12%  at  the
amount accruing due month after month from  the  respondent.   Indeed,  this
claim which was already adjudicated in  applicant’s  favour  by  the  Courts
below and which was neither challenged by the respondents  and  nor  was  it
the subject matter of dispute in applicant’s petition, the  same  could  not
be held to have been given up by the applicant by order dated 21.04.2009.
34)   It is a settled principle of law  that  only  those  issues  could  be
given up by the party which are the subject matter of  the  lis  before  the
Court.  Since in the petition before this Court, the issue  with  regard  to
award of mesne profits at the rate of 30/- p.m. was not the  subject  matter
at the instance of any party to the lis, the question of its  giving  up  at
the instance of the applicant did not arise.  The  order  dated  21.04.2009,
in our view, has to be interpreted keeping in view these background facts.
35)   In the light of foregoing discussion, it is hereby clarified that  the
applicant’s right to claim mesne profits  Rs.30/-  p.m.  with  10%  increase
every three years from the date of filing of suit till  21.08.1990  together
with interest @ 12% at the amount accruing due month after  month  from  the
respondents, which has already been determined and awarded to the  applicant
and which was not the subject matter of the petition  in  this  Court  would
remain intact for recovery from the respondents and is not affected  in  any
manner by order dated 21.04.2009. In other words, it was not given up.
36)   I.A. No. 4 thus stands allowed.  The order dated 21.04.2009 passed  by
this Court is accordingly clarified.
37)    The  Executing  Court  is,  therefore,  directed  to  take   up   the
applicant’s execution application and decide the  same  in  accordance  with
law in the light of  clarification  made  hereinabove  of  the  order  dated
21.04.2009.
38)   Before parting, we place  on  record  our  appreciation  to  Mr.  D.N.
Goburdhan, Advocate, who, on our request, assisted the applicant.

                       ………...................................J.
                              [J. CHELAMESWAR]


       .....……..................................J.
                             [ABHAY MANOHAR SAPRE] New Delhi;
      October 16, 2015.


-----------------------
18

It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench.Consequently, the appeal is allowed and the judgment and order passed by the Division Bench of the High Court is set aside and that of the learned Single Judge is upheld, though on different grounds. Accordingly, it is directed that the appellant be reinstated in service within a period of six weeks and he shall be entitled to 50% towards his salary which shall be paid to him within the said period. In the facts and circumstances, there shall be no order as to costs.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO.  8662 of  2015
                 (Arising out of S.L.P.(C) NO.8450 OF 2012)



Ratnesh Kumar Choudhary                    ...  Appellant

                                Versus

Indira Gandhi Institute of Medical
Sciences, Patna, Bihar and Others       ...  Respondent




                               J U D G M E N T



Dipak Misra, J.

Leave granted.
2.    The appellant, in pursuance of  the  advertisement  published  in  the
daily newspaper “Hindustan”  dated  13.08.1998,  applied  for  the  post  of
Physiotherapist under Class-II  Post  in  the  Indira  Gandhi  Institute  of
Medical  Sciences  (IGIMS).   The  selection  committee  of  the   institute
selected him for the appointment in the post as the  Chest  Therapist.   The
screening committee observed that the  post  of  Physiotherapist  and  Chest
Therapist are of similar nature and hence, the post of Chest  Therapist  may
be  considered  from   the   applications   received   for   the   post   of
Physiotherapist.  The selection  committee  consisted  of  Director  of  the
IGIMS, Medical Superintendent  and  a  Government  representative  from  the
Health Department, in  addition  to  internal  and  external  experts.   The
appellant along with other candidates were called for interview vide  letter
dated 02.12.1998 for the post of Physiotherapist/Chest Therapist.
3.    As the facts would exposit,  the  appellant  received  the  letter  of
appointment for the post of Chest Therapist on  14.01.1999  which  mentioned
that he had been selected for appointment to the sanctioned  post  of  Chest
Therapist and would be put on probation for a  period  of  two  years  which
could be extended at the discretion of the Director of  the  Institute.   It
also contained a condition that the services could be put an end to  at  any
time by giving a month’s notice by either side.  It also stipulated  certain
aspects which pertained to giving of notice and in lieu of  notice,  payment
or deposit of certain amount as the case may be. The  appellant  joined  the
post on 20.08.1999.
4.    When the appellant was continuing on the post of  Chest  Therapist,  a
complaint was received by the Vigilance Department, Government of  Bihar  on
3.11.2004 relating to the illegal appointment of the appellant on  the  post
of Chest Therapist.  The complaint  contained  that  the  advertisement  for
Physiotherapist and Chest  Therapist  were  different  because  streams  are
different and the appointment of the appellant was absolutely  illegal.   In
pursuance of the said complaint an  enquiry  was  conducted  by  the  Deputy
Superintendent of Police, who  submitted  a  report  on  03.11.2004  to  the
Deputy Inspector General of Police, Bihar, Patna.  The reports reflected  on
various aspects and pointed out that the appointment was  illegal.   On  the
basis of the said report the Joint Secretary in the  Department  of  Health,
vide order dated 09.03.2005 requested  the  Director  IGIMS  to  initiate  a
proceeding for termination of the services of  the  appellant  by  giving  a
show cause notice.  On the basis of the  said  communication  the  appellant
was asked by the Director of IGIMS to show cause within  three  days  as  to
why  on  account  of  illegal  appointment  his  services  should   not   be
terminated.  The petitioner sent his reply on 20.3.2005 and  asked  for  the
copy of the complaint  as  well  as  the  entire  report  submitted  by  the
Vigilance Department.
5.    Despite the request made by the appellant all the documents  were  not
supplied  to  him  which  the  appellant  considered  vital.   However,   he
submitted the reply on 08.04.2005 and  on  09.04.2005  the  Director  IGIMS,
terminated his services by stating that  his  appointment  on  the  post  of
Chest Therapist was illegal in  terms  of  the  investigation  done  by  the
Cabinet (Vigilance Department, Bihar) and the explanation furnished  by  him
in pursuance of the show cause notice had been found unsatisfactory.
6.    Taking exception to the aforesaid order of termination  the  appellant
invoked the writ jurisdiction of the High Court of Judicature  at  Patna  in
CWJC  No.  8069  of  2006.   The  learned  Single  Judge  vide  order  dated
04.11.2009 quashed the order of  termination  and  directed  that  appellant
should be treated in service with all consequential benefits.   The  learned
Single Judge, as is evident, quashed the  order  on  the  bedrock  that  the
appellant was all through kept in  the  dark  as  to  on  what  grounds  his
service had been terminated and  further  he  was  not  furnished  with  the
necessary documents which formed  the  part  of  enquiry  conducted  by  the
Cabinet, Vigilance Department. The learned Single Judge  opined  that  there
had been violation of the principles of  natural  justice  in  view  of  the
allegations made against the writ petitioner.
7.    Being dissatisfied with the order of the  learned  Single  Judge,  the
Institute and its Board of Governors preferred LPA No. 38 of  2010.   It  is
appropriate to  reproduce  certain  paragraphs  from  the  judgment  of  the
Division Bench:-
“5.    The  ground  of  illegality  in  appointment  is   based   upon   the
advertisement itself which has been  enclosed  to  the  memo  of  appeal  as
Annexure – 1.  Under the advertisement, eligible  candidates  were  required
to apply against various posts including post of Physiotherapist  at  serial
4 and post of Chest Therapist at serial 5. For the post of  Physiotherapist,
the essential qualification  was  degree/diploma  in  Physiotherapy  from  a
recognized institute whereas for the Chest Therapist it  was  degree/diploma
in Chest Therapy from recognized institute.  On  account  of  interview  and
selection, another person was appointed on the post of  Physiotherapist  and
although the writ petitioner did not have degree/diploma  in  Chest  Therapy
he  was  appointed  to  the  post  by  relaxing   the   required   essential
qualification by the committee.  The committee took the view that  both  the
posts   involve   similar   duties   and,   therefore,   degree/diploma   in
Physiotherapy could be sufficient for  appointment  to  the  post  of  Chest
Therapist.
6. In our considered view, the authorities of the  Vigilance  Department  as
well as the Institute have subsequently come to a correct finding that  such
a course of action was  not  open  for  the  selection  committee.   If  the
essential qualification for the post of Chest Therapist was  to  be  lowered
down or changed, due advertisement of such change in policy was required  to
be  made  so  that  for  the  post  of  Chest  Therapist   those   who   had
degree/diploma in Physiotherapy could have filed their  applications.   This
was not done by  the  concerned  authorities  at  the  relevant  time.   The
relaxation in the essential  qualification  thus  benefited  only  the  writ
petitioner and none else.  In such circumstances,  it  is  not  possible  to
hold that the selection and appointment  of  the  writ  petitioner  was  not
illegal.   The  constitutional  mandate  of  giving  similar  treatment  and
opportunity to others was clearly violated.
                                  * * * * *
8. We are also of the considered view that in a case of illegal  appointment
there is no scope to condone such appointment on the plea that no fraud  has
been alleged against the beneficiary of such appointment.”

Being of this view the Division Bench allowed the appeal and  unsettled  the
decision rendered by the learned Single Judge.
8.    We have heard    Mr. Kumar Parimal learned counsel for  the  appellant
and Mr. L.R. Singh learned counsel for the State.
9.    Though various contentions were raised  by  the  learned  counsel  for
both the parties, yet ultimately the controversy centred around  the  issues
whether the order of termination passed by the  authority  is  stigmatic  or
not; and whether there had been violation of principles of natural  justice,
for no regular enquiry was conducted.  Learned  counsel  for  the  appellant
has drawn our attention to the Vigilance Report  dated  03.11.2004  and  the
show cause notice dated 18.03.2005.   In  the  course  of  hearing,  we  had
perused the documents in original that are in Hindi, and asked  the  learned
counsel for the parties to file the English translation  thereof  which  has
been complied with.   The  relevant  part  of  the  vigilance  report  dated
03.11.2004 is reproduced below:-
“Shri Ratnesh Kumar Chawdhary appointed  illegally  on  the  post  of  Chest
Therapist began to work in Chest Therapist Department.  But  he  was  having
no experience of working on the  post  of  Chest  Therapist,  therefore  his
behaviour with the patients admitted in the hospital was not  congenial  and
correct and he had no knowledge  of  working,  therefore,  his  Officer  In-
charge issued warning from time to time and wrote to the  Director  to  take
action against him.  His  work  being  unsatisfactory,  many  warnings  were
issued to him, explanation was called  and  punishment  was  given.   During
investigation his work was  found  to  be  totally  unsatisfactory  and  his
conduct was not  proper.   During  the  inquiry  conducted  against  charged
officer, Medical Superintendent (Medicines)  wrote  in  his  inquiry  report
that the written warning has been  given  to  the  Chest  Therapist  by  the
President and Director of Administrative Officers Union that if he does  not
make necessary improvement, then his services may be  terminated  from  this
Establishment.  “As well as the order of punishment of withholding  his  two
annual increments with cumulative effect was passed by  I.G.I.M.S.  for  his
indiscipline in the service  and  warning  was  issued,  if  in  future  any
complaint is received then his services may be terminated”.   Despite  that,
there was no improvement in this official.  As a result of which,  President
Administrative body  was  authorized  to  constitute  an  inquiry  committee
according to Resolution No.71/1047 made in 71st Meeting dated 02.12.2003  of
Administrative  Body  of  I.G.I.M.S.  Patna.    For   constituting   Special
Committee, the proposal was  sent  to  then  President,  Health  Department.
71st Meeting of Administrative Body was organized under the Chairmanship  of
Hon’ble Dr. Shakil Ahmad,  Health  Minister  in  which  seven  other  doctor
members in addition to the Director participated.

The file of all papers relating to the charged officer was sent in  2003  to
then  Health  Minister,  the  President  of  I.G.I.M.S.  Patna.    In   this
connection, no information as to what action was taken on  those  papers  is
not available in I.G.I.M.S. Patna.  Director of aforesaid establishment  Dr.
Deleep Kumar Yadav stated in his statement that  the  charged  officer  Shri
Ratnesh Kumar Chowdhury was appointed on the post of Chest Therapist by  the
Selection Committee.  Complaints were  received  against  him.   Dr.  Deleep
Kumar Yadav, Director of above establishment, according to  his  competence,
took disciplinary action at this stage against the charged officer.  But  in
connection with illegal appointment, it was not possible to take any  action
at this stage as his appointment is within  the  jurisdiction  of  permanent
Selection Committee.  He also made it clear  that  the  conduct  of  charged
officer was not correct.  As a result of  which  there  was  always  dispute
with his In-charge Dr. Sudhir Kumar.   Due  to  his  unlawful  conduct,  Dr.
Sudhir Kumar, Neurologist, I.G.I.M.S. Patna left from there in 2003.”

10.   After so narrating, the report proceeded to state thus:-
“In this way, during inquiry it becomes clear that necessary  qualifications
and standards were prescribed for the post of Physiotherapist  and  for  the
post of Chest Therapist in the advertisement published in  this  connection.
It is nowhere marked  in  the  advertisement  that  if  the  application  of
separate  eligibility  holders  against  both  aforesaid   posts   are   not
available, then any one from the said candidates in the Panel List shall  be
taken  into  consideration  for  the   appointment.    Despite   that,   the
appointment  of  the  applicant  for  the  post  at  Serial  No.04  in   the
advertisement, was made on the post  given  at  serial  No.05,  whereas  the
applicant neither applied for the post, nor  he  had  eligibility  for  that
post.  Without making any comment by the Selection Committee,  Shri  Ratnesh
Kumar Chowdhary was appointed on the post of Chest Therapist  and  to  prove
this illegal appointment as genuine appointment,  the  Establishment  issued
the appointment letter in which it is mentioned that the appointment of  the
applicant is being made on the post, applied for, by the applicant,  on  the
post of Chest  Therapist,  which  was  absolutely  wrong.   Therefore,  this
illegal appointment may be cancelled.   The  information  of  which  may  be
given to the Administrative Department of the charged employee.”

11.   On the basis of the aforesaid report, a show cause notice was  issued.
 The said show cause notice issued to the appellant  on  18th  March,  2005,
reads as follows:-
“Your  appointment  was  made  on  the  post  of  Chest  Therapist  in  this
establishment.  Shri Tarkeshwar Singh,  Member  Bihar  Legislative  Assembly
made some allegations in  his  complaint  letter.   Those  allegations  were
examined by Cabinet Vigilance Department.  According  to  the  report  filed
under Letter No. 724/G.O. dated 24.12.2004 of Cabinet Vigilance  Department,
Investigation   Bureau,   Bihar,   Patna,   your   appointment   was   found
illegal/wrong.  Report of Cabinet Vigilance  Department  was  considered  by
the Health Department and decision was  taken  to  terminate  your  service.
The department issued direction to take action  to  terminate  your  service
vide Letter No.1/9/2005/78(1)Swa. Dated 08.03.2005.  Therefore  submit  your
explanation within three days to the undersigned as to why your  appointment
which is illegal/wrong be not terminated from the Institute.”

12.   As has been stated earlier a reply was filed by  the  appellant  which
was  not  accepted  and,  eventually,  he  was  served  with  the  order  of
dismissal.  At this juncture, it  is  necessary  to  refer  to  the  counter
affidavit filed in  the  present  case.   In  paragraph  3  of  the  counter
affidavit, the respondents have stated certain facts. The relevant  part  of
the said assertion is reproduced below:-
“That even after being appointment,  while  serving  during  the  period  of
probation, Petitioner had misbehaved with his seniors and he  did  not  obey
the seniors.   He  also  quarrelled  with  his  colleagues  for  which  many
complaints were received against  him.   However  during  probation  period,
petitioner was given warning and on  29.1.2001  his  yearly  increments  was
withheld.  Petitioner continued to work on probation till the  date  of  his
dismissal and he was never made permanent.”

13.   In the counter affidavit a reference  has  been  made  to  the  report
submitted against the appellant by the Cabinet (Vigilance)  Department,  the
relevant part of which we have quoted hereinbefore.
14.   It is submitted by the learned counsel for the  appellant  that  on  a
perusal of the report along with allegations made in the counter  affidavit,
it is graphically clear that the termination  of  the  appellant  is  not  a
termination simpliciter.  The report comments on  his  behaviour,  knowledge
of  working,  his  conduct,  his  mis-behaviour,   imposition   of   earlier
punishment and disobedience shown by him to his seniors.   It  is  urged  by
the learned counsel that though the appellant  was  a  probationer  and  his
appointment has been styled as  illegal  on  the  ground  that  he  did  not
possess the requisite qualification for the post  of  Chest  Therapist,  yet
under the  guise  of  passing  an  order  of  termination  simpliciter,  the
authorities have, in many a way,  attached  stigma  which  makes  the  order
absolutely stigmatic.  It is  canvassed  by  him  that  even  if  the  order
demonstrably appears to be an innocuous order,  the  court  in  the  in  the
obtaining factual score should lift the veil or peep  through  the  veil  to
perceive its true character.
15.   The aforesaid  submissions  have  been  controverted  by  the  learned
counsel for the respondents.
16.   To appreciate the controversy, we may  refer  to  certain  authorities
which are pertinent to appreciate the controversy.        In  Samsher  Singh
v. State of  Punjab[1],  a  seven-Judge  Bench  was  considering  the  legal
propriety of the discharge of two judicial officers of the  Punjab  Judicial
Service who were serving as probationers.  The majority laying down the  law
stated that:-
“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  proper  enquiry  and  without  his  getting  a  reasonable
opportunity of showing cause against his discharge it may in  a  given  case
amount to removal from service within the meaning of Article 311(2)  of  the
Constitution.”

And again:-

“The form of the order is not decisive as to whether the order is by way  of
punishment. Even an innocuously worded order terminating the service may  in
the facts 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. In such a  case
the simplicity of the form of the order will not give any sanctity. That  is
exactly what has happened in the case of Ishwar Chand Agarwal. The order  of
termination is illegal and must be set aside.”

17.   In Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation  Ltd.
and Another[2], the services of the appellant were terminated as  he  was  a
probationer.   He  challenged  the   order   of   termination   before   the
Administrative  Tribunal,  Lucknow,   U.P.,   alleging   that   though   the
termination order appeared to  be  innocuous,  it  was  really  punitive  in
nature, inasmuch as it was based on an  ex-parte  report  of  enquiry  which
indicated that he had accepted the bribe and, therefore, it was  not  merely
the motive, but the very  foundation  of  the  order  of  termination.   The
tribunal allowed the application of the appellant and quashed the  order  of
termination.  The High Court in the writ petition, placing reliance  on  the
decisions rendered in State of U.P. vs. Kaushal Kishore  Shukla[3],  Triveni
Shankar Saxena vs. State  of  U.P.[4]  and  State  of  U.P.  vs.  Prem  Lata
Misra[5], came to hold that the order of termination had  not  been  founded
on any misconduct, but on the other hand, the competent authority had  found
that the employee was not fit to be  continued  in  service  on  account  of
unsatisfactory work and conduct.  The High Court also observed that even  if
some ex-parte preliminary enquiry  had  been  conducted  or  a  disciplinary
enquiry was initiated to inquire into some misconduct, it was the option  of
the competent authority to withdraw the disciplinary  proceedings  and  take
the action of termination of service under the terms of appointment and  the
same would not be by way of punishment.  This Court  after  taking  note  of
the submissions of the learned counsel for the parties posed  the  following
question:-
“Whether the report of Shri Ram Pal  Singh  was  a  preliminary  report  and
whether it was the motive or the foundation for the  termination  order  and
whether it was permissible to go behind the order?”

18.   This Court noticed that  there  are  two  lines  of  authorities.   In
certain cases of temporary servants and probationers, it had taken the  view
that if the ex-parte enquiry or report is the  motive  for  the  termination
order, then the termination is not to be called punitive merely because  the
principles of natural justice have not been followed; and in the other  line
of decisions, this Court has  ruled  that  if  the  facts  revealed  in  the
enquiry are not the motive but the foundation for  the  termination  of  the
services of the temporary servant or probationer, it would be  punitive  and
principles of natural justice are bound to be followed and failure to do  so
would make the order legally unsound.  The Court referred to  the  judgments
rendered in Samsher Singh  (supra),  Parshotam  Lal  Dhingra  vs.  Union  of
India[6], State of Bihar vs. Gopi Kishore Prasad[7] and State of Orissa  vs.
Ram Narayan Das[8] and, eventually, opined that if there was any  difficulty
as to what was “motive” or “foundation” even after the Samsher Singh’s  case
the said doubts were removed in Gujarat Steel Tubes Ltd. vs.  Gujarat  Steel
Tubes Mazdoor Sabha[9].  The clarification given by the  Constitution  Bench
in the said case, being instructive,  the  two-Judge  Bench  reproduced  the
same, which we think we should do:-
“53.  Masters and servants cannot be permitted to play hide  and  seek  with
the law of dismissals and the plain  and  proper  criteria  are  not  to  be
misdirected by terminological cover-ups or by appeal  to  psychic  processes
but must be grounded on  the  substantive  reason  for  the  order,  whether
disclosed or undisclosed. The Court will find out from other proceedings  or
documents connected with the formal  order  of  termination  what  the  true
ground for the termination  is.  If,  thus  scrutinised,  the  order  has  a
punitive flavour in cause or consequence,  it  is  dismissal.  If  it  falls
short of this test, it cannot be called a punishment.  To  put  it  slightly
differently, a termination effected because the master is satisfied  of  the
misconduct and of the consequent desirability of terminating the service  of
the delinquent servant, is a dismissal, even if he had the right in  law  to
terminate with an innocent order under  the  standing  order  or  otherwise.
Whether, in such a case the grounds are recorded in a  different  proceeding
from the formal order does not detract from its nature. Nor the  fact  that,
after being satisfied of the guilt, the  master  abandons  the  enquiry  and
proceeds to terminate. Given an alleged misconduct and a live nexus  between
it and the termination of service the conclusion is dismissal, even if  full
benefits as on simple termination, are given and  non-injurious  terminology
is used.

54.   On the contrary, even if there is suspicion of misconduct  the  master
may say that he does not wish to bother about it and may  not  go  into  his
guilt but may feel like not keeping a man he is not happy with. He  may  not
like to investigate nor take the risk of continuing a dubious servant.  Then
it is not dismissal but termination simpliciter, if no injurious  record  of
reasons or punitive pecuniary cut-back on  his  full  terminal  benefits  is
found. For, in fact, misconduct  is  not  then  the  moving  factor  in  the
discharge. We need not chase other hypothetical situations here.”

19.   On that basis, the Court proceeded to opine thus:-
“In other words, it will be a case of motive if the master, after  gathering
some prima facie facts, does not really wish to  go  into  their  truth  but
decides merely not to continue a dubious employee. The master does not  want
to decide or direct a decision about the truth of the  allegations.  But  if
he conducts an enquiry only for the purpose of proving  the  misconduct  and
the employee is not heard, it is a case where the enquiry is the  foundation
and the termination will be bad.”

20.   After stating the said principle, the Court  traced  the  history  and
referred to Anoop Jaiswal vs. Govt. of India[10], Nepal Singh vs.  State  of
U.P.[11] and  Commissioner,  Food  &  Civil  Supplies  vs.  Prakash  Chandra
Saxena[12] and opined as follows:-
“33.  It will be noticed from the above decisions that  the  termination  of
the services of a temporary servant or one on probation,  on  the  basis  of
adverse entries or on the basis of  an  assessment  that  his  work  is  not
satisfactory will not be punitive inasmuch as the  above  facts  are  merely
the motive and not the foundation. The reason why they  are  the  motive  is
that the assessment  is  not  done  with  the  object  of  finding  out  any
misconduct on the part of the officer, as stated by Shah,  J.  (as  he  then
was) in Ram Narayan Das case. It is done only with a view to decide  whether
he is to be retained or continued in service. The position is not  different
even if a preliminary enquiry is held because the purpose of  a  preliminary
enquiry is to find out if there is  prima  facie  evidence  or  material  to
initiate  a  regular  departmental  enquiry.  It  has  been  so  decided  in
Champaklal case. The purpose of the preliminary enquiry is not to  find  out
misconduct on the part of the officer and if a termination  follows  without
giving an opportunity, it will not be bad. Even in a case  where  a  regular
departmental enquiry is started, a charge-memo issued, reply  obtained,  and
an enquiry officer is appointed — if at that point of time, the  enquiry  is
dropped and a simple notice of termination is passed, the same will  not  be
punitive because the enquiry officer has not  recorded  evidence  nor  given
any findings on the charges. That is what is held in Sukh Raj  Bahadur  case
and in Benjamin case. In the  latter  case,  the  departmental  enquiry  was
stopped because the employer was not sure of establishing the guilt  of  the
employee. In all these cases, the allegations against  the  employee  merely
raised a cloud on his conduct and as pointed by Krishna Iyer, J. in  Gujarat
Steel Tubes case the  employer  was  entitled  to  say  that  he  would  not
continue an employee against whom allegations were made the truth  of  which
the employer was not interested to  ascertain.  In  fact,  the  employer  by
opting to pass a simple order of termination as permitted by  the  terms  of
appointment or as permitted by the rules was conferring  a  benefit  on  the
employee by passing a simple order  of  termination  so  that  the  employee
would not suffer from any stigma which would  attach  to  the  rest  of  his
career if a dismissal or other punitive order was passed. The above are  all
examples where the allegations whose truth has  not  been  found,  and  were
merely the motive.

34.   But in cases where the termination  is  preceded  by  an  enquiry  and
evidence is received and findings as to misconduct of  a  definitive  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  will  be
violative of the principles of natural justice inasmuch as  the  purpose  of
the enquiry is to find out the truth of  the  allegations  with  a  view  to
punish  him  and  not  merely  to  gather  evidence  for  a  future  regular
departmental enquiry. In such cases, the termination is  to  be  treated  as
based or founded upon misconduct and will be punitive. These  are  obviously
not cases where the employer feels that there is a mere  cloud  against  the
employee’s conduct but are cases where the employer has  virtually  accepted
the definitive and clear findings of the  enquiry  officer,  which  are  all
arrived at behind the back of the employee — even though such acceptance  of
findings is not recorded in the  order  of  termination.  That  is  why  the
misconduct is the foundation and not merely the motive in such cases.”

21.   Appreciating the facts of the said  case,  the  Court  set  aside  the
judgment of the High Court and restored that  of  the  tribunal  by  holding
that the order was punitive in nature.
22.   In Chandra Prakash Shahi  vs.  State  of  U.P.  and  Others[13]  after
addressing  the  history  pertaining  to  “motive”  and   “foundation”   and
referring to series of decisions, a two-Judge Bench had held that:-
“28.   The important principles  which  are  deducible  on  the  concept  of
“motive” and “foundation”, concerning a probationer, are that a  probationer
has no right to hold the post and his services  can  be  terminated  at  any
time during or at the end of the period of probation on account  of  general
unsuitability for  the  post  in  question.  If  for  the  determination  of
suitability of the probationer for the post in question or for  his  further
retention in service or for confirmation, an inquiry is held and  it  is  on
the basis of that  inquiry  that  a  decision  is  taken  to  terminate  his
service, the order will not  be  punitive  in  nature.  But,  if  there  are
allegations of misconduct and an inquiry is held to find out  the  truth  of
that misconduct and an order terminating the service is passed on the  basis
of that inquiry, the order would be punitive in nature as  the  inquiry  was
held not for assessing the general suitability of the employee for the  post
in question, but to find out the truth of allegations of misconduct  against
that employee. In this situation, the order would be founded  on  misconduct
and it will not be a mere matter of “motive”.

29. “Motive” is the moving power which impels action for a definite  result,
or to put it differently, “motive” is that which  incites  or  stimulates  a
person to do an act. An order terminating the services of an employee is  an
act done by the employer. What is that factor which  impelled  the  employer
to take this action? If it was the factor of general  unsuitability  of  the
employee for the post held by him, the action would be upheld  in  law.  If,
however, there were allegations of serious misconduct against  the  employee
and a preliminary inquiry is held behind his back to ascertain the truth  of
those allegations and a termination order is passed thereafter,  the  order,
having regard to other circumstances, would be founded  on  the  allegations
of misconduct which were found to be true in the preliminary inquiry.”

23.   A three-Judge Bench in Union of  India  and  Others  vs.  Mahaveer  C.
Singhvi[14], dwelled upon the issue whether the  order  of  discharge  of  a
probationer was simpliciter or punitive, referred to the authority in  Dipti
Prakash  Banerjee  vs.  Satyendra  Nath  Bose  National  Centre  for   Basic
Sciences[15] and came to hold thus:-
“It was held by this Court in Dipti Prakash Banerjee case  that  whether  an
order of termination of a probationer 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.”

24.    At  this  juncture,  we  must  refer  to  the  decision  rendered  in
Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of  Medical  Sciences  and
Another[16], wherein a two-Judge Bench struck a discordant note  by  stating
that:-
“Before considering the facts of the case before us one  further,  seemingly
intractable, area relating to the first test needs to be cleared  viz.  what
language in  a  termination  order  would  amount  to  a  stigma?  Generally
speaking when a probationer’s appointment is terminated it  means  that  the
probationer is unfit for  the  job,  whether  by  reason  of  misconduct  or
ineptitude, whatever the language used in  the  termination  order  may  be.
Although strictly speaking, the stigma is implicit  in  the  termination,  a
simple termination is not stigmatic. A termination  order  which  explicitly
states what is implicit in every order of  termination  of  a  probationer’s
appointment, is also not stigmatic. The decisions cited by the  parties  and
noted by us earlier, also do not hold so. In order to amount  to  a  stigma,
the order must be in a language which imputes something over and above  mere
unsuitability for the job.”

25.   The said decision has been discussed at length in State Bank of  India
and Others vs. Palak Modi and Another[17]  and,  eventually,  commenting  on
the same, the Court ruled thus:-
“The proposition laid down in none of the five judgments relied upon by  the
learned counsel for the appellants is of  any  assistance  to  their  cause,
which were decided on their own facts. We may also  add  that  the  abstract
proposition laid down in para 29  in  Pavanendra  Narayan  Verma  v.  Sanjay
Gandhi PGI of Medical Sciences is not  only  contrary  to  the  Constitution
Bench judgment in Samsher Singh v. State of Punjab, but a  large  number  of
other judgments—State of Bihar  v.  Shiva  Bhikshuk  Mishra,  Gujarat  Steel
Tubes Ltd. v. Mazdoor Sabha and Anoop Jaiswal v. Govt.  of  India  to  which
reference has been made by us and to which attention of the two-Judge  Bench
does not appear to have been drawn. Therefore, the said proposition must  be
read as confined to the facts of that case and cannot  be  relied  upon  for
taking the view that a simple order of termination of service can  never  be
declared as punitive even though it may be founded on serious allegation  of
misconduct or misdemeanour on the part of the employee.”

      We respectfully agree with the view expressed herein-above.
26.   In Palak Modi’s case, the ratio that has been laid down  by  the  two-
Judge Bench is to the following effect:-
“The ratio of the abovenoted judgments is that a probationer  has  no  right
to hold the post and his service can be terminated at any time during or  at
the end of the period of probation on account of general  unsuitability  for
the post held by him. If  the  competent  authority  holds  an  inquiry  for
judging the suitability of the probationer or for  his  further  continuance
in service or for confirmation and such inquiry  is  the  basis  for  taking
decision to  terminate  his  service,  then  the  action  of  the  competent
authority cannot be castigated as punitive. However, if  the  allegation  of
misconduct constitutes the foundation of  the  action  taken,  the  ultimate
decision taken by the competent authority can be nullified on the ground  of
violation of the rules of natural justice.

27.   In the facts of the case, the Court proceeded to state that  there  is
a marked distinction between the  concepts  of  satisfactory  completion  of
probation and successful passing of the training/test held during or at  the
end of the period of probation, which are sine qua non for  confirmation  of
a probationer and the Bank’s right to punish a probationer for  any  defined
misconduct, misbehaviour or misdemeanour. In a  given  case,  the  competent
authority may, while deciding the issue of suitability  of  the  probationer
to be confirmed, ignore the act(s) of misconduct and terminate  his  service
without casting any aspersion or  stigma  which  may  adversely  affect  his
future prospects but, if the misconduct/misdemeanour constitutes  the  basis
of the final decision taken by the competent authority to dispense with  the
service of the probationer albeit by a non-stigmatic order,  the  Court  can
lift the veil and declare that in the garb of termination  simpliciter,  the
employer has punished the employee for an act of misconduct.
28.   In the case at hand, it is clear as crystal that on  the  basis  of  a
complaint made by a member of  the  Legislative  Assembly,  an  enquiry  was
directed to be held.  It has been innocuously stated that the complaint  was
relating to illegal selection on the  ground  that  the  appellant  did  not
possess the requisite qualification and was appointed to the post  of  Chest
Therapist.  The  report  that  was  submitted  by  the  Cabinet  (Vigilance)
Department  eloquently  states  about  the  conduct  and  character  of  the
appellant.  The stand taken in the counter  affidavit  indicates  about  the
behaviour of the appellant.  It is  also  noticeable  that  the  authorities
after issuing the notice to show  cause  and  obtaining  a  reply  from  the
delinquent employee did not supply the documents.  Be that  as  it  may,  no
regular enquiry  was  held  and  he  was  visited  with  the  punishment  of
dismissal.  It is well settled in law,  if  an  ex  parte  enquiry  is  held
behind the back of the delinquent employee and there are  stigmatic  remarks
that would constitute foundation and not the motive.   Therefore,  when  the
enquiry commenced and thereafter  without  framing  of  charges  or  without
holding an enquiry the delinquent employee was dismissed, definitely,  there
is clear violation of principles of natural justice.  It cannot  be  equated
with a situation of dropping of the disciplinary proceedings and passing  an
order of termination simpliciter. In that event it would  have  been  motive
and could not have travelled to the realm of the foundation.  We may  hasten
to  add  that  had  the  appellant  would  have  been  visited  with   minor
punishment, the matter possibly would have been totally different.  That  is
not the case.  It is also not the case that he was terminated solely on  the
ground  of  earlier  punishment.    In  fact,  he   continued   in   service
thereafter.  As the report would reflect that there are many  an  allegation
subsequent  to  the  imposition  of  punishment  relating  to  his  conduct,
misbehaviour and  disobedience.  The  Vigilance  Department,  in  fact,  had
conducted an enquiry behind the back of  the  appellant.    The  stigma  has
been  cast  in  view  of  the  report  received  by  the  Central  Vigilance
Commission which was ex parte and  when  that  was  put  to  the  delinquent
employee, holding of a regular  enquiry  was  imperative.   It  was  not  an
enquiry  only  to  find  out  that  he  did  not   possess   the   requisite
qualification.  Had that been so, the  matter  would  have  been  altogether
different.   The allegations in  the  report  of  the  Vigilance  Department
pertain to his misbehaviour, conduct and his dealing with the  officers  and
the same also gets accentuated by the stand taken in the counter  affidavit.
 Thus, by  no  stretch  of  imagination  it  can  be  accepted  that  it  is
termination simpliciter.  The Division Bench has expressed the view that  no
departmental enquiry was required to be held as it was only  an  enquiry  to
find out the necessary qualification for the post of Chest  Therapist.   Had
the factual score been so, the said analysis  would  have  been  treated  as
correct, but unfortunately the exposition of factual  matrix  is  absolutely
different.  Under such circumstances, it is extremely  difficult  to  concur
with the view expressed by the Division Bench.
29.   Consequently, the appeal is allowed and the judgment and order  passed
by the Division Bench of the High  Court  is  set  aside  and  that  of  the
learned Single Judge is upheld, though on different  grounds.   Accordingly,
it is directed that the appellant be reinstated in service within  a  period
of six weeks and he shall be entitled to 50% towards his salary which  shall
be paid to him within the said period.   In  the  facts  and  circumstances,
there shall be no order as to costs.




                                             .............................J.
                                                               [Dipak Misra]



                                             ..........................., J.
                                                          [Prafulla C. Pant]
New Delhi;
October 15, 2015

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[1]     (1974) 2 SCC 831
[2]     (1999) 2 SCC 21
[3]     (1991) 1 SCC 691
[4]    (1992) Supp (1) SCC 524
[5]     (1994) 4 SCC 189
[6]     AIR 1958 SC 36
[7]     AIR 1960 SC 689
[8]     AIR 1961 SC 177
[9]     (1980) 2 SCC 593
[10]    (1984) 2 SCC 369
[11]    (1980) 3 SCC 288
[12]    (1994) 5 SCC 177
[13]    (2000) 5 SCC 152
[14]    (2010) 8 SCC 220
[15]    (1999) 3 SCC 60
[16]    (2002) 1 SCC 520
[17]    (2013) 3 SCC 607

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