Supreme Court of India
JARNAIL SINGH & ORS. ETC.versusSTATE OF PUNJAB & ORS.
- Citation
- 1986 INSC 110
- Decided
- 7 May 1986
- Disposal
- Appeal(s) allowed
- Bench
- A P SEN
Holding
The termination orders were made by way of punishment, violating Article 311(2), and were discriminatory under Articles 14 and 16, and therefore were quashed.
Summary
The appellants were appointed as ad‑hoc Surveyors in Punjab with a clause allowing termination at any time without notice. After a 1980 circular promised regularisation, their services were terminated on 31‑Jan‑1981 on the ground that the posts were no longer required. They challenged the termination, alleging that the order was a punishment that stigmatized their service records, violated the procedural safeguards of Article 311(2) of the Constitution, and was discriminatory under Articles 14 and 16 because junior employees were retained. The High Court dismissed the writ petitions, holding the termination innocuous. The Supreme Court held that the substance, not the form, of the order must be examined; the termination was indeed a punishment based on alleged misconduct without a proper enquiry, breaching Article 311(2), and was arbitrary, violating Articles 14 and 16. Consequently, the termination orders were quashed, and the appellants were deemed to be in service.
Issues considered
- The termination order, though framed as innocuous, was it a punishment requiring compliance with Article 311(2)?
- Can the court look beyond the form of a termination order to its substance and attendant circumstances?
- Did the termination violate Articles 14 and 16 by arbitrarily discriminating against the appellants while retaining junior employees?
- Are temporary/ad‑hoc government servants entitled to protection under Articles 14 and 16?
- Was the procedural requirement of a hearing under Article 311(2) complied with?
Legislation cited
- Constitution of Indias. Art.14, s. Art.16, s. Art.311(2)
Subjects
ad‑hoc appointmenttermination of serviceArticle 311(2)Articles 14 and 16discriminationprocedural fairnessstigmalifting the veiltemporary government servant
Judgment
1022
A
JARNAIL SINGH & OBS. ETC.
Vo
STATE OF PlJNJAB & OBS.
MAY 7, 1986
B [A.P. SEN AND B.C. RAY, JJ,)
Constitution of India, Art. 311 (2) - Persons appointed
on ad hoc basis - Order of termination challenged as casting
stigma on service career - Whether court entitled to lift th~
-
veil to find out real basis of termination order.
c
Articles 14 and 16 - Protection under - Whether
available to temporary government servants if arbitrarily
discriminated against. i
The appellants were appointed as Surveyors on variousf
D dates between December 1976 to 1977 through employment
exchange on purely temporary and ad hoc basis "up to a certain
date or upto the date till the regular candidates were
recollllll!nded by the Board, whichever was later". One of the
terms of employment stipulated that their services could be
dispensed with any time without an~ notice or reason.
E
The Government of Punjab, issued a Circular in September;..
1980 to the effect that the services of the ad hoc employees
F
shall be regularised on certain conditions mentioned therein..
Accordingly, the appellants submitted their requisite
documents to the authorities concerned for regularisation of
their services. However, their services were terminated with
effect fr0111 31.1. 81 by respondent No. 2. The termination ordert ~·
stated that "services of the employees are terminated because
-
these posts are no longer required."
The appellants challenged the aforesaid orders c•f
termination before the High Court in the Writ Petitions. The
+
G
High Court dismissed the writ petitions summarily on the
ground that the orders terminating services of the appellants:-
petitioners did not attach any stigma to the service career of
any of the appellants-petitioners, but they are made in terms
of employment.
H
JARNAIL SINGH v. STATE 1023
A
~ In appeal to the Supreme Court, it was contended on
behalf of the appellants : (i) that the impugned orders of
termination were based by way of punishment and cast stigma on
the appellants; and (ii) that persons who were recruited later
than the appellants were allowed to continue and to remain in
service to the detriment of the constitutional rights of the B
appellants and therefore, the impugned orders of termination
were discriminatory infringing Articles 14 and 16 of the
~onstitution. On the other hand Counsel for the respondent
argued : (i) that the orders of termination have been made in
accordance with the terms of the ad hoc appointment of the
appellants whieh provided that their services can be
. terminated at any time without assigning any reason and as c
/such the impugned orders could not be assailed on the ground
of attaching any stigma to the service career of the
~ppellants; and (ii) that where the impugned order is perse
innocuous and it is made in accordance with the terns of the
appointment, the court should not delve into the circumstances
which were taken into consideration by the authorities D
concerned in making the order.
Allowing the appeals,
~ HELD: 1, The impugned orders of termination of the
services of the appellants are liable to be quashed, cancelled
E
and set aside. Let appropriate writs of manda1111s be issued
- . directing the respondents, not to give effect to the impugned
orders of termination of the services of the appellants. A
writ of certiorari be also issued quashing and cancelling the
~ Yimpugned orders of termination .of services of the appellants
and the appellants be deemed to be in service. (1043 C-D] F
t 2.1 The mere form of the order is not :;ufficient to hold
that the order of termination was innocuous and the order of
termination of the services of a probationer or of an ad hoc
appointee is a termination simpliciter in accordance with the
terns of the appointment without attaching any stigma to the
G
,..;, employee concerned. It is the substance of the order i.e. the
attending circumstances as well as the basis of the order that
i have to be taken into consideration. [ 1041 E-F]
2.2 When an allegation is made by che employee assailing
the order of termination as one based on misconduct though
H
1024 SUPREME COURT REPORTS [1986] 2 S.C.R.
A
couched in innocuous terms, it is incumbent on the court t~
lift the veil and to see the real circumstances as well as the
basis and foundation of the order complained of. In other
words, the Court, in such a case, will lift the veil and will
see whether the order was made on the ground of misconduct,
inefficiency or not. [1041 F-G]
B
Parshotam Lal Ilrl.ngra v. Union of India, [ 1958] S.C.R.
828; State of l'Unjab and Anr. v. Sbri Soth Raj llahadur, [1968t
3 S.C.R. 234; State of Bihar & Ors. v. Shiva Bhikshult Misra,
[1971] 2 s.c.R. 191; State of Uttar Pradesh & Ors. v. Saghar
Singh, [1974] 2 S.C.R. 335; Sbamsber Singh & Anr. v. State of
c l'Unjab, [1975] l $.C.R. 814; Anoop Jaisval v. Gmre~t of
India & Anr., [1984] 2 S.C.R. 369; and Nepal Singh v. State 0£4.
U.P. &Ors., A.I.R. [1985] S.C. 84 relied upon.
In the instant cases, though the impugned orders were
made under the caioouflage or cloak of orders of termination
D simpliciter according to the terms of the employment, yet
considering the attendant circumstances which are basis of the
said orders of termination, there is no iota of doubt in
inf erring that the orders of termination had been made by way
of punishment on the ground of misconduct and adverse entry in
service record without affording any reasonable opportunity of>-
E hearing to the appellants whose services are terminated and
without complying with the mandatory procedure laid down in
Art. 311(2) of the Constitution of India. Thus, the impugned -
orders terminating the services of the appellants on the
ground that "the posts are no longer required" are made by way
of punishment. [1041 B-D; 1042 B] i ~
F
3. The protection of Articles 14 and 16 of the~
'
Constitution is available even to a temporary governmentT
servant if he has been arbitrarily discriminated against and
singled out for harsh treatment in preference to his juni<>rs
similarly circumstanced. [1042 G]
G
In the instant case, ad hoc services of the appellants
have been aribtrarily terminated as no longer required wh:lle
the respondents have retained other Surveyors who are juniors~
to the appellants. Therefore, on this ground also, the
impugned order of termination of the services of the
H
appellants are illegal and bad being in contravention of 1:he
JARNAIL SINGH v. STATE [RAY, J. I 1025
A
-t- fundamental rights guaranteed under Articles 14 and 16 of the
Constitution of India. [1043 B-C]
State of Uttar Pradesh & Ors. v. Soghar Singh, (1974] 2
s.c.R. 335; and Manager Govt. Branch Press & Anr. Vo D.B.
Belliappa, [1979] 2 s.c.R. 458 relied upon. B
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 230 &
-+- 231 of 1982.
From the Judgment and Order dated 20. 2.1981 of the
Punjab & Haryana High Court in Civil Writ Petition No. 476 of
~ 1981. c
P.P. Rao and C.M. Nayar for the Appellants.
t
Harbans Lal and R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by D
RAY, J. These appeals on Special Leave are against the
judgment and orders passed by a Di vision Bench of the High
Court of Punjab & Haryana dismissing summarily the Writ
-I Applications being Civil Writ Nos. 476 and 484 of 1981 filed
by the appellants on the ground that the orders terminating E
-
services of the petitioners did not attach any s,tigma to the
service career of any of the appellants-petitioners, but they
are made in terms of employment.
• Y The appellants were appointed on ad-hoc basis as
Surveyors on various dates between December 1976 to November F
l 1977 through Employment Exchange. The terms of the order of
T appointment are quoted hereinbelow :-
"The following officials are hereby appointed as
Surveyors in the grade of Rs. 140-6-170/8-210/10-
300 upto 28.2.1977 or upto the date till the
G
regular candidates are reco111Dended by the Board,
whichever is less, on ad-hoc basis and are posted
under the officers mentioned against their names.
Their services can be dispensed with any time
without any notice or reason. These candidates will
H
1026 SUPREME COURT REPORTS (1986] 2 S.C.R.
A
have to produce their concerned certificates to the +·
concerned officers before the submission of the
joining report."
The Government of Punjab in order to regularise the
services of all the ad-hoc employees who had completed the
minillBJm period of one year's service on September, 1980
issued a Circular (Annexure 'B') to the effect that the
B
services of the ad-hoc employees shall be regularised on+
certain conditions mentioned therein. On being directed by
Respondents Nos. 3 and 4 the petitioners submitted the ,...
requisite documents to the authorities concerned for >
regularisation of their services. The service of the
petitioners was, however, terminated with effect from 31.1.81 ~
c by the order of he Chief Conservator of Soils, Punjab,
Chandigarh, Respondent No.2. t
The crucial question requires to be decided in the
instant appeals is whether the impugned order of termination
of services of the petitioners can be deemed to be an
D
innocuous order of termination simpliciter according to the
terms and conditions of the services without attaching any
stigma to any of the petitioners or it is one in substance and
in fact an order of termination by way of punishment based on ~
misconduct and made in violation of the procedure prescribed
by Article 311(2) of the Constitution of India. In other words
F.
when the order of termination is challenged as casting stigma
on the service career, the Court can lift the veil in order to
find out the real basis of the impugned order even though on
the face of it the order in question appears to be innocuous. '( +'
In order to decide this issue, it is necessary tot
consider firstly the terms and conditions of appointment. The
appointments of the petitioners are purely temporary and they
have been appointed on ad-hoc basis "upto a certain date or
upto date ti 11 the regular candidates are recommended by the
Board, whichever is· later." It was also provided therein that
their services can be dispensed with any time without any
G
notice or reason. The petitioners undoubtedly worked as
Surveyors since the date of their appointment which in some ~
cases in December 1976 and in some cases on different dates
between November, 1977 till 31st of January, 1981 when their
services were terminated. In the order of termination it has
JARNAIL SINGH v. STATE [RAY; J.] 1027
A
+been stated and "services of the employees are terminated with
effect from 31.1.81 because these posts are no longer
required". This order was made by the Chief Conservator of
Soils, Pt.njab, Respondent No.2.
An affidavit has been sworn by Ashok Kumar, the B
petitioner No.2, on 18th March 1981 along with an application
for stay. In paragraph 3 of the said afff.dvait it has been
+specifically stated :-
"(a) That the petitioner No. l was accused of the
shortage of Rs. 7317.50, vide comnunication No.
1965 dated 12.11.1979 received from Assistant Soil c
Conservation Officer, Budlada, District Bhatinda.
(b) That the deponent who is petitioner No.2 was
also accused of shortfall and 'a First Information
Report dated 20.8.1980 (No.2715) has been lodged
against him with Police Station Nahiwala (District D
Bhatinda) in respect of the same. ·
(c) That Darshan Singh, the petitioner No. 6, was
accused of shortages, vide colDllllnication No. 10351
dated 3.10.1980 received from the Conservator of
Soils, Ferozepur. E
- (d) That Satnam Raj, petitioner No.8 was also
accused of misappropriation vide colDllllnication No.
10360 dt. 3.10.1980.
(e) That Ramesh Singh, petitioner No.12 was accused F
of shortages to the tune of Rs.14,000 and was
informed accordingly by the respondents.
(f) That similar allegations were made against the
remaining petitioners and they were branded as
incompetent and unfit for Government service. G
Adverse entries were also made in the Annual
; Reports.
In paragraph 4 of the said affidavit it has been further
averred that the above facts are true and correct to the
knowledge of the deponent. It has also been stated that the H
1028 SUPRF.ME COURT REPORTS (1986) 2 S.C.R,
A
petitioners had prayed in the High Court to sU111110n and
scrutinize the official records which would have clearly +
indicated that the impugned orders of termination were based
by way of punishment and casts stigma on the petitioners.
In the Counter Affidavit sworn by C.M. Sethi, Chief
B Conservator of Soils, Punjab, Chandigarh on behalf of
Respondents Nos. 1 to 7 on April 4, 1981 the statements in
paragraphs 3, 4 and 5 of the said affidavit have not at all -+
been controverted. In paragraph 4 of the said affidavit it has ·
been stated that annual/half yearly confidential reports werE! ;..
written on the work and conduct of all ad-hoc employees ,)oo-
C including the petitioners in the department. Therefore, it is
not correct to say that they learnt of their adverse report!~ ~
from the return filed in the High Court for the first time.
An additional affidavit verified by C.M. Sethi, Chief
f
Conservator of Soils, Respondent No.2 on January 15, 1982 was
D filed. It has been stated in paragraphs 3, 4 and 5 of the said
affidavit • -
"The claim of the petitioners that their record is
satisfactory and they have been performing their
duties efficiently was denied in connection with ._
E their claim for regular appointment only and it was
stated strictly in connection with their claim fo1r
regular appointment that some of them have adverse
record and there are shortages/embezzlements and
that the Departmental selection Conmitte•~
constituted by ·the Government did not recommend y ~
-
F them as fit for regular appointment, in view of
which they cannot be made regular. The petitioners
are quoting that information as a ground for
t
termination of their services, out of context,
which is not correct and is denied.
G The services of the petitioners were terminated on
the expiry of existing term of ad-hoc appointment
and not for the reason due to which they were found
to be not fit for regular appointment by the
Departmental Selection Conmittee.
H According to the reports of the Field Officers the
JARNAIL SINGH v. STATE [RAY, J. ) 1029
A
petitioners Sarvshri Natha Singh, Balbir Singh, Ram
+ Chand, Darshan Singh, Dalbir Singh, Sat Pal, Nirmal
Singh and Satnam Raj who had earned adverse reports
during t)\e years 1979-80 and upto 9/80 were duly
conveyed the adverse entries. It is, therefore,
denied that the adverse entries wer,e not conveyed B
to them."
+ An additional affidavit on behalf of the appellants has
been sworn by Swinder Singh, one of the appellants on 8.8.84.
4 In paragraph 4 of the said affidavit it ·had been averred that
- the following appellants were not colDllllnicated any adverse
report ·- c
~ i) Jarnail Singh, Appellant No. l in Civil Appeal
No. 230/82.
ii) Asholt Kumar, Appellant No. 2 i.n Civil Appeal
No. 230/82. D
iii) Tajender Singh, Appellant No. 2 in Civil
Appeal No. 231/82.
iv) Nachhattar Singh, Appellant No. 4 in Civil
Appeal No. 231/82. E
v) Bagga Singh, Appellant No. 7 in Civil Ap~eal No.
230/82.
vi) Ramesh Singh, Appellant No. 12 in Civil Appeal
No. 230/82. F
vii) Bura Singh, Appellant No. 5 :ln Civil Appeal
No. 231/82.
viii) Joginder Singh, Appellant No. 7 in Civil
Appeal No. 231/82. G
It has been stated in paragraph 5 : ··
"That the above names of the Appellants who were
not collllllnicated any adverse reports are given in
view of the fact that the Respondent State has H
1030 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
maintained that Appellants were colllllJlnicated
adverse reports in accordance with the Rules and-t
they were not confirmed in view of these adverse ,,
entries in the Confidential Rolls of the
Appellants."
B It has beeri stated in paragraph 6 of the said
affidavit :-
"That, lt is however admitted, that the following
-t
appellants were actually colllllJlnicated adverse ~
reports, as late and closer to their date of )111111
c termination of their services, as is indicated in
the table below :-
Name of the Date of Date of collllllni - •
Appellant Report cation of
the report
D
I. Roop Chand 29.1.81 29/30.1.81
2. Nathha Singh 6.10.80 December 1980
3. Dalbir Singh not knowri 24.1.1981
4. Darshan Singh 30.10.80 December 1980
5. Satnam Raj 25.10.80 December 1980
E 6. Nirmal Singh not known December 1980
-
7. Balbir Singh not knowri December 1980
8. Ram Chand Siv not known December 1980
9. Savinder Singh 28.10.80 End of January
'81
10. Sakttar singh 25.10. 80 December 1980
F (issued ori 3.11.80)
11. Partap Singh 27.10.80 December 1980
12. Sat Pal
(issued on 3.11.80)
25.10.80 2.1.1981
f
(issued on 2.1.81)
13. Tarsem Lal 24.12.80 End of Jariuary
G I 81. n
It has been stated iri paragraph 7 of the said affidavit:- _,
"That the following .persoris who were recrulted 'r
around the same time and were taken in service also
H earned adverse reports and faced charges of
JARNAIL SINGH v. STATE [RAY, J.] 1031
embezzlement, but have been retained and A
regularised in service in preference to the
Appellants :-
(1) Gurbux Singh s/o Sohan Singh
(2) Mithoo Ram s/o Muleand Lal
(3) Gurcharan Singh s/o llazara Singh B
(4) Tulsa Singh s/o Surjeet Singh
( 5) Vinay kumar Sawhney
(6) Kabul Singh s/o Tara Singh
(7) Daulat Ram s/o Gala Ram
(8) Chander Prakash s/o Sunder Lal
(9) Nirmal Sing!\ s/o Sohan Singh
(10) Gurbux Singh s/o Geja Singh c
(11) Jaswant Singh s/o Chanchal Singh
(12) Ganda Singh s/o llardit Singh
(13) Boota Singh s/o Anokh Singh
(14) Manmohan Sood s/o Arjun Singh."
It has been stated in paragraph 8 of the said affidavit:- D
"That there were other persons who were recruited
later than the Appellants but continue<' to remain
in service to the detriment of the Constitutional
rights of the Appellants."
E
It has been stated in paragraph 10 of the said
.,. affidavit ·-
"That the respondent State framed false cases of
embezzlement against some of the appellants and
till todate no proceedings have been taken, nor any F
inquiries instituted against, in regard to those
cases".
It has been stated in paragraph 13 of the said
affidavit ·-
G
·II· "That the Screening Coomittee was presided over by
the Chief Conservator of Soils, Punjab, Chandigarh
Shri C.M. Sethi, under whose administrative control
the Appellants' Confidential Record was written,
and who has filed the Counter Affida,,it on behalf
of the Respondents before this Hon 'ble Court." H
1032 SUPREME COURT REPORTS [19861 2 s.c.R.
A
In the affidavit verified by Pritam Singh, Chief
Conservator of Soils, Punjab, Chandigarh on 22nd Novembeit
1984, it has been stated in paragraph 4 that ·-
"It is wrong that there were adverse remarks
against Sarvshri Jamail Singh, Ramesh Singh and
B Bura Singh which were required to be c0111111nicated
to them. In respect of others there were adverse
remarks which were co111111nicated through letters
mentioned below :- · -t
1) Sh. Ashok Kumar According to the record
c available adverse re-
marks were conveyed b~
the Conservator o~
Soils, Ferozepur to th~
Divisional Soil Conser•
vation Officer, Bhatinda
D vide letter No. 11427
dated 28.10.80 for its
further cOllllllnication to
the official concerned.
2) Tejinder Singh Adverse remakrs were
E conveyed by the Cons,er-jt,
vator of Soils, Feroze-
pur to the Divisional
Soil Conservation Offi- ~
cer, Bhatinda vide No.
11429 dated 27.10.80 for
F further c0111111nication ta' '
the official concerned.
3) Nachhatar Singh Adverse remarks werJ
conveyed by the Conser-
vator of Soils, Feroze-
G pur to the Divisional
Soils Conservation Offi-
cer, Bhatinda vide No.
10355 dated 3,10,80 for
fur~her co!lllllnication t<t
the official concerned.
H
JARNAIL SINGH v. STATE [RAY, J.] 1033
A
4) Joginder Singh Adverse remarks were
+ conveyed by the Conser-
vator of soils, Feroze-
pur to the Divisional
Soil Conservation Offi-
cer, Bhatinda vide No.
B
11813 dated 4.11.80 for
further cotD11llnication to
the official concerned
5) Bagg a Singh COID1lllnication referen-
ce is not available on
record.
c
The services of the petitioners were terminated on
the expiry of existing term of ad-hoc appointment
and not for the reason due to which they were found
to be not fit for regular appointment by the
Departmental Selection Conmittee."
D
It has further been stated in paragraph 6 and 7 of the
said affidavit.
"That the adverse entries of the period varying
from 10/80 to 1/81 have been comllllnicated to them
E
in December, 1980, January, 1981. A.q this period is
- nearer to their date of termination of services so
they were to be co11111R1nicated these remarks at that
time only.
It is incorrect to the extent that the persons
F
named below earned adverse remarks and had charges
of .shortages/embezzlement.
i) Mithu Ram s/o Mukan Lal
ii) Gurcharan Singh s/ o Hazara Singh
iii) Kabul Singh s/o Tara Singh
iv) Daulat Ram s/o Gala Ram G
f. v) Chander Prakash s/o Sunder Lal
vi) Gurbux Singh s/o Geja Singh
vii) Jaswant Singh s/o Chanchal Singh
viii) Ganda Singh s/o Hardit Singh
ix) Boota Singh s/o Anokh Singh
x) Manmohan Sood s/o Arjun Singh H
1034 SUPREME COURT REPORTS (19861 2 s.c.R.
A
However, in the case of remaining persons namely
Sarvshri (i) Gurbux Singh, s/o Sohan Singh, (ii) +
Tulsa Singh a/o Surjit Singh (iii) Nirmal Singh s/o
Sohan Singh (iv) Vinay Kumar s/o Shri Ram, there
were adverse remarks against these persons and the
Departmental Selection Committee examined their
record of service and found them fit for regular
B
appointment. The Departmental Selection Committee
was fully competent to select or reject any of the
candidates for regular appointment in accordance .t
with the Government instructions on the subject."
It has also been stated in paragraph 8 of the said
c affidavit that the Departmental Selection Committee in
accnrdance with the Government instructions as contained in ~
Government Notification dated 28.10.1980 considered the cases
of all eligible persons including the appellants and the +
persons cited in the list for appointment on regular basis and
the appellants were not found fit for appointment on regular
D
basis by the Conmittee. Thus the appellants were afforded full
opportunity to compete and as such no constitutional right of
the appellants was infringed.
It thus appears on a consideration of the averments made
in the affidavit verified on behalf of the petitioners as well ~
as on behalf of the respondents that the impugned order of
termination of service of the petitioners had been made on the
ground that there were adverse remarks in the service records
of the petitioners as well as there were serious allegations
of embezzlement of funds against some of the petitioners. It
is quite clear that on consideration of all these adverse Y '
F
entries in the service record as well as serious allegations
relating to misconduct, the petitioners were not considered
fit by the Departmental Selection Committee to recommend the
+
petitioners for regularisation of their services as Surveyors.
The impugned orders of termination of services of the
petitioners are really made by way of punishment and they are
G
not termination simpliciter according to terms of the appoint-
ment without any stigma as wrongly stated. It is indisputed
that the Respondents Nos. 2 and 3 did not follow the mandatory
procedure prescribed by Article 311(2) of the Constitution in r
maki.ng the purported orders of termination of services of the
petitioners on the groumi of miscouduct and thus there has
H
JARNAIL SINGH v. STATE [RAY, J.] 1035
A
been a patent violation of the rights of the petitioners as
t provided in Article 311(2) of the Constitution. There is no
room for any doubt that the impugned orders of termination of
services of the petitioners had been made by way of punishment
as the allegations of embezzlement of funds as well as adverse
remarks in the service records of these petitioner~ were the B
basis and the foundation for not considering the petitioners
to be fit for being regularised in their services in
accordance with the Government Circular date.d October 28,
i 1980. Therefore, it is clear and evident in the context of
these facts and circumstances of the case that the impugned
order of termination though couched in the innocuous terms as
being made in accordance with the terms and conditions of the c
, appointment, yet the impugned order of termination of services
~ of the petitioners were in fact made by way of punishment
being based on the misconduct. There is also no denial of the
~- specific averments made in the paragraph 8 of the Additional
Affidavit sworn by one of the appellants Swinder Singh on
August 8, 1984 that persons who were recruited later than the D
appellants were allowed to continue and to remain in service
to the detriment of the Constitutional rights of the appel -
lants. The impugned order of termination was, therefore, also
assailed on the ground of discrimination, inf ringing Articles
14 and 16 of the Constitution of India.
E
It is vehemently urged on behalf of the respondents that
the orders of termination have been made in accordance with
the terms of the ad-hoc appointment of the petitioners which
provided that their services can be terminated at any time
without assigning any reason and· as such the impugned orders
' 'f could not be assailed on the ground of attaching any stigma to F
the service career of the petitioners. It has also been urged
l that where the impugned order is perse innocuous and it is
1 made in accordance with the terms of the appointment, the
court should nr.~ delve into the circumstances which were taken
into consideration by the authorities concerned in making the
order. In other words it has been urged that in such cases it G
is not for the Court to enquire into the basis of the order
and to see if the same was in fact made by way of punishment
11 having evil consequences or not.
The petitioners are undoubtedly temporary ad-hoc
employees having no right to the posts they hold. In the case H
of Parshotam Lal llhingra v. Union of India, [1958] s.c.R. 828
it has been observed by this court as follows :-
1036 SUPR!lME COURT REPORTS (19861 2 s.c.R.
A
"In short, if the termination of service ls founded
on the right flowing from contract or the service +
rules then, prima f acie, the termination is not a
punishment and carried with lt no evil consequences
and so Article 311 is not attracted; But even if
the Government has, by contract or under the rules,
the right to terminate the employment without going
B
through the procedure prescribed for inflicting the
punishment of dismissal or removal or reduction in
rank, the Government may, nevertheless, choose tot-
punish the servant and if the termination of
service is sought to be founded on misconduct,
negligence, in-efficiency or other disqualifica-
c tion, then it is a punishment and the requirements
of Article 311 tDJst be complied with ....... " .~
In the case of State of Punjab & Anr. v. Shd Sukh Raj~
Bah...tnr,[1968]3 S.C.R. 234 the following prepositlons were
laid down by this Court whlle considering the question whether
D
in case of termination of service of a temporary servant or a
probationer, Article 311(2) of the Constitution would be
affected or not. llle prepositions are as follows :- •
"l. llle services of a temporary servant or a
probationer can be terminated under the rules of '-
E
his employment and such termination without
F
anything more would not attract the operation of
Article 311 of the Constitution.
2. llle circumstances preceding or attendant on the
order of termination have to be examined in each 1' '
-
case the motive behind it being immaterial.
3. If the order visits the public servant with any
evil consequences or casts an aspersion against his
f
character or integrity, it tDJst be considered to be
one by way of punishment, no matter whether he was
G
a mere probationer or a temporary servant.
4. An order of termination of service in
unexceptionable form preceded by an enquiry y
1
launched by the superior authorities only to
ascertain whether the public servant should be
H
JARNAIL SINGH v. STATE [RAY, J. ] 1037
A
retained in service does not attract the operation
+ of Article 311 of the Constitution.
5. If there be a full-scale departmental enquiry
envisaged by Article 311 i.e. an Enquiry Officer is
appointed, a charge sheet submitted, explanation B
called for and considered, any order of termination
of service made thereafter will attract the
operation of the said article."
.This decision was considered by this Court in the case of
- State of Bihar & Ors. v. Shiva llbikshult Ml.sra, [1971] 2 S.C.R.
191 in connection with the reversion of an officiating Subedar
Major to his substantive post of Sergeant. In that case the
c
respondent held the substantive post of Sergeant in the Bihar
Police Force till July 31, 1946. On August 1, 1946 he was
-+ proDK>ted to the higher post of Subedar. In January 1948 he was
further proDK>ted to officiate temporarily as Subedar Major. In
October 1950, the Conmandant of the Bihar Military Police, D
Muzaffarpur wrote to the Deputy Inspector of Police, Armed
Forces suggesting that he should be censured for having
assaulted an orderly. Thereafter, the Inspector General of
Police reverted the respondent to the post of Sergeant. The
said order of reversion was challenged and it was held by this
Court that :- E
- "So far as we are aware no such rigid principle has
ever been laid down by this Court that one has only
to took to the order and if it does not contain any
imputation of misconduct of words attaching a
stigma to the character or reputation of a F
Government Officer it 1111st be held to have been
made in the ordinary course "f administrative
routine and the court is debarred from looking at
all the attendant circumstances to discover whether
the order had been made by way of punishment. The
form of the order is not conclusive of its true G
nature and it might merely be a cloak or caDK>uf lage
for an order founded on misconduct. It may be that
an order which is innocuous on the face and does
not contain any imputation of misconduct is a
circumstance or a piece of evidence for finding
whether it was made by way of punishment or H
1038 SUPREME COURT REPORTS [19861 2 s.c.R.
A
administrative routine. But the entirety of
circumstances preceding or attendant on the ~
impugned order Dllst be examined and the overriding ,,
test will always be whether the misconduct is a
mere motive or is the very foundation of the
order."
B
Ille order of reversion was held to be by way of
punishment and as such it was set aside.
In the case of State of Uttar Pradesh & Ors. v. Saghar
Singh, [1974] 2 s.c.R. 335 a permanent Head Constable in the
U.P. Police Force was appointed as officiating Platoon
c Commander in the combined cadre of Sub Inspector, Armed Police
and Platoon commander. He was subsequently reverted to the
substantive post of Head Constable in 1968. At the time of
reversion he was one among a group of about 200 officers most
of whom were junior to him. Two questions arose, namely
whether the order of reversion is attendant with any stigma
D
and secondly whether there has been any discrimination
violating Article 14 and 16 of the Constitution. It was held
that so far as reversion is concerned, the order of reversion
did not cast any stigma, not it has any evil consequences as
the respondent neither lost his seniority in the substative
rank, nor there has been any forefe!ture of his pay or
E
allowances. It was also held that the order was liable to be
quashed on the ground of contravention of Article 14 and 16 of
the Constitution inasD11ch as while the respondent had been
reverted, his juniors were all.owed to retain their present
status as Sub Inspector and they have not been reverted to the
substantive post of Head Constable. It was further held that
)' .
F
there was no administrative reason for this reversion, so the
order was held bad.
Ille question whether the order terminating the service of
+
a probationer made according to the terms of appointment can
never amount to punishment in the facts and circumstances of
G
the case was considered by a Bench of 7 Judges of this Court
in the case of Sbamher Singh & Anr. v. State of Fanjab,
[1975] 1 S.C.R. 814. In that case the services of two Judicial
Officers who were on probation were terminated by the
Government of Punjab on the recolllllendation of the High Court
under Rule 7(3) in Part D of the Punjab Civil Services
H
JARNAIL SINGH v. STATE [RAY, J,] 1039
(Judicial Branch) Rules 1951 as amended. The services of the A
i probationers were terminated without saying anything more in
the order of termination. This was challenged on the ground
that though the order on the face of it did not attach any
stigma, yet the attendant circumstances which led to passing
of the order if considered then the orders would amount to
have been made by way of punishment violating Article 311 of B
the Constitution. It has been observed relying on the
observations of this Court in Parshotaa Lal Urlngra V• Union
,,. of India, by A.N. Ray, C.J, as follows :-
"No abstract proposition can be laid down that
where the services of a probationer are terminated
without saying anything more in the order of termi- c
nation that the services are terminated it can
never amount to a punishment in the facts and cir-
cumstances of the case. If a probationer is dis-
charged on the ground of misconduct, or ineff i -
ciency or for similar reason without a proper
enquiry and without his getting a reasonable D
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."
This decision was followed and relied upon in the case of E
Anoop Jaiswal v. Goverment of India & Anr., [1984) 2 s.c.R.
369. In that case the appellant being selected for appointment
in the I.P.S. were undergoing training as a probationer. On a
1 particular day all the trainees arrived late at the place
where P.T,/unarmed combat practice was to be conducted,
~ although pr.or intimation was sent to. them in this regard. F
l This delay was considered as an incident which called for an
enquiry. The appellant was considered to be one of the ring
leaders who was responsible for the delay. Explanation wa(
called for from all the probat toners. The appellant in his
explanation sincerely regretted the lapse while denying the
charge of instigating others in reporting late. After G
receiving the explanations, all the probationers including the
J appellant were individually interviewed in order to ascertain
l the facts. On the basis of the explanation and interview, but
without holding any proper enquiry the Director recolllllended to
the Government of India that the appellant should be
Jl
1040 SUPREME COURT REPORTS [19861 2 s.c.R.
A discharge~ from the service. The Government accordingly passed ~
an order of discharge of the appellant on the ground of
unsuitability for being a member of the I.P.S. This order was
challenged in the Writ Petition. It has been held as follows:-
''Where the form of the order ls merely a camouflage
for an order of dlsmissaly for misconduct it is
B always open to the court before which the order is
challenged to go behind the form and ascertain the
true character of the order. If the court holds
that the order though in the form is merely a
determination of employment is in reality a cloak
for an order of punishment the court would not be
c debarred, merely because of the form of the order,
in giving effect to the rights conferred by law
upon the employee.''
The order was held to be bad as it was made on the ground
of misconduct without affording reasonable opportunity to the
D appellant to defend himself as provided under Article 311 (2)
of the Constitution.
In the case of Nepal Singh v. State of U.P. & Ors.,
A.I.R. 1985 s.c. 84 the service of the appellant Nepal Singh, ~
who was employed in temporary capacity as Sub Inspector of
E Police, was terminated by an order of Deputy Inspector General
of Police, Bareilly Range and the order merely stated that the
appellant's services were not required any more and were
terminated with one month's pay in lieu of notice. This order
was challenged on the ground that it amounted to punishment Y'
and since no opportunity of hearing, as provided in the
F Ardticle 31 1(2b) of theb Consthitudtiond, was afifdordeid, the impugnded
or er was 11a 1e to e quas e an set as e. t transp1re at
f
the time of hearing that a disciplinary proceeding was
initiated against the appellant on the ground that he
contracted the second marriage during the life time of his
first wife and this act was done without obtaining prior
G permission of the Government. This disciplinary proceeding,
however, was not proceeded with. Thereafter the Superintendent
of Police, Shahjahanpur drew up a list to the effect that he 'r
was a corrupt officer and he was not straight-forward. The
impugned order was made thereafter. It was held that where
allegations of misconduct were levelled against a Government
H
JARNAIL SINGH v, STATE [RAY, J, ] 1041
.. ~servant and it was a case where provisions of Article 311(2)
of the Constitution should apply, it was not open to the
A
competent authority to take the view that holding the enquiry
contemplated by that clause would be a bother or a nuisance
and that, therefore, it was ·entitled to avoid the mandate of
B
that provision and resort to the guise of an ~ facie
innocuous termination order.
In the instant case as we have stated already
~hereinbef ore that though the impugned order was made under the
camouflage or cloak of an order of termination simpliciter
according to the terms of the employment, yet considering the
attendant circumstances which are the basis of the said order c
Lof termination, there is no iota of doubt in inferring that
rthe order of termination had been made by way of punishment on
1the ground of misconduct and adverse entry in service record
without affording any reasonable opportunity of hearing to the
petitioners whose services are terminated and without
complying with. the mandatory procedure laid down in Article D
311(2) of the Constitution of India.
The position is now well settled on a ~onspectuous of the
decisions referred to hereinbefore that the mere form of the
~order is not sufficient to hold that the order of termination
was innocuous and the order of termination of the services of E
a probationer or of an ad-hoc appointee is a termination
simpliciter in accordance with the terms of the appointment
without attaching any stigma to the employee concerned. It is
the substance of the order i.e. the attending circumstances as
,... 'f"ell as the basis of the order that have to be taken into
consideration. In other words, when an allegation is made by F
~he employee assailing the order of termination as one based
1~n misconduct, though couched in innocuous terms, it is
'incumbent on the court to lift the veil and to see the real
circumstances as well as the basis and foundation of the order
complained of. In other words, the Court, in such case, will
lift the veil and will see whether the order was made on the G
ground of misconduct inefficiency or not. In the instant case
we have already referred to as well as quoted the relevant
f.'.ortions of the averments made on behalf of the State
re~pondent in their several affidavits alleging serious
misconduct against the petitioners and also the adverse
entries in the service records of these petit:ioners, which H
1042 SUPREME COURT REPORTS [1986) 2 S.C.R.
A
were taken into consideration by the Departmental Selection
C0111Dittee without giving them any opportunity of hearing and
without following the procedure provided in Article 311(2) of
the Constitution of India, while considering the fitness and
+ -
...
suitability of the appellants for the purpose of regularising
their services in accordance with the Government Circular made
B in October, 1980. Thus the impugned orders terminating the
services of the appellants on the ground that "the posts are
no longer required" are made by way of punishment. t-
It also appears on a consideration of the averments made
in paragraphs 7 and 8 of the Additional Affidavit sworn by one
c of the appellants Swinder Singh on August 8, 1984, which has
not been controverted at all by the respondent, that the ·~
respondents though terminated the services of the petitioners
on the ground that "these posts are no longer required" have~
retained and regularised the service of ad-hoc employees
mentioned in paragraph 7 as well as ad-hoc Surveyors who were •
D recruited later in the said post of Surveyors to the prejudice
of the rights of the appellants, thereby violating the
salutory principle of equality and non-arbitrariness and want
of discrimination and as enshrined in Articles 14 and 16 of
the Constitution of India. It is pertinent to refer here to
the decision rendered by this Court in Sughar Singh' s case i.
E where it had been held that the order of reversion reverting
-
the respondent from his officiating appointment to the post of
Platoon Commander to the post of permanent Head Constable
while retaining 200 other Head Constables who were junior to
him in the officiating higher posts of Platoon Commanders was
discriminatory and arbitrary being in contravention of they~
F Articles 14 and 16 of the Constitution.
Similar observations have been made in the case of~
Manager Govt. Branch Press & Anr. v. D.B. Belliappa [ 1979] 2
S.C.R. 458. It has been held that the protection of Articles
14 and 16 of the Constitution will be available even to a
G temporary Government servant if he has been arbitrarily
discriminated against and singled out for harsh treatment in
preference to his juniors similarly circumstanced. In that
case the service of Belliappa, a temporary Class IV employeer
was terminated without assigning any reason although in
accordance with he conditions of his service, three other
H employees similary situated, junior to Belliappa in the said
JARNAIL SINGH v. STi\TE [Ri\Y, J.] 1043
temporary cadre, were retained. 'nle order of termination was
~ held to be bad as it offended the equlity clause in i\rticle 14
and 16 of the Constitution.
In the instant case, ad-hoc services of the appellants
have been arbitrarily terminated as no longer required while B
the respondents have retained other Surveyors who are juniors
to the appellants. 'nlerefore, on this ground also, the
impugned order of termination of the services of the
-t appellants are illegal and bad being in contravention of the
fundamental rights guaranteed under i\rticles 14 and 16 of the
..; Constitution of India.
.. c
In the premises aforesaid, the impugned orders of
L termination of the services of the appellants are liable to be
r quashed, cancelled and set aside. Let appropriate writs of
i mandalllls be issued directing the respondents, not to give
effect to the impugned orders of termination of the services
of the appellants. Let a writ of certiorari be issued quashing 0
and cancelling the impugned orders of terminatl.on of services
of the appellants and the appellants be deemed to be in
service.
In the facts and circumstances of the case, the appeals
A are allowed with costs assessed at Rs. 2,000. E
--- M. L.A. Appeals allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "ad‑hoc appointment"Sign in to search