Holding

The order terminating the services of the temporary Sub‑Inspector was a termination simpliciter, not a punitive dismissal, and therefore did not contravene Article 311(2).

Summary

The appellant, a temporary Sub‑Inspector of Police, was removed from service after his name was placed on a list of officers of low reputation during a police‑wide purge. He had earlier faced disciplinary proceedings for a second marriage, which were quashed. He challenged the termination as a punitive dismissal violating Article 311(2) of the Constitution. The Supreme Court held that termination of a temporary government servant, when based on suitability and not intended as punishment, is a "termination simpliciter" and does not invoke the safeguards of Article 311(2). Consequently, the order was not punitive and the appeal was dismissed.

Issues considered

Whether the termination of a temporary government servant amounts to a punitive dismissal requiring compliance with Article 311(2) of the Constitution.
Whether the order terminating the appellant's services was passed with the motive of punishment or merely on administrative suitability grounds.

Legislation cited

Constitution of Indias. 311(2)

Subjects

termination simplicitertemporary government servantArticle 311(2)punitive dismissalpolice servicedisciplinary proceedingsconstitutional law

Judgment

613

NEPAL SINGH A

i
i v.
' STATE OF UP. AND ORS.
~
), April 15, 1980
[R. S. SARKARIA AND R. S. PATHAK, JJ.] B
~·

~ Termination Sinzpliciter-An order tetminating the services of a te1nporary
.Government servant and ex-facie innocuous in that it does not cast any
stignuz on tile Government servant or visits him with penal consequences
a1nounts to termination simpliciter-Order does not contravene Article 311 (2)
of the Constitution of India 1950.
The appellant was a temporary sub-inspector of Police. While he v.•as
c
posted at Shahjahanpur the SuperintenUent of Police, Shahjahanpur con1-
menced disciplinary proceedings against him on the charge that he had
violated Rule 29 of the U.P. Government Servants Conduct Rules, 1956 in as
n1uch as without prior permission of the Government he had contracted a
second marriage in November, 1964, while his first wife was alive. At the stage
of evidence, the Deputy Inspector General of Police, Bareilly made an order D
on March 12, 1970 quashing the disciplinary proceedings on the ground that
the offence has been committed at Pithoragarh, situated in a different police
roang~, and therefore, the proceeding_s ta.ken against the appellant were. . . incompe-
tcnt.

1\-feanwhile, on March 8, 1970, the Inspector General of Police, Uttar
Pradesh, had issued a letter to all Superintendents of Police in the State direct-
ing them to submit a list of Sub-inspectors whose reputation and integrity \\'ere
E
very low or who were generally involved in scandalous conduct, drinking, im-
morality or other acts injurious to the reputation of the Police Service or who
were involved encouraging crime. The Superintendent o·f Police, Shahjahanpur
included the name of the appellant in the list submitted by him. On April 27,
1970, the Dy. Inspector General of Police made an order terminating the
services of the appellant, reciting that the services of the appellant ''are no
more required and that he will be considered to have ceased to be in
F
service .... ''

The appell•ant filed a Writ Petition against the order tern1inating his services
and claimed that the order contravened .A.rticle 311(2) of the Constitution
J inasmuch as it was an order in1posing the punishment of dismissal or rem9val
from service without satisfying the conditions prescribed therein. Allegations
of fnala/i<Je were also iµade. The Writ Petition was dismissed. An appeal to the G
Division Bench was also dismissed. Hence the appeal by special leave.

Dismissing the appeal, the Court.

}J.ELD : 1. It is now settied law that an order terminating the services of
a temporary Government servant and ex facie innocuous in that it does not
-cast any stigma on the Government ser\·ant or visits him with penal conse- B
quences must be regarded as effecting a termination simpliciter, but if it is
diseovered on the basis of material adduced that although innocent in its
614 SUPREME COURT REPORTS [1980] 3 s.c.R.

A terms the order was passed in fact 'vith a view to punishing the Government
servant, it is a punitive order which can be passed only after complying with
Art. 311(2) of the Constitution. [615H, 616A·B]
2. The question which calls for determination in all such cases is whether
the facts satisfy the criterion repeatedly laid down by this Court that an order
is not passed by wa.y of punishment, and is merely an order of termination
B simpliciter, if the material against the Government servant on which the
superior authority has acted constitutes the · motive and not the foundation for
the order. The application of the test is not always easy. In each case it is
necessary to examine the entire range of facts carefully and consider whether
in the light of those facts the superior authority intended to punish the Gov-
ernment servant or, having regard to his character, conduct and suitability
in ;elation to the post held by him it was intended simply to terminate his
c services. The function of the Court is to discover the nature of the order by
attempting to ascertain \.Vhat was the motivating consideration in thf; mind of
the authority which prompted !he order. [616B-E]
In the instant case: (a) the appellant was a temporary Government servant,
and the question whether he should be retained in service was u matter which
arose directly during the drive instituted by the Inspector General of Police
in March 1970 for weeding out Police Officers who were unsuitable or unfit
D to be continued in ser\·ice; (b) the material which the Superintendant of Police
considered \Vas sufficient to lead to the conclusion that the appellant, who \Vas
a tempofary Government seryant, was not suitable for being retained in
service-his general character and conduct led to that impression and there
was nothing to show that the impugned order was made by way of punish-
ment; ( c) the circumstance that a disciplinary proceeding had been instituted
against him earlier does not in itself lead to the inference that the impugned
E order was by way of punishment, and (d) the impugned order was not intended
by way of punishment. [616£-G]
State of Maharashtra v. Veerappa R. Saboii and Anr. [1980] 1 S.C.R. 551·
A.I.R. 1980 SC 42; applied.
State of Bihar and Ors. v. Shiva Bhikshuk Mirnra, [1971] 2 S.C.R. 191;
State of U.P. & Ors. v. Sughar Singh [1974) 2 S.C.R 335 and Regional
Manager & Anr. v. Pawan Kumar Dubey; [1976) 3 S.C.R. 540; distinguished.

C1v1L APPELLATE JurusDICTION : Civil Appeal No. 621 of 1973.
From the Judgment and Order dated 13-3-1973 of the Allahabad ;
High Court in Sp!. Appeal No. 9 /73). ~
G V. l. Francis for the Appellant.
0. P. Rana for the Respondent.
The Judgment of the Court was deHvered by
PATHAK, J. This appeal by special leave arises out of a writ petition
H filed by a police officer aggrieved by the termination of his services.
The appellant was a temporary Sub-Inspector of Police. He was
posted at Sliahajahanpur in 1969. The Superintendent of Police,
NEPAL S!NGHV. U.P. STATE (Pathak, J.) 615

Shahjahanpur commenced disciplinary proceedings against the appellant A
on the charge that he had violated Rule 29 of the U .P. Government
Servants Conduct Rules, 1956 ;nasmuch as without prior permission of
the Government he had contracted a second marriage in November,
1964, while his first wife was alive. The charge was denied by the
appellant. The Superintendent of Police recorded evidence. But at
this stage the Deputy Inspector General of Police Bareilly made an B
order ou March 12, 1970 quashing the disciplinary proceedings on the
ground that the offence had been committed at Pithoragarh, s;tuated
in a different police range, and therefore the proceedings taken against
the appellant were incompetent.

Meanwhile, on March 8, 1970, the Inspector General of Police, c
Uttar Pradesh, had issued a letter to all Superintendents of Police in
the State directing them to submit a list of Sub-Inspectors whose repu-
tation and integrity were very low or who were generally involved in
scandalous conduct, drinking, immorality or other acts injurious to the
reputation of the Police service or who were involved in encouraging
D
crime. The Superintendent of Police, Shahjahanpur included the name
of the appellant in the list submitted by him. On April 27, 1970, the
Deputy Inspector General of Police made an order terminating the
services of the appellant. The order recites that the services of the
appellant, "are no more required and that he will be considered to
have ceased to be in service ........ "

The appellant filed a writ petition against the order terminating his
services, and claimed that the order contravened Article 311 (2) of the
Constitution inasmuch as it was an order imposing the punishment of
dismissal or removal from serrice without satisfying the conditions
prescribed in that provision. It was also alleged that the order wa5
passed mala fide. The writ petition was dismissed by a learned Single
Judge of the Allahabad High Court. An appeal was dismissed by a
'
Division Bench of the High Court on March 13, 1973.

In the appeal before us, it is urged for the appellant that the High
Court was wrong in holding that the order terminating the appellant's G
services was ,not an order imposing a punishment. We are referred
_.._ to the disciplinary proceedings instituted against the appellant in
1969 and it is submitted that although the order of termination does
not refer to those proceedings and the charge on which they were
commenced, the appellant's services were terminated with a view _to
punish him for contracting a second marriage without prior permis- H
sion of the Government. We are satisfied that the contention is
without substance. It is now settled law that an order terminating the
6i6 SUPREME COURT REPORTS [1980) 3 S.C.It.

A services of a temporary Government servant and ex facie inriocnous in
that it does not cast my stigma on the Government servant or visits him
with penal consequences must be regarded as effecting a termination
simpliciter, but if it is discovered on the basis of material adduced
that although innocent in its terms the order was passed in fact with J
a view to punishing the Government servant, it is a punitive order
B which can be passed only after complying 'vith Article 311(2) of the
Constitution. The scope of the enquiry called foi: in such a case has
been outlined by one of us in State of Maharashtra v. Veerappa R.
Saboji and another.(') But the question which calls for determina-
tion in all such cases is whether the facts satisfy the criterion re-
c peatedly laid down by this Court that an order is not passed by way
of punishment, and is merely an order of termination simpliciter; if
the material against the Government servant on which the superior
authority has acted constitutes the motive and not the foundation for
the order. The application of the test is not always easy. In each
case it is necessary to examine the. entire range of facts carefully and
D consider whether in the light of those facts the superior authority
intended to punish the Government servant or, having regard to his
character, conduct and suitability in relation to the post held by him
it was intended simply to terminate his services. The function of the
court is to discover the nature of the order by attempting to ascertain
what was the motivating consideration in the mind of the authority
E which prompted the order.
In the present appeal, the appellant was a temporary Government
servant. The question whether he should be retained in service was
a matter which arose directly during the drive instituted by the Ins-
pector General of Police in March, 1970 for weeding out police
F officers who were unsuitable or unfit to be continued in service. The
Superintendent of Poliee prepared a list of Sub-Inspectors functioning
within his jurisdiction, and included the name of the appellant in that
list. The material which he considered was sufficient to lead to the
conclusion that the appellant, who was a temporary Government
servant, was not suitable for being retained in service. His general
G
character and conduct led to that impression. There is nothing to
show that the impugned order was made by way of puniShment. The
circumstance that a disciplinary proceeding had been instituted against
him earlier does not in itself lead to the inference that the impugned
order was by way of punishment. As we have observed, that is a
H conclusion which must follow from the nature of the intent behind the
order. That intention can be discovered and proved, like any other
(I) [1980] I S. C.R. 551-A.I.R. 1980 S. C. 42.
NEPAL SINGH v. U.P. STATE (Pathak, J.) 61 7

fact, from the evidence on the record. ln this case, it is not proved A
that the impugned order was intended by way of punishment.
Learned counsel for the appellant relies on Stale of B ihar & Ors.
v. Shiva Bhikshuk Mishra(') and State of Uttar Pradesh & Ors. v.
Sugher Singh.( 2 ) Both were cases of permanent Government ser-
vants. And as regards Regional Manager & Anr. v. Pawan Kumar B
Dubey,(') to which also reference has been made, that was a case
where on the facts the Court found that there were no administrative
reasons for the impugned reversion.
The appeal fails and is dismissed, but in the circumstances there
is no order as to costs. c

S. R. Appeal dismissed.

(I) [1971] 2 S. C.R. 191.
(2) [1974] 2 S. C. R. 335•
• (3) [19761 3 S. C: R. 540.