Jagannadha Rao, J.
1. This writ appeal is preferred against the judgment in Writ Petition No. 7293 of 1982 in which the learned Judge allowed the writ petition. The respondent in the writ petition has therefore come up in appeal.
2. The writ petitioner, respondent before us, was selected and appointed as a Medical Officer by the appellant on 18th September, 1980. According to the terms of the order of appointment the respondent was to be on probation for a period of one year and during that period his services were terminable by one month's notice on either side. If he was confirmed he would be required to enter into an agreement to serve the appellant company for a period of five years from the date of such confirmation and the company reserved its right to terminate the contract by giving a notice of three months or three months pay in lieu of notice without assigning any reasons. On 30th October, 1981, the Personal Officer of the appellant company addressed a letter of the Superintendent, Area Hospital, Bellampalli where the respondent was actually working. In that letter the Personal Officer proposed the confirmation of the respondent and also required the respondent to make the necessary arrangements for entering into the agreement contemplated by the order of appointment. The respondent had stated in his affidavit filed in this Court that he had purchased the necessary stamp papers and submitted the same to the authorities on 15th November, 1981, and that nothing more was required to be done on the spot.
The respondent then received the impugned order dated 4th October, 1982, terminating his service. The order reads as follows :
'It is regretted that your services are no longer required by the Company. Your services stand terminated on and from 8th October, 1982.
2. You will be relieved of your post on 8th October, 1982 by paying you three months salary in lieu of notice, as required under para 4 of your appointment order No. C/1998, dated 18th September, 1980.
3. Controller of Accounts (F & A), B.P.A. is being advised to settle your accounts with the Company.
For Chairman and
The respondent filed the writ petition on 11th October, 1982, for the issue of a writ of certiorari quashing the order of termination, dated 4th October, 1982.
4. In the writ petition the respondent contended that his services were terminated by way of punishment without giving him a reasonable opportunity and that therefore the impugned order was violative of principals of natural justice and also of rule 11 of the Conduct and Disciplinary Rules of the Company which provided for an opportunity to be given to the employee.
5. The appellant filed a counter-affidavit and supported the order of termination, dated 4th October, 1982. It stated that the respondent had not become a permanent employee of the appellant Company in as much as the agreement stipulated in the order of appointment was not executed between the parties. It was also stated that the conduct of the respondent during his service was not satisfactory, that he became a drug addict and had been indulging in activities which were common in drug addicts, that he used to take pethidrine injections and other sedatives, that on 29th June, 1982 he attempted to commit suicide and was therefore admitted into Bellampalli Hospital at 10-45 p.m. as an in-patient, that a case was also registered in the hospital as MLC 374 and that he was treated as an inpatient. It was further averred -
'In view of the above behaviour it was found that continuance of the petitioner in service is absolutely not desirable and was felt to prove dangerous to the patients attending the hospital and thus unfit to continue as Doctor and therefore his services were terminated on 4th October, 1982. It was by way of abundant caution, three months salary was paid in lieu of notice even though that was not required.'
The appellant also took out a plea that the appellant was a Company and was not amenable to the writ jurisdiction of this Court but the said plea was not pressed before out learned brother.
6. The writ petition was allowed on two grounds. The first was that the order of termination was in the nature of a punishment inasmuch as the allegations mentioned in the counter-affidavit were the foundation and not the motive for termination of the services of the respondent. For that purpose the learned Judge placed reliance on the averments made in the counter-affidavit, which according to him, clearly show that the order was in the nature of punishment for which a disciplinary enquiry should have been made in accordance with the rules by following principles of natural justice. The second ground on which the writ petition was allowed was that the three months salary stipulated in the terms of appointment should have been paid to the respondent simultaneously with the service of the order of termination on 4th October, 1982 but that such a course was not adopted by the appellant who had only stated that three months salary would be paid in lieu of notice. According to the learned judge the non-payment of the three months salary along with the order of termination was an illegality resulting in the termination order becoming ineffective in the eye of law.
7. In this appeal the learned Counsel for the appellant Company Sri N. Ramamohana Rao has canvassed the correctness of the conclusion of the learned Judge on both the grounds. It is firstly contended that the order dated 4th October, 1982 was an order of termination simpliciter which did not cast any stigma on the respondent and that it was not permissible for the Court to go into the circumstances under which the order was issued. It was further contended that the facts mentioned in the counter-affidavit might be the motive for termination but it was not the foundation for it. At any rate it was not permissible to relay on the allegations made in the counter-affidavit, according to the appellant. On the second ground it was contended that paragraph 4 of the order of appointment permitted termination by issuing the three months notice or by paying three months salary in lieu of notice and that the language of the clause gave the option to the employer to follow either of these courses and that on a proper construction of the clause the three months salary was not payable simultaneously with the service of the order of termination.
8. In this appeal therefore the first question that arises for consideration would be : whether the order of termination amounted to a punishment thereby resulting in breach of principles of natural justice or of rule 11 of the Rules relating to conduct of disciplinary proceedings.
9. Our learned brothers has, on a consideration of the facts and attendant circumstances of the case, come to the conclusion that the order of termination is in the nature of punishment and that the respondent ought to have been given a reasonable opportunity in respect of the allegations which were set out in the counter-affidavit and which were the foundation for the impugned orders. After examining the entire circumstances and facts leading upto the order of termination, we are of the opinion that the learned Judge has come to the correct conclusion. Paragraph 8 of the counter-affidavit which has been filed in the case on behalf of the appellant sets out in detail that the appellant received reports that the respondent was a drug addict and sets out various allegations relating to his drug addition. It then states that in view of the said behaviour it was found that the continuance of the respondent in service was absolutely undesirable and that therefore his services were terminated on 4th October, 1982.
10. It is now well-settled that there is no rigid formula that one has only to look to the order of termination. The form of the order is not conclusive of its true nature. The order might merely be a cloak or commonflag for an order founded on misconduct. It may be that an order is innocuous on its face or does not contain any impugnation of misconduct. But the entirety of the circumstances proceeding or attended on the impugned order must be examined and the over-riding test will be whether the misconduct is a mere motive or is the very foundation of the order. (See State of Bihar v. Shiva Bhikshuk Mishra [1970-II L.L.J. 440].
11. It is however contended for the appellant that their Lordships of the Supreme Court have held different in State of U.P. v. Ram Chandra Trivedi [1977-I L.L.J. 200]. In the last mentioned case the officer was a temporary clerk and it was alleged that when a typewriting test was conducted, the officer allowed another person to impersonate for him. The explanations of both the officers were called for and were not satisfactory. Thereafter orders of termination were issued to both the officers. The respondent before their Lordships was one of them and he filed a writ suit challenging the order of termination. The trial Court and the first appellate Court found that the order was not by way of punishment but the High Court interfered with the concurrent findings of fact and decreed the suit. While holding that the High Court ought not to have interfered, in second appeal, with the concurrent finding of fact, their Lordships referred to the case in State of Bihar v. Shiv Bhikshuk Misra (supra) in para. 15 and the principles laid down therein were stated. Further in paragraph 9 it was observed by His Lordship Jaswant Singh, J. [1977-I L.L.J. 200] at 205 :
'But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post, does not mean that an order of reduction of a Government Servant to a lower Post or rant cannot in any circumstances be a punishment.'
At Page 2554-2555 the learned Judge referred to the judgment of the seven Judges of the Supreme Court in Shamsher Singh v. State of Punjab [1974-II L.L.J. 465] and considered the statement of law made by Ray, C.J., in that case included the following passenger :
'An order terminating the service of a temporary servant or probationer under the rules of employment and without anything more will not attract Art. 311. Where a department enquiry is contemplated and if an enquiry is not in fact proceeded with Art. 311 will not be attracted unless it can bee shown that the order though unexceptionable inform is made following a report based on misconduct.'
We may point out that at the end of the above passage Ray, C.J., has in fact categorically referred to the judgment in State of Bihar v. Shiva Bhikshuk Mishra (supra). Further in the immediately preceding paragraph 66 at page 480 in Shamsher Singh's case (supra), Ray, C.J., made another observations as follows :-
'If the fact and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationers is entitled to attract Art. 311. The substance of the order and not the form would be decisive. (See K. H. Phadnis v. State of Maharashtra (A.I.R. 1917 S.C. 998).'
and again at para. 80 at page 483, Ray, C.J., observed as follows in Shamsher Singh's case :
'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 facts 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 provisions of Art. 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside.'
and again in para 86 at page 484 :
'In the facts and circumstances of this case it is clear that the order of termination of the appellant Samsher Singh was one of punishment.'
12. The above extract by Jaswant Singh, J., to the passage in Shamsher Singh's case (supra), and the other passage which we have now referred to would clearly show that the judgment of seven Judges in Shamsher Singh's case (supra) clearly held that the form of the order was not decisive.
13. The decisions in State of Bihar v. Shiv Bhikshuk Mishra (supra) and in State of U.P. v. Ram Chandra Trivedi (supra) were both considered in State of U.P. v. Bhoop Singh : 2SCR1026 . In the last mentioned case, the facts were that after the allegations into misconduct of the respondent therein with Smt. Phoolmati were made, he was allowed increments, but later his services were terminated. The Bench consisted of their Lordships Jaswant Singh, R. S. Pathak and A. P. Sen, JJ. Speaking for the Court, Pathak, J., observed :
'The case law on the point has been considered elaborately by one of us (Jaswant Singh, J.) in State of U.P. v. Ram Chandra Trivedi (supra). In this connection what has been stated by this Court in State of Bihar v. Shiva Bhikshuk Mishra (supra), appears relevant. That it was not intended to take punitive action against the respondent for his misbehaviour with Smt. Phoolmati is evident from the circumstances that thereafter the respondent was allowed an increment to his salary and was regarded as in service for all purposes. The High Court, it seems to us, did not have regard to all the circumstances of the case.'
The case in State of Uttar Pradesh v. Ram Chandra Trivedi (supra), was again referred to by their Lordships in the recent case in State of Maharashtra v. Saboji AIR 1980 SC 42, and Pathak, J. stated in paras 18, 19 :
'There may still be another kind of case where although the termination of services is intended by way of punishment, the order is framed as a termination simpliciter. In a given case, the Government servant may succeed in making out a prima facie case that the order was by way of punishment. It is in such a case generally that the official records may be called for by the Court. ....
What I say here in no way detracts from what this Court has laid down in State of Uttar Pradesh v. Ram Chandra Trivedi .... I am unable to spell out from the judgment any absolute rule enunciated by this Court that where terminating the services of a temporary or a probationed Government servant is ex facie an order of termination simpliciter, the Government servant is barred from establishing that it is in fact an order by way of punishment ......'
Therefore, we are unable to hold that there has been any absolute rule enunciated in the case in State of Uttar Pradesh v. Ram Chandra (supra), which has to be construed as laying down anything contrary to what was laid down in State of Bihar v. Shiva Bhikshuk Mishra (supra). There being no absolute rule, one way or the other, the matter ultimately turns upon the facts and circumstances attendant and proceedings the action in each case.
14. In fact after the judgment in State of Uttar Pradesh v. Ram Chandra Trivedi (supra), of Jaswant Singh, J., the Supreme Court in The Manager, Government Branch Press v. Belliappa [1979-I L.L.J. 156], and in Nepal Singh v. State of Uttar Pradesh : (1980)IILLJ161SC , reiterated the principle enuciated in State of Bihar v. Shiva Bhikshuk Mishra (supra), that the form of the order is not decisive.
15. For all the above reasons we are unable to agree with the contention of the learned Counsel for the appellant that the decision in State of Bihar v. Shiva Bhikshuk Mishra (supra), must be deemed to have been disapproved in State of Uttar Pradesh v. Ram Chandra Trivedi (supra).
16. As already observed, the counter-affidavit in this case makes it more than clear that the satisfaction of the authority as to the conduct of the officer was the cause for the impugned order. Considering the attendant circumstances, it is clear that the impugned order was in the nature of punishment and that without observing principles of natural justice, it should not have been passed.
17. It is then contended for the appellant that the conduct of the respondent was the motive for the impugned order and cannot be treated as the foundation.
18. The question whether misconduct of an officer is the motive for an order of termination or the foundation has been considered by the Supreme Court.
19. In Shamsher Singh's case (supra), Ray, C.J., pointed out (at page 479 para 62), that if the misconduct is the motive, it would merely adhere in the mind of the employer but will not be discernible. On the other hand, if the termination is founded on misconduct it is objective and is manifest. The above observations were further explained by a Division Bench of our High Court in Vice-Chancellor, Andhra University v. Venkata Ratnam (1976) 2 An. W.R. 231, consisting of Sambasiva Rao, J. (as he then was) and Jayachandra Reddi, J. It was observed that motive is something subjective and is not discernible. But where it is the basis or foundation, it is objective and discernible and therefore, manifest. Motive, it was stated, would become the foundation when it leaves the mental attitude of its author and gets an objective existence. The motive is a motive so long as it remains dormant in the mental abode of its author but assumes the form of a foundation when it is spelt out in an objective shape or physical form either as part of an order or a note in a Government file.
20. The distinction between a motive and a foundation came up for consideration before the Supreme Court again in Gujarat Tubes Limited v. Its Mazdoor Sabha [1980-I L.L.J. 137]. At page 54 & 55 of the report, Krishna Iyer, J., held that when the master is 'satisfied' of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal, even if the order is innocuous. On the contrary, when the employer only suspects the misconduct but does not make an effort to go into his guilt but only feels like not keeping a man with whom he is not happy, and with respect to whom he does not like to make an inquiry, there is only a motive - a subjective feeling in the mind. All that he thinks is that he should not continue a dubious servant. In that case it is not a dismissal but termination simpliciter.
21. Applying the above principles to the facts of this case, it is seen that, in the present case, the employer's conclusion was not a mere subjective attitude of mind. The termination order was issued after being satisfied about the respondent's misconduct. The appellant clearly stated that it was 'satisfied' that the respondent 'become' a drug addict and that the various even showed that the respondent 'was addicted' to pethidrine. It was also noted by the employer that the respondent was heavily indebted and that his 'act of serious misconduct' was not conductive to his working as a medical officer. On top of this, it was stated in the counter-affidavit, that assuming that the disciplinary and conduct rules applied, the respondent had an effective and alternative remedy by way of appeal.
22. On these facts stated in the counter-affidavit which are based on the record of the case, we have no doubt in our minds, that the impugned order was not passed by keeping the respondent's conduct in mind as a mere motive. We are of the opinion that the authorities passed the impugned order not by mere subjective opinion in their mind but by an objective assessment of the facts and after being satisfied that the respondent was guilty of misconduct. The satisfaction is vitiated on account of its having been arrived at without giving an opportunity to the respondent by following the discipline and conduct regulations.
23. But it is contended for the appellant that the learned Judge was not, for that purpose, justified in relying upon the counter-affidavit filed by the appellant.
24. We are of the opinion that this contention of the appellant cannot be accepted. In Debesh Chandra v. Union of India : 1SCR220 , their Lordships of the Supreme Court observed :
'If any doubt remained, it is cleared by the affidavit which is now filed.'
Similarly, in N. Yellaiah Swamy v. Director of Industries and Commerce (1971) 2 An. W.R. 183, a Division Bench of this Court consisting of Gopal Rao Ekbote, J. (as he then was) and Ramachandra Raju, J., pointed out :
'The subject indicated in this impugned order and the counter filed by the respondent themselves point to the same conclusion.'
We, therefor, do no consider that our learned brother should have ignored the statement made on behalf of the appellant on oath. The appellant cannot deny that the counter-affidavit is not based on the record. Nor is it its case that the same was based on mistake. If the record could, in a given case, be relied upon, there can be no absolute rule that the counter-affidavit should as a rule be ignored.
25. The judgment of the Bombay High Court in Vitalrao Ramachandra Ghorpade v. State of Maharashtra (1973) 1 Serv. L.R. 255, relied upon by the appellant of the proposition that the counter-affidavit cannot be relied upon has, in our opinion, no relevance. That case related to a case of compulsory retirement where, it was incumbent upon the competent authority, to show that there was material or record to which the authority applied its mind for deciding whether the officer could be compulsorily retired. In fact, if in such cases, there was no material for passing an order of compulsory retirement, the order would be vulnerable on that ground alone. Further judgment in para 8 does not contain any such proposition as it stated in the head-note. We do not consider this case as an authority for the proposition contended for.
26. We, therefore, agree with the reasoning of the learned Judge that the order in the present case was in substance one in the nature of punishment and that the learned Judge was right in allowing the writ petition.
27. This above point was sufficient to allow the writ petition. But the learned Judge has held that the petition was liable to be allowed on another ground also. He opined that the salary of three months payable to the respondent in lieu of notice should have been paid simultaneously with the service of the order. We are of the view that for the purpose of this case it is not necessary for us to go into this question.
28. The appellant relies on the judgment of the Supreme Court in State of Uttar Pradesh v. Dinanath Rai (1969) 2 S.C.W.R. 92, to say that the salary need not be paid simultaneously with the service of the order. The respondent relies on Senior Superintendent v. K. V. Gopinath : (1972)ILLJ486SC , where the above ruling was distinguished. It is further submitted for the respondent that Gopinath's case, was followed in Rajkumar v. Union of India : AIR1975SC536 . The learned single Judge followed the last two case and also the judgment of Punnayya, J., in J. N. Sarkary v. Zonal Manager (1978) 1 Serv. L.R. 471 (A.P.).
29. We are of the view that it is not necessary in this case to consider these ruling or to go into the question whether the payment of salary is to be simultaneous with the service of the order of termination. As we are against the appellant on the first point, we refrain from expressing our opinion on this question.
30. In the result the appeal fails and is dismissed both in the circumstances of the case without costs.