Holding

Termination of the temporary teacher’s services was not punitive but a lawful exercise of the power conferred by the appointment order, and the preceding enquiry was only a preliminary fact‑finding inquiry.

Summary

The respondent, a temporary Physical Education teacher in a Kendriya Vidyalaya, was accused of corporal punishment after a parent complained. The school conducted a fact‑finding enquiry, recorded statements of students and the teacher’s limited participation, and the enquiry officer recommended disciplinary action. Instead of a formal departmental enquiry, the Regional office terminated the teacher’s services under the appointment order, which allowed termination by one month’s notice without assigning reasons. The teacher sued, claiming the termination was punitive, violated natural justice and fell within the protection of Article 311. The Supreme Court held that the enquiry was merely preliminary, not a disciplinary proceeding, and that the termination was an innocuous exercise of contractual power, not a punishment; consequently Article 311 did not apply and the termination was lawful. The Court set aside the High Court’s decision and affirmed the dismissal of the suit.

Issues considered

The nature of the enquiry conducted – whether it was a formal disciplinary enquiry or a preliminary fact‑finding enquiry.
Whether termination of a temporary employee’s services on the basis of such an enquiry amounts to punishment requiring observance of natural justice.
Whether Article 311 of the Constitution applies to a temporary post in Kendriya Vidyalaya Sangathan.
Whether the termination under the terms of the appointment order, without assigning reasons, is valid.

Subjects

termination of servicetemporary employeecorporal punishmentdisciplinary enquirynatural justiceArticle 311fact‑finding enquiryservice law

Judgment

KENDRIYA VIDYALA YA SANGA THAN A
v.
ARUN KUMAR MADHA VRAO SINDDHA YE AND ANR

OCTOBER 31, 2006

[G.P. MA THUR AND A.K. MATHUR, JJ.] B

Service Law

Termination of services-Physical Education Teacher on temporary'
post-Complaint by students that he was giving them corporal punishment- C
Forwarded by Principal of school to its Regional office which asked for a
report along with original statements-For that purpose enquiry conducted
wherein statements of students recorded and explanation asked for from
teacher-Enquiry officer in his report recommending disciplinary action, but
the Regional office ordering termination of services-High D
Court holding termination as illegal-Correctness of Held-Enquiry was
merely a preliminary or fact finding enquiry and not a formal full scale
departmental enquiry where non-observance of prescribed
procedure or a violation of principle of natural justice could vitiate it-No
articles of charges were served nor students asked to depose on oath-
Termination of services was not by way ofpunishment but was in accordance E
with terms and conditions mentioned in appointment order which empowered
appointing authority to terminate services by one month's notice without
assigning any reasons-ft was more so as the termination order was innocuous
and did not cast any stigma.

Constitution of India, 1950-Article 311-Applicability of-Held -post F
of teacher in Kendriya Vidyalaya Sangathan is not a civil post within
meaning of the Article and provisions thereof are not applicable in case of
their termination from service.

Respondent was appointed on a temporary post of Physical Education. G
Teacher with the appellant school Father of one of the students complained
that in spite of doctor's advice and written note of the class teacher, he forced
his son to do and PT being unable to do so, was beaten. It was further alleged
that this was not the only occasion when corporal punishment had been meted
out to the students by the respondent. The Principal of the appellant school
' 879 II

.....
880 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
..
A forwarded the complaint to its Regional office whereupon be was asked to send
a report along with original statements regarding the complaint. For that
purpose an enquiry was conducted in which statements of students were
recorded. The Principal had earlier asked for an explanation from the
respondent which he had given. Statements of students were recorded in
presence of the respondent wherein he was allowed to put questions to them.
B Respondent was again asked to give his own statement, which he refused. The
enquiry officer then submitted his opinion recommending disciplinary action
against the respondent. However the Regional office of appellant terminated
services of respondent. Respondent filed a suit for a declaration that
termination of his services was illegal on the ground that the inquiry had
•
c recorded finding against him and was conducted behind his back; it was not
a simple orde1· of termination of services but bad been passed by way of
punishment, in violation of principles of natural justice. Trial Court dismissed
the suit and first appeal therefrom to lower appellate court was also dismissed.
However, the second appeal preferred by the respondent was allowed by the
High Court and the suit was decreed. Hence the present appeal.
D
Appellant contended that the enquiry held against the respondent was
not a disciplinary enquiry but was only in the nature of a preliminary or fact f

finding enquiry.

Allowing the appeals, the Court
E
HELD I. I. The nature of enquiry conducted against the respondent was
merely a preliminary or fact finding enquiry and no formal full scale
departmental enquiry had been conducted against the respondent. In fact, the
enquiry officer had himself recommended that disciplinary action be taken
against the respondent. However, the authorities chose not to hold a
F disciplinary enquiry against the respondent and did not serve him with any
article of charges or take any further steps in that regard. Instead they chose
to exercise power under the terms and conditions of the appointment order.
The termination order is wholly innocuous and does not cast any stigma upon
the respondent nor it visits him with any evil consequences. 1892-C-El
G
1.2. The Principal was not an eye witness of the incident relating to '."°'
respondent PT Master and also of the corporal punishment which was awarded
by the respondent to the other students. Therefore, in order to ascertain the
complete facts it was necessary to make enquiry from the concerned students.
If in the course of this enquiry the respondent was allowed to participate and I
~
H
KENDRIYA VIDYALAYA SANGATHAN •·. ARUNKUMAR MADHAVRAO SINDDHA YE 881

some queries were made from the students, it would not mean that the enquiry A
so conducted assumed the shape of a formal departmental enquiry. No articles
of charges were served upon the respondent nor the students were asked to
depose on oath. The High Court has misread the evidence on record in
observing that articles of charges were served upon the respondent. The
limited purpose of the enquiry was to ascertain the relevant facts so that a
correct report could be sent to the Kendriya Vidyalaya Sangathan. The enquiry B
held can under no circumstances be held to be a formal departmental enquiry
where the non-observance of the prescribed rules of procedure or a violation
of principle of natural justice could have the result of vitiating the whole
enquiry. There cannot be even a slightest doubt that the Assistant
Commissioner, Kendriya Vidyalaya Sangathan, Bombay Region, terminated C
the services of the respondent in accordance with the terms and conditions
mentioned in his appointment order which expressly conferred power upon
the appointing authority to terminate the respondent's services by one month's
notice without assigning any reasons. The services of the respondent were,
therefore, not terminated by way of punishment [887-G-H; 888-A-DJ
D
State of Maharashtra v. Veerappa R. Saboji, AIR (1980) SC 42, State of
Uttar Pradesh and Anr. v. Kaushal Kishore Shukla, [1991) 1 SCC 691, S.P.
Vasudeva v. State ofHaryana and Ors., AIR (1975) SC 2292, Ravindra Kumar
Misra v. UP. State Handloom Corporation Ltd and Anr., AIR (1987) SC 2408,
Pavanendra Narayan Verma v. Sanjay Gandhi PG! of Medical Sciences and E
Anr., [20021 1 SCC 52 and State of Punjab v. Sukhwinder Singh, [2005] 5
sec 569, relied on
Samsher Singh v. State of Punjab & Anr., [19741 2 SCC 831, Bishan
Lal Gupta v. State of Haryana & Ors., [1978) 1 SCC 202, Anoop Jaiswal v.
Government of India & Anr., [19841 2 SCC 369 and Dipti Prakash Banerjee p
v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors.,
[1999) 3 sec 60, distinguished.

2. The respondent was appointed as PT teacher in Kendriya Vidyalaya
Sangathan and as such he does not hold a civil post within the meaning of
Article 311 of the Constitution and the said provision does not apply to him. G

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5452-5453 of
2004.

From the Judgments and Orders dated 5.3.2002 and 3.11.2003 of the
High Court of Judicature at Bombay in Second Appeal No. 463/1998 and H
882 SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.
..
A Review Petition No. 6/2003 in Second Appeal No. 463/1998 repectively.
S. Rajappa for the Appellant.

T. Raja for the Respondent.

The Judgment of the Court was delivered by
B
G. P. MATHUR, J. These appeals. by special leave, have been preferred
against the judgment and decree dated 5.3.2002 of Bombay High Court by
which the second appeal preferred by the respondent Arunkumar Madhavrao
Sinddhaye was allowed and the suit filed by him was decreed setting aside
c the order of termination of services dated 21.3.1975 and directing his
reinstatement with full back wages. The appellant preferred a review petition
before the High Court which was dismissed on 3.11.2003 and the said order
is also under challenge.

2. The respondent Arunkumar Madhavrao Sinddhaye was appointed on
D a temporary post of Physical Education Teacher in the Kendriya Vidyalaya
Sangathan on 25.6.1974. His services were terminated vide order dated
21.3 .1975 in accordance with conditions of appointment mentioned in the
appointment order. He filed a suit for a declaration that the order of termination
of his services dated 21.3.1975 was illegal, inoperative and not binding upon
E him. The main plea taken in the suit instituted by the respondent was that
his services had been terminated by way of punishment as an enquiry had
been held behind his back in which some witnesses were examined and after
completion of the enquiry, in which he had not been given any opportunity
to defend himself, a report was submitted against him and on the basis of the
said report his services were terminated. The suit was defended by the
F appellant on several grounds and the principal ground being that the services
of the petitioner had not been terminated by way of punishment, but in terms
of the appointment order. The learned Civil Judge (Jr. Division) Pune, dismissed
the suit vide judgment and decree dated 28.2.1986 and the appeal preferred
by the respondent against the said decree was also dismissed by VII Additional
District Judge, Pune, by the judgment and decree dated 28.4.1987. The second
G appeal preferred by the respondent was, however, allowed by the High Court
and the suit was decreed as mentioned earlier.

3. Before adverting to the submissions made by learned counsel for the
parties, it will be convenient to set out the essential facts of the case and the
f
H findings recorded by the High Court.
KENDRJY A VIDYALA YA SA NGA THAN,., ARUNKUMAR ~IADHAVRAO SINDDHAYE [GP MATHUR. J. ) 883

4. The relevant part of the appointment order issued in favour of the A
respondent by Kendriya Vidyalaya Sangathan, Bombay Regional Office on
25.6.1974 reads as tmder:-

"No.F.6-5/74/KVS(BR) Date: 25th June, 1974

MEMORANDUM B
SUBJECT : Offer of appointment to the post of Physical Education
Teacher.
With reference to his/her application for the above post, the
undersigned offers to Shri Arunkumar Madhavrao Siddhaye, a C
temporary post of Physical Education Tr. in the Kendriya Vidyalaya
Sangathan on an initially pay of................................ .

2. ···················································
3. The services of the appointee are terminable by one month's notice D
on either side without any reasons being assigned therefor. The
appointing authority, however, reserves the right of terminating the
services before the expiry of the stipulated period ofnotice by making
payment to the appointee of a sum equivalent to the pay and allowances
for the period of notice or the unexpired portion
thereof.................................. E
4. If he/she accepts the offer on the terms and conditions stipulated,
he/she may please send his/her acceptance to the undersigned within
7 days from the receipt of this letter in the form attached and report
for duty to the Principal of the above mentioned Kendriya
Vidyalaya............................................." F
The Assistant Commissioner, Kendriya Vidyalaya Sangathan, Bombay Region
issued an order on 21.3.1975 terminating the services of the respondent with
effect from 30.4.1975 and the said order reads as under :

"Shri Arunkumar Madhavrao Siddhaye, PHT, KV, Dehu Road is hereby G
informed that his services are no longer required by the Sangathan
with effect from 30.4.75 (A.N.). His services will therefore stand
terminated with effect from the above date as per terms and conditions
of appointment mentioned in the offer of appointment No. F.4-5/74/
KVS(BR) dated 25.6.74 issued to Shri Siddhaye and the same duly
• H
884 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A accepted by him vide his letter dated I .7.74. This may be treated as
One Months' Notice.
Sd/-
(MADAN GOPAL)
Assistant Commissioner"
B 5. The principal ground taken by the respondent in the suit instituted
by him was that an enquiry had been conducted behind his back in which
a finding had been recorded against him and on the basis of the said enquiry ,
his services had been terminated and thus it was not a simple order of
termination of services but had been passed by way of punishment, in
C complete violation of principles of natural justice. It is, therefore, necessary
to refer to the relevant facts in this regard. One Capt. V.K. Balasubramanyam
sent a letter to the Station Commander, Dehu Road on 2 I .2.1975 stating that
his son Master V.K. Srinivasalu, who was studying in lXth Class had developed
serious chest pain on 18th February, 1975 and in spite of his having informed
that he was not well, the PT teacher made him to run six rounds (approx. 4
D kms) around the school. As the child was not well, he was examined in the
Military Hospital on 20th February and the doctor prescribed him some
medicines and gave a written advice that he should not do P.T. or other
exercises for a week. This was shown to the class teacher who gave a note
in writing to the PT teacher exempting the child from PT and other exercises.
E In spite of doctor's advice and written note of the class teacher, the PT
teacher forced the boy to do PT and being unable to do so, he was beaten.
It was further mentioned in the letter that this was not the only occasion when
corporal punishment had been meted out to the students by the respondent
as earlier also this fact had been brought to the notice of the executive
committee of the school by Lt. Col. G.V. Lucas and the Principal had promised
F to stop the mal-practice as corporal punishment was against the rules of the
Central School. The Principal of the school forwarded the complaint of Capt.
Balasubramanyam to the Regional office of Kendriya Vidyalaya Sangathan,
Bombay on 25.2.1975. The Assistant Commissioner, Kendriya Vidyalaya
Sangathan then wrote to the Principal on 1.3.1975 to send a report along with
G original statements regarding the complaint of beating to the students by the
respondent. For the purposes of sending the report an enquiry was conducted
in which statements of eight students including Master V.K. Srinivasalu were
recorded. The Principal had earlier asked for an explanation from the respondent
vide his letter dated 26.2.1975 which he had given. The statement of the
students was recorded in the presence of the respondent wherein he was
H allowed to put questions to them. He was again asked to give his own "
KENDR.IYA VIDYALAYA SANGATHAN "· ARUNKUMAR MADllAVRAO SINDDll' YE [G.P. MATHUR, J.] 885

' statement, which he refused to give. The enquiry officer then submitted his A
opinion on 7.3.1975 and the same is being reproduced below :-

OPINION OF THE ENQUIRY OFFICER

"Based on the evidence adduced above, I am of the opinion that
Shri SHIDE, PT Teacher, Central School, Dehu Road has meted out B
corporal punishment to Master VK Srinivasalu, Student IX Std. on 18
Feb. 75. I further feel that he has been indulging in the practice of
meting out corporal punishment to students from time to time with
... varying degrees of severity.

I recommend that disciplinary action be taken against Shri Shide. c
Sd/-

Enquiry Officer"

The Assistant Commissioner, Kendriya Vidyalaya Sangathan, Bombay Region
D
thereafter passed the impugned order on 21.3.1975 by which the respondent
was informed that his services were no longer required and the same shall
.. stand terminated with effect from 30.4.1975.

6. The findings recorded by the High Court on the basis of which the
judgments and decrees passed by the two Courts below were set aside and E
the second appeal preferred by the respondent was allowed decreeing his
suit, require to be noticed. In para 9, the High Court has held :-

"9 ............ Furthermore it has been indicated by the case itself that the
order of termination of service was after initiation of the enquiry in
which articles of imputation and charge were served on the appellant F
and some witnesses were examined. It implicitly conveys the
information that the said enquiry was either not brought or completed.
Had that been completed, the circumstances which were against the
appellant would have been put to him for the purpose of affording him
an opportunity of submitting his explanation to those circumstances,
otherwise there would not have been order which would have been G
conveyed to the appellant that the said enquiry was dropped. None
of these two things did happen and therefore, there is irresistible
conclusion coming up showing that the order of termination of service
of the appellant was nothing but the result of said enquiry which was
• neither completed legally nor dropped." H
886 SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A Again in para 11, the High Court held :- ,
"11. In the present case both the Courts below have committed gross
error of law in ignoring that the said order of termination of service
of the appellant followed the said enquiry neither legally completed
nor dropped. Had it been the case that the said enquiry was dropped
B then there should have been some meaning to say that the said order
of termination of service was not carrying any stigma. But in this case
that is not so. Without completion of that enquiry, service of appellant
has been tenninated and the appellant has been put under dolour by
uncertainty of future ........................................ "

C 7. The learned counsel for the appellant Kendriya Vidyalaya Sangathan
has submitted that the enquiry held against the respondent was not a
disciplinary enquiry but was only in the nature of a preliminary or fact finding
enquiry. In fact the enquiry officer after holding of the fact finding enquiry
had himself recommended that disciplinary action be taken against the
D respondent. However, instead of taking disciplinary action, the appellant
thought it proper to tenninate the services of the respondent in terms of the
appointment order as he was a purely temporary employee and his services
were tenninable by one month's notice on either side without assigning any
reasons. Learned counsel for the appellant has further submitted that the
High Court has grossly erred in equating a preliminary or fact finding enquiry
E with that of a regular disciplinary enquiry and in coming to a conclusion that
the services of the respondent had been tenninated by way of punishment.
It has also been urged that the tennination order is a simple order passed in
tenns of the appointment order and it is non-stigmatic and does not visit the
respondent with any evil consequences and in such circumstances the High
F Court manifestly erred in setting aside the judgments and decrees passed by
the two Courts below and in decreeing the suit filed by the respondent.
Learned counsel for the respondent has, on the other hand, submitted that
on the basis of a complaint made by Capt. V.K. Balasubramanyam regarding
beating of his son, an enquiry had been held wherein statements of students
had been recorded and in these circumstances the order tenninating the
G services of the respondent was based upon the result of the said enquiry and
had been passed by way of punishment. It has been urged that as the
respondent had not been afforded any opportunity to defend himself, there
was complete violation of principles of natural justice and as the order had
been passed by way of punishment it was wholly illegal and the High Court,
H therefore, rightly decreed the suit filed by the respondent.
KENDRIYA \WY ALA\' A S.-\NGATllAN .-. ARUNKUMAR MADllA \'RAO SINDDHAYE [G.P. MATHUR. I J 887

8. We have given careful consideration to the submissions made by A
learned counsel for the parties and have also examined the material on record.
It may be mentioned, at the outset, that the respondent was appointed as PT
teacher in Kendriya Vidyalaya Sangathan and as such he does not hold a civil
post within the meaning of Article 311 of the Constitution and the said
provision does not apply to him. One of the terms of the appointment order
(offer of appointment) dated 25.6.1974 was that his services were terminable B
by one month's notice on either side without assigning any reasons. The
respondent accepted the appointment order and joined duty and thereby
accepted the conditions of appointment, namely, that his services were
terminable by one month's notice without any reasons being assigned. His
services were terminated vide notice dated 21.3.1975 with effect from 30.4.1975 C
in terms of the appointment order. The order terminating the services of the
respondent is a wholly innocuous order and does not contain any stigma
against him. It may also be noted that the notice of termination of services
was served upon the respondent when he had put in less than 9 months of
service.
D
9. The question which arises for consideration is, whether the order of
termination of services of the respondent had been passed by way of
punishment or it had been passed in accordance with the conditions mentioned
in the appointment order by which the respondent had been appointed on a
temporary post of Physical Education Teacher. If it is found that the termination E
of services was by way of punishment, another question may arise whether
a formal departmental enquiry was held prior to the passing of termination
order and whether the respondent was given adequate opportunity to defend
himself in the said enquiry. It will be seen that the complaint made by Capt.
B.K. Balasubramanyam about forcing his son Master V.K. Srinivasalu to do
six rounds (4 Kms.) around the school when he was having chest pain and F
was unwell and further forcing him to do PT and other exercises in spite of
advice of the doctor and also giving him beating was forwarded by the
Principal to the Regional Office of Kendriya Vidyalaya Sangathan, Bombay.
The Assistant Commissioner of the Kendriya Vidyalaya Sangathan asked the
Principal to submit a report along with original statements of the students, G
who had been subjected to beating by the respondent. The Principal was not
an eye witness of the incident relating to Master V.K. Srinivasalu and also of
the corporal punishment which was awarded by the respondent to the other
students. Therefore, in order to ascertain the complete facts it was necessary
to make enquiry from the concerned students. If in the course of this enquiry
the respondent was allowed to participate and some queries were made from H
888 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A the students, it would not mean that the enquiry so conducted assumed the
..
shape of a formal departmental enquiry. No articles of charges were served
upon the respondent nor the students were asked to depose on oath. The
High Court has misread the evidence on record in observing that articles of
charges were served upon the respondent. The limited purpose of the enquiry
was to ascertain the relevant facts so that a correct report could be sent to
B the Kendriya Vidyalaya Sangathan. The enquiry held can under no
circumstances be held to be a formal departmental enquiry where the non-
observance of the prescribed rules of procedure or a violation of principle of
natural justice could have the result of vitiating the whole enquiry. There
cannot be even a slightest doubt that the Assistant Commissioner, Kendriya
C Vidyalaya Sangathan, Bombay Region, terminated the services of the
respondent in accordance with the tenns and conditions mentioned in his
appointment order which expressly conferred power upon the appointing
authority to tenninate the respondent's services by one month's notice without
assigning any reasons. The services of the respondent were, therefore, not
terminated by way of punishment. •
D
10. A similar question was considered in considerable detail in State of
Maharashtra v. Veerappa R. Saboji, AIR (1980) SC 42, and it was observed
as under: -

"Ordinarily and generally the rule laid down in most of the cases by
E this Court is that you have to look to the order on the face of it and
find whether it casts any stigma on the Government servant. In such
a case there is no presumption that the order is arbitrary or mala fide
unless a very strong case is made out and proved by the Government
servant who challenges such an order."
F In State of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla, [1991) I SCC
691, the employee was appointed on ad hoc basis on 18.2.1977 as an Assistant
Auditor and his employment was extended on several occasions and the last
extension was granted on 21.1.1980, which was to expire on 28.2.1981. His
services were terminated on 23.9.1980. The termination order was challenged
G on the ground that certain allegations of misconduct had been made against
him regarding which an ex-parte inquiry was held wherein he was not given
any opportunity of hearing. The High Court accepted the plea of the employee
that the order of termination of services was founded on the allegations of
misconduct and the ex-parte equiry report and accordingly quashed the
termination order. This Court set aside the judgment of the High Court with .
H
KENDRIYA VIDYALA YA SANGATHAN •·. ARUNKUMAR '1ADHA VRAO SINDDllAYE [G.P MATHUR, J ] 889

the following observations:- A
"The respondent being a temporary government servant had no
right to hold the post, and the competent authority terminated his
services by an innocuous order of termination without casting any
stigma on him. The termination order does not indict the respondent
for any misconduct. The inquiry which was held against the respondent B
was preliminary in nature to ascertain the respondent's suitability and
continuance in service. There was no element of punitive proceedings
t as no charges had been framed, no inquiry officer was appointed, no
findings were recorded, instead a preliminary inquiry was held and on
the report of the preliminary inquiry the competent authority terminated C
the respondent's services by an innocuous order in accordance with
the terms and conditions of his service. Mere fact that prior to the
issue of order of termination, an inquiry against the respondent in
regard to the allegations of unauthorized audit of Boys Fund was
held, does not change the nature of the order of termination into that
of punishment as after the preliminary inquiry the competent authority D
took no steps to punish the respondent, instead it exercised its power
to terminate the respondent's services in accordance with the contract
of service and the Rules. The allegations made against the respondent
contained in the counter-affidavit by way of defence filed on behalf
of the appellants also do not change the nature and character of the E
order of termination."

In S.P. Vasudeva v. State of Haryana and Ors., AIR (1975) SC 2292, it was
held that where an order of reversion of a person who had no right to the
post, does not show ex facie that he was being reverted as a measure of
punishment or does not cast any stigma on him, the courts will not normally F
go behind that order to see if there were any motivating factors behind that
order. Both these decisions have been rendered by Benches of three learned
Judges.

1l. In Ravindra Kumar Misra v. UP. State Handloom Corporation Ltd,
and Anr., AIR (1987) SC 2408, ttie appellant had been appointed on 30. 10.1976 G
and had got two promotions while still working in temporary status and by
1982 he had been working as Deputy Production Manager. On 22.11.1982 he
was placed under suspension and the suspension order recited that as a
result of preliminary inquiries made by the Central Manager it had come to
' notice that the appellant was responsible for misconduct, dereliction of duty,
H
890 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A mismanagement and showing fictitious production of terrycot cloth. The
suspension order was revoked on 1.2.1983 and thereafter on I0.2.1983 a
simple order terminating his services was passed reciting that his services
were no more required and his services would be deemed to be terminated
from the date of receipt of the notice. It was further mentioned therein that
he would be entitled to receive one month's salary in lieu of notice period.
B The termination order was challenged by the appellant on the ground that the
same was punitive in nature, which was also demonstrated from the fact that
shortly before the order of termination a suspension order had been passed
wherein a specific charge of misconduct against him was mentioned. After
referring to several earlier decisions this Court repelled the challenge made by
C the employee by observing as under in paragraph 6 of the Report: -

" ............... .In several authoritative pronouncements of this Court, the
concept of 'motive' and 'foundation' has been brought in for finding
out the effect of the order of termination. If the delinquency of the
officer in temporary service is taken as the operating motive in
D tenninating the service, the order is not considered as punitive while
if the order of termination is founded upon it, the termination is
considered to be a punitive action. This is so on account of the fact
that it is necessary for every employer to assess the service of the
temporary incumbent in order to find out as to whether he should be
confirmed in his appointment or his services should be terminated. It
E may also be necessary to find out whether the officer should be tried
for some more time on temporary basis. Since both in regard to a
temporary employee or an officiating employee in a higher post such
an assessment would be necessary merely because the appropriate
authority proceeds to make an assessment and leaves a record of its
F views the same would not be available to be utilized to make the order
of termination following such assessment, punitive in character."

12. In Pavanendra Narayan Verma v. Sanjay Gandhi PG! of Medical
Sciences and Anr., [2002] I SCC 520, after referring to large number of earlier
decisions, the law on the point has been very clearly elucidated in the
G following manner:-

"One of the judicially evolved tests to determine whether in
substance an order of termination is punitive is to see whether prior
to the termination there was (a) a full-scale formal enquiry (b) into
allegations involving moral turpitude or misconduct which (c)
H
KENDRIYA VID\'ALAYA SANGATHAN "- ARUNKL'MAR MADHAVRAO SINDDHA\"E (G.P. MATHUR, J. I 89 J

culminated in a finding of guilt. If all three factors are present the A
termination has been held to be punitive irrespective of the form of
the terr11ination order. Conversely if any one of the three factors is
missing, the termination has been upheld

B
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 C
of termination of a probationer's appointment, is also not stigmatic. 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."

I3. In State of Punjab v. Sukhwinder Singh, [2005] 5 SCC 569, a Bench
of three learned Judges to which one of us was a party, after referring to D
several earlier decisions of this Court including those referred to above, laid
down the principle as under in para 19 of the report :

"19. It must be borne in mind that no employee whether a probationer
or temporary will be discharged or reverted, arbitrarily, without any
rhyme or reason. Where a superior officer, in order to satisfy himself E
whether the employee concerned should be continued in service or
not, makes inquiries for this purpose, it would be wrong to hold that
the inquiry which was held, was really intended for the purpose of
imposing punishment. If in every case where some kind of fact finding
inquiry is made, wherein the employee is either given an opportunity F
to explain or the inquiry is held behind his back, it is held that the
order of discharge or termination from service is punitive in nature,
even a bona fide attempt by the superior officer to decide whether the
employee concerned should be retained in service or not would run
the risk of being dubbed as an order of punishment. The decision to
discharge a probationer during the period of probation or the order G
to terminate the service of a temporary employee is taken by the
appointing authority or administrative heads of various departments,
who are not judicially trained people. The superior authorities of the
departments have to take work from an employee and they are the
best people to judge whether an employee should be continued in H
892 SUPREME COURT REPORTS (2006) SUPP. 7 S.C.R.

A service and made a permanent employee or not having regard to his
performance, conduct and overall suitability for the job. As mentioned
earlier a probationer is on test and a temporary employee has no right
to the post. If mere holding of an inquiry to ascertain the relevant
facts for arriving at a decision on objective considerations whether to
continue the employee in service or to make him permanent is treated
B as an inquiry "for the purpose of imposing punishment" and an order
of discharge or termination of service as a result thereof "punitive in
character", the fundamental difference between a probationer or a
temporary employee and a permanent employee would be completely
obliterated, which would be wholly wrong."
c 14. As shown above, the nature of enquiry conducted against the
respondent was merely a preliminary or fact finding enquiry and no formal full
scale departmental enquiry had been conducted against the respondent. In
fact, the enquiry officer had himself recommended that disciplinary action be
taken against the respondent. However, the authorities chose not to hold a
D disciplinary enquiry against the respondent and did not serve him with any
article of charges or take any further steps in that regard. Instead they chose
to exercise power under the terms and conditions of the appointment order.
The termination order is wholly innocuous and does not cast any stigma
upon the respondent nor it visits him with any evil consequences. The High
E Court seems to have proceeded on a wholly wrong basis and has treated the
enquiry which was only a preliminary or fact finding enquiry into a regular
disciplinary enquiry, which was not the case here. In these circumstances the
judgment of the High Court is wholly erroneous in law and has. to be set
aside.

F 15. Learned counsel for the respondent has relied upon Samsher Singh
v. State of Punjab & Anr., (1974] 2 SCC 831, Bishan Lal Gupta v. State of
Hmyana & Ors., [ 1978] I SCC 202, Anoop Jaiswal v. Government of India
& Anr., (1984] 2 SCC 369 and Dipti Prakash Banerjee v. Satyendra Nath Bose
National Centre for Basic Sciences, Calcutta & Ors., [1999] 3 SCC 60 in
support of his submission that the impugned order of termination of services
G had been passed by way of punishment and as the same had been done
without affording an opportunity of defending himself, the termination order
was illegal. In Bishan Lal Gupta (supra) it was held where the intention
behind an inquiry against a probationer was not to hold a full departmental
trial to punish but a summary inquiry to determine only suitability to continue
a in service of the probationer and the probationer was given ample opportunity
KEN DR IYA VIDY ALAYA SANGATHAN '" ARUNKUMAR MADHA\'RAO SINDDHA YE [G.\>. MATHUR. J. J 893

lo answer in writing whatever was alleged against him in show cause notice, A
the innocuous order of termination following such summary inquiry could not
be said to be an order of punishment which entitled him to a full-fledged
inquiry contemplated by Article 311 of the Constitution. In Anoop Jaiswal
(supra) and Dipti Prakash Bane1jee (supra) it was found as a fact that the
misconduct alleged was the foundation of the impugned order of termination
of services. It was after analysis of all earlier decisions that the principle of B
law has been laid down in Pavanendra Narayan Verma v. Sanjay Gandhi PG!
of Medical Sciences, referred to above. Therefore, the authorities cited by
learned counsel for the respondent do not advance his case in any manner.

16. Jn the result, the appeals are allowed and the judgment and decree C
dated 5.3.2002 passed in Second Appeal No.463 of 1988 and also the order
dated 3.11.2003 passed in review petition by the High Court are set aside. The
decrees passed by the two Courts below dismissing the suit filed by the
respondent are affirmed. No order as to costs.

v.s. Appeals allowed. D