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TMI Blog1984 (1) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... reached there. They all reached the place 22 minutes late i.e. by 6.15 A.M. when the rains had abated and the parade commenced at 6.15 A.M. It appears that earlier when a messenger sent by the Assistant Director had gone to call the probationers they had asked for a vehicle to go to the place as it was raining. This delay was considered as an incident which called for an enquiry. Explanation was called from all the probationers. The appellant was considered to be one of the ring leaders who was responsible for the delay. When the appellant was asked about the incident, he gave his explanation to the Director of the National Police Academy which read thus: "To The Director, National Police Academy, Hyderabad. Dear Sir, In reply to your memo dated 22nd June, 1981 I humbly submit that as for my being late in P.T. by 10. mts., I sincerely regret the lapse . But the second charge that I instigated others, to do so is totally baseless and without a single iota of truth. I request you Sir to make a thorough enquiry into such an allegation. I never had nor have such plebian mentally. Thanking you, Yours sincerely, sd/- Anoop Jaiswal" It would appear that the Director wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated under Article 311(2) of the Constitution and the relevant rules governing such an enquiry. He has also contended that the order is based on conjunctures and surmises and by way of illustration he has referred us to paragraph 13 of the counter affidavit which reads thus: "Para 13: The petitioner did not conduct himself fully in accordance with the prescribed rules and regulations during his training period. On one occasion when he was sanctioned leave for 16 days in the month of May, 1981, he did not report himself for duty in time. He absented himself willfully on 1.6.1981 without applying for leave for the day. For this action, he was warned by the Director against recurrence of such conduct. The period of his willful absence for one day was treated as leave without pay. On two earlier occasions, the petitioner's conduct was found prejudicial to good order and discipline, on the first occasion he was verbally counselled by the Chief Drill Instructor and on the second occasion a Memo mas issued to him. There was no gradation maintained in the Academy about the attendance, in terms of which the petitioner had the record of being second (or may be third) hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of decisions before us in support of their respective cases, on going through them we are of the view that there is not much divergence in them as to the true legal principles to be followed in matters of this nature but the real problem appears to be one of application of those principles in a given case in determining whether the particular action taken amounts to a punishment attracting Article 311(2) of the Constitution or a mere discharge simpliciter not requiring the holding of an enquiry as contemplated under Article 311(2). We shall now deal with two leading cases having a bearing or the question before us. In Parshotam Lal Dingra. v. Union of India this Court after an elaborate consideration of the relevant provisions of the Constitution and judicial decisions cited before them observed: "The net result is that it is only in these cases there the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to he taken in regard to them. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with the case of a probationer who is discharged from service without complying with Article 311(2) of the Constitution. In that case two Judicial Officers of the Punjab Judicial Service were involved. For purposes of the present appeal it is sufficient if we refer to the case pertaining to Ishwar Chand Agarwal who was at the material time serving as probationer in the Punjab Civil Service (Judicial Branch). By an order dated December 15, 1969 his services were terminated, The said order did not contain any statement which would attach any stigma to the career of the officer concerned, It read as follows: "On the recommendation of the High Court of Punjab and Haryana, the Governor of Punjab is pleased o dispense with the services of Shri Ishwar Chand Agarwal, P.C.S. (Judicial Branch), with immediate effect, under Rule 7(3) in Part 'D' of the Punjab Civil Services (Judicial Branch) Rules, 1951, as amended from time to time"," Rule 7(3) of the Punjab Civil service (Judicial Branch) Rules, 1951 relied on in the above order provided that on the completion of the period of probation of any member of the service, the Governor might on the recommendation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned in respect of certain allegations of misconduct and had on that basis made a report to the High Court and that the High Court had after accepting the said report, made a recommendation' to the Governor to the effect that the officer was not a suitable person to be retained in service. The order of termination was because of the recommendations in the report. The the learned Chief Justice observed. "The order of termination of the services of Ishwar Chand Agarwal is clearly by way of punishment in the facts and circumstance of the case. The High Court not only denied Ishwar Chand Agarwal the protection under Article 311 but also denied itself the dignified control over the subordinate judiciary. The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision 311. In such a case the simplicity of the form of the order will not give any sancity. That is exactly what has happened in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ran Chandra Trivedi (supra) the principle applied is the one enunciated by Parshotam Lal Dhinga's case (supra) which we have referred to earlier. lt is urged relying upon the observation in Shri Sukh Raj Bahal's case (supra) that it is only when there is a full scale Departmental enquiry envisaged by Article 311(2) of the Constitution i.e. an enquiry officer is appointed, a charge sheet submitted, explanation called for and considered, any termination made thereafter will, attract the operation of Article 311(2). It is significant that in the very same decision it is stated that the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. As observed by Ray, C.J. in Shamsher Singh's case (supra) the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article. 311(2). It is, therefore, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him and the answers give by others had weighed with the Director before making the recommendation to the Government of India on the basis of which action was taken. The only ground which ultimately prevailed upon the Director was that the appellant had not shown any sign of repentance without informing him that his case would be dealt with leniently if he showed an sign of repentance. In fact in the very first reply he gave to the Director on being asked about the incident which took place on June 22 1981, the appellant stated I sincerely regret the lapse,' Neither in the letter which the Director first wrote to the Central Government nor in the counter affidavit filed in this Court, due importance has been given to the said expression of regret and it is further seen that no additional lapse on the part of the appellant between June 22, 1981 and the date on which the Director wrote the letter to the Central Government, which would show that the appellant had not shown any sign of repentance is pointed out, although there is a reference to his reporting to duty late on an earlier date on June 1, 1981. On going through the above record before the Court and taking into account ..... X X X X Extracts X X X X X X X X Extracts X X X X
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