PETITIONER:
NEPAL SINGH
Vs.
RESPONDENT:
STATE OF U. P. ORS.
DATE OF JUDGMENT09/11/1984
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
MADON, D.P.
THAKKAR, M.P. (J)
CITATION:
1985 AIR 84 1985 SCR (2) 1
1985 SCC (1) 56 1984 SCALE (2)693
CITATOR INFO :
R 1986 SC1626 (30)
RF 1991 SC1490 (3)
RF 1992 SC 496 (26)
ACT:
Public Service-Termination of Service of a temporary
government servant on the allegation of misconduct and
corruption without following provisions of Article 311(2) of
the Constitution is void and violative of Articles 14 and 16
Competent Authorities cannot circumvent the mandate of
Article 311(2) and resort to the guise of ex-facie innocuous
termination order-U.P. Government Servants Conduct Rules
1956, Rule 29 read with Constitution of India, Articles
14,16 and 311 (2). D
HEADNOTE:
On an allegation that the appellant, a temporary Sub-
inspector of Police, while posted at Pithoragarh had
contracted in November 1964 a second marriage, while his
first wife was alive, without obtaining the prior permission
of the Government and in violation of Rule 29 of the U. P.
Government Servants' Conduct Rules, 1956 the Superintendent
of Police, Shahjahanpur initiated in 1968 disciplinary
proceedings under section 7 of the Police Act against him. 1
However, after the evidence was closed in January 1970, the
Superintendent noticed that his action was without
jurisdiction and pointed out the same lo the Deputy
Inspector General of Police, Bareilly Range, who ordered the
quashing of the disciplinary proceedings on March 12, 1970.
About this time the Inspector General of Police, Uttar
Pradesh issued a circular letter to the Superintendent of
Police throughout the State requiring them to submit a list
of Sub-Inspectors who fell in any of the following three
categories:
1. Whose reputation and integrity is very low and/or
2. Who are generally involved in scandals, like drinking,
immorality, etc. which blackens the face of the U. P.
Police and/or
3. Everywhere they are a big problem because they
encourage gambling, excise offences, brothels,
criminals, etc.
The Superintendent of Police, Shahjahanpur drew up a
list of such Sub-Inspectors on February S, 1970 and directed
them to appear before the Deputy Inspector General of
Police, Bareilly Range on February 10, 1970 during his
2
inspection of the district. The list included the name of
the appellant with the note:
"A corrupt officer, who is not straight forward.
Married two wives against Government Servants Conduct
Rules. Does not do his duty sincerely. Wherever he goes
creates problem".
Thereupon, on April 27, 1970, the Deputy Inspector
General of Police, Bareilly Range, made an order purporting
to be under the rules published by Notification No. 230/
1953 dated January 30, 1953 that the appellant's services
were not required any more and were terminated with one
month's pay in lieu of notice.
The appellant thereupon filed a Writ Petition in the
High Court against the order terminating his services and on
November 17, 1972 a learned Single Judge of the Allahabad
High Court dismissed the Writ Petition holding that the
order of termination was passed bonafide, that it was an
order of termination simpliciter and that it did not
constitute the removal of the appellant from service. On
appeal filed by the appellant that vice was endorsed by a
Division Bench of the High Court by its judgment and order
dated March 13, 1973 and the appeal was dismissed holding
that the impugned order was ex-facie innocuous and could not
be said to cast any stigma or be regarded as imposing the
punishment of dismissal or removal. Hence the appeal by
Special Leave of the Court.
Allowing the appeal, the Court
^
HELD; 1. It is well settled that in dealing with a
government servant the State must conform to the
constitutional requirements of Articles 14 and 16 of the
Constitution. An arbitrary exercise of power by the State
violates these constitutional guarantees, for a fundamental
implication in the guarantee of equality and of protection
against discrimination is that fair and just treatment will
be accorded to all, whether individually or jointly as a
class. When a government servant satisfies the Court prima
facie that an order terminating his services violates
Articles 14 and 16 the competent authority must discharge
the burden of showing that the power to terminate the
services was exercised honestly and in good faith, on valid
considerations fairly and without discrimination. [S-E-G]
2. Where the services of a government servant on
temporary appointment arc terminated on the ground that his
reputation for corruption makes him unsuitable for retention
in the service, the reputation for corrupt behavior must be
based on something more than a mere allegation. The State,
and for that matter any statutory employer must take great
care when proceeding to terminate a career on the ground of
unsuitability, to ensure that its order is found in
definable material, objectively assessed and relevant to the
ground on which the termination is effected. [6-C-E]
In the instant case, the Superintendent of Police did
not apply his mind to the requirements of the case. The
Superintendent of Police has noted that the
3
appellant created problems wherever he went, but it is not
disclosed in the affidavits what those problems were and
that the problems were of the nature specifically indicated
by the circular issued by the Inspector General of Police.
The other grounds mentioned in the report of the
Superintendent of Police are equally vague and unspecific. [
6A-B]
3. Where allegations of misconduct are leveled against
a Government Servant, and it is : case where the provisions
of Article 311 (2) of the Constitution should be applied(l,
it is not open to the competent authority to take the view
that holding the enquiry contemplated by the clause would be
a bother or a nuisance and that therefore it is entitled to
avoid the mandate of that provision and resort to the guise
of an ex-facie innocuous termination order. The Court will
view with great disfavour any attempt to circumvent the
constitutional provision of Article 311 (2) in a case where
that provision comes into play.
[6-G-H, 7A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 621 of
1975
Appeal by Special leave from the Judgment and order
dated the 13th March, 1973 of the Allahabad High Court in
Special Appeal No.9 of 1973.
R.K Garg and M. Qamaruddin for the Appellant.
Prithvi Raj and Mrs. Shobha Dikshit for the Respondent.
The Judgment of the Court WCIS delivered by
PATHAK, J This appeal by special leave is directed
against the judgment and order of the Allahabad High Court
dismissing the appellant’s writ petition against an order
terminating his services.
The appellant, Nepal Singh, was employed in a temporary
capacity as Sub-Inspector of Police. He was serving at
Shahjahanpur in 1968 when the Superintendent of Police,
Shahjahanpur initiated disciplinary proceedings under S.7 of
the Police Act against him on the charge that while posted
at Pithoragarh he had, in November, 1964, contracted a
second marriage while his first wife was alive, and as this
was done without obtaining the prior permission of the
Government the appellant had violated Rule 29 of the U.P.
Government Servants’ Conduct Rules, 1956. The appellant
filed a reply and denied the charge. The oral testimony of
about twelve witnesses for the prosecution and an almost
equal number for the defence was recorded. But in January,
1970 the Superintendent
4
of Police, Shahjahanpur wrote to the Deputy Inspector
General of Police, Bareilly Range that as the act alleged
against the appellant related to the district of Pithoragarh
the disciplinary proceedings taken by him would be without
jurisdiction unless there was an existing order transferring
the proceedings from Pithoragarh to Shahjahanpur.
Accordingly, on March 12,1 970, the Deputy Inspector General
of Police, Bareilly Range ordered the quashing of the
disciplinary proceedings. It appears that no further action
was taken and the proceedings were dropped.
About this time the Inspector General of Police, Uttar
Pradesh issued a circular letter to the Superintendents of
Police throughout the State requiring them to submit a list
of Sub Inspector who fell in any of the following three
categories:
“1. Whose reputation and integrity is very low and/or
2. Who are generally involved in scandals, like
drinking, immorality etc. which blackens the face
of the U.P. Police’ and/or.
3. Everywhere they are a big problem because they
encourage gambling, excise offences, brothels,
criminals, etc.
The Superintendent of Police, Shahjahanpur drew up a
list of such Sub-Inspectors on February S, 1970 and directed
them to appear before the Deputy Inspector General of
Police, Bareilly Range on February 10, 1970 during his
inspection of the district. The list included the name of
the appellant with the note;
“A corrupt officer, who is not straight forward.
Married two wives against Government Servants Conduct
Rules. ‘ Does not do his duty sincerely. Wherever he
goes creates problem.”
Thereupon, on April 27,1970 the Deputy Inspector
General of Police, Bareilly Range, made an order purporting
to be under the rules published by Notification No. 230/II-
B-1953 dated January 30, 1953 that the appellant’s services
were not required any more and were terminated with one
month’s pay in lieu of notice.
The appellant filed a writ petition in the High Court
against
5
the order terminating his services and on November 17,1972 a
learned A Single Judge of the Allahabad High Court dismissed
the writ petition holding that the order of termination was
passed bonafide that it was an order of termination
simpliciter, and that it did not constitute the removal of
the appellant from service. That view was endorsed, on
appeal filed by the appellant, by a Division Bench of the
High Court by its judgment and order dated March 13,1973.
The learned judges have taken the view that the case in
respect of the appellant was covered by the first and third
of the three categories enumerated earlier, that is to say,
his integrity was low and he was a problem officer ‘ who
encouraged gambling, excise offences, brothels, criminals,
etc.” The allegation that he had married two wives against
the Government Servants Conduct Rules, 1956, the learned
Judges said, did not bring him within any of the three
categories as, in their view, the second marriage without
prior permission of the Government gave rise merely to a
tinkle charge. In view of the opinion that the impugned
order was ex facie innocuous and could not be said to cast
any stigma or be regarded as imposing the punishment of
dismissal or removal, the learned Judges dismissed the
appeal.
It seems to us that the High Court has failed to
consider the true content of the case set up by the
appellant. The entire thrust of the appellant’s case is that
in terminating the appellant’s Services the competent
authority treated him unfairly and arbitrarily. It is well
settled that in dealing with a Government servant the state
must conform to the constitutional requirements of Arts. 14
and 16 of the Constitution. An arbitrary exercise of power
by the State violates those constitutional guarantees, for a
fundamental implication in the guarantee of equality and of
protection against discrimination is that fair and just
treatment will be accorded to all, whether individually or
jointly as a class. When a Government servant satisfies the
Court prima facie that an order terminating his services
violates Arts. 14 and 16, the competent authority must
discharge the burden of showing that the power to terminate
the services was exercised honestly and in good faith, on
valid considerations fairly and without discrimination.
The High Court has observed that within the framework
of the three categories defined in the Inspector General’s
circular the allegation of a second marriage by the
appellant was of no significance, and that the principal
intent in terminating the appellant’s.
6
services was to rid the State of an unsuitable officer. The
Superintendent of Police has noted that the appellant
created problems wherever he went, but it is not disclosed
in the affidavits what were those “problems”. It is not
shown that the problems were of the nature specifically
indicated by the circular issued by the Inspector General of
Police We are unable to conclude from the material before us
that the Superintendent of Police applied his mind to the
requirements of the case.
The Superintendent of Police has also commented that
the appellant was a corrupt officer who was not
straightforward (whatever that might mean). On that we have
this to say. Where the a services of a Government servant on
temporary appointment are terminated on the ground that his
reputation for corruption makes him unsuitable for retention
in the service, the reputation for corrupt behavior must be
based on something more than a mere allegation. The other
grounds mentioned in the report of the Superintendent of
Police, which impressed the High Court, appear to us to be
equally vague and unspecific. The State, and for that matter
any statutory employer, must take great care when proceeding
to terminate a career on the ground of unsuitability, to
ensure that its order is founded in definable material,
objectively assessed and relevant to the ground on which the
termination is effected.
Proceeding from there, we may advert to a further
aspect of the case. It would seem that the dominating factor
which influenced the mind of the Deputy Inspector General of
Police was the allegation that the appellant had married a
second wife against the Government Servants’ Conduct Rules
it is clear that a full-fledged enquiry was instituted into
the matter, evidence was recorded but before any findings
could be rendered the enquiry was dropped for want of
jurisdiction. No attempt was made thereafter to institute
proper enquiry by the appropriate authority. In the
circumstances, it was not open to the Superintendent of
Police to mention in his report, as a statement of fact,
that the appellant had married a second time against the
Government Servants’ Conduct Rules. With the dropping of the
enquiry the allegation remained unverified. We may observe
that where allegations of misconduct are levelled against a
Government servant, and it is a case where the provisions of
Art. 311(2) of the Constitution should be applied, it is not
open to the competent authority to take the view that
holding the enquiry contemplated by that clause would be a
bother or a nuisance and
7
that therefore it is entitled to avoid the mandate of that
provision and resort to the guise of an ex facie innocuous
termination order. A The Court will view with great disfavor
any attempt to circumvent the constitutional provision of
Art.311 (2)in a case where that provision comes into play.
For all the aforesaid reasons, we are unable to uphold
the judgment and order of the High Court, and in the result
the appeal must he allowed.
The appeal is allowed and the order dated April 27,
1970 of the Deputy Inspector General of Police, U.P.
Bareilly Circle is quashed. The appellant is entitled to be
treated as continuing in service without interruption. It
will be open to the authorities to take fresh proceedings
against the appellant in accordance with law. It will also
be open to them to determine whether the appellant was
gainfully employed for the purpose of considering the extent
of relief, if any, to which he may be entitled pursuant to
our present order quashing the impugned order. In the
circumstances, there is no order as to costs.
S. R Appeal allowed.
8