N.N. Goswamy, J.
(1) The challenge in this petition is to the order of termination of service dated 11.9.1975 passel by S.P., Delhi under proviso to rule 5 of the C.C.S. (Temporary service) Rules 1965 and to the appellate order dated 29.11.1975 annexures 'C' and 'D' to the petition. The orders have been challenged on the grounds of discrimination, being vocative of Articles 14, 16, 311(1) and 311(2) of the Constitution of India.
(2) The petitioner was appointed to the post of S.I. in Delhi Police by open competitive examination by order dated 5.6.1975 along with several other persons. He was selected in 15% reserved quota for schedule castes community. Soon after his appointment, the petitioner was sent up for training to the Police Training School, Mehrauli. He had hardly completed three months and 18 days in training while impugned order terminating service was served on him while his juniors who were appointed along with him, were retained service. According to petitioner though the order is innocuous in form it is in fact punitive and by way of punishment when seen in the context of the circumstances preceing, attendant and posterior to it and had been made with a view to penalise the petitioner for what was considered by the authorities to be suppression of facts regarding conviction of the petitioner u/s 112/117 of the Bombay Act by not mentioning the same in attestation form. As such it was felt by the authorities that he would not make himself a good police officer and a memo to that effect was issued by the Asstt. I.G. of Police, Delhi. The said memo is :
'HE is not likely to make a good police Officer and should be chucked off without delay: Being a temporary employee his services may be terminated, as being no longer required, of course, no reason may be assigned, Competent authority viz. S.P. may pass the necessary orers.'
(3) The petitioner has admitted his convict
(4) In the circumstances, it was contended by the learned counsel for the petitioner that order though innocuous in form is in fact by way of punishment and is vocative of Article 311(2) of the Constitution in as much as no adequate oportunity was granted to the petitioner to explain the situation. Reliance was placed on various authorities of the Supreme Court as also of this Court by the learned counsel for the petitioner. The learned counsel for the respondent relied upon State U.P. V. Ram Chander : (1977)ILLJ200SC for the proposition that the test for attracting Art 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for order of reversion or termination of service or whether it is the very foundation of the order of termination of service to the temporary employee. The form of the order however, is not conclusive of its true nature. The entirety of the circumstances preceding or attendant on the impugned order must be examined by the Court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. It is not necessary to deal with this judgment in detail in view of the latest pronouncement of their lordships of the Supreme Court in the case of Anoop Jaiswal v. Govt. of India, : (1984)ILLJ337SC . The entire case law, on the subject, was reviewed in this case and it would be useful to reproduce para 11 and 12 which are ; 'On behalf the Union of India reliance has been placed on State of Punjab V. Shri Sukh Raj Bahadur, Union of India V. R.S. Dhaba; State of Bihar V. Shiva Bhikshuk Misra; R.S. Sial V. State of U.P.; State of U.P. v. Ram Chandra Trivedi and I.N. Saksena v. State of M.P. We have gone through these decisions. Except the case of Ram Chandra Trivedi all other cases referred to above were decided prior to the decision in Shamsher Singh case which is a judgment delivered by a Bench of seven Judges. As pointed out by us in all these cases including the case of Ram Chandra Trivedi the principle applied is the one enunciated by Parshotam Lal Dhingra case which we have referred to earlier. It is urged relying upon the observation in Shri Sukh Raj Bahadur case 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, Explanationn 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 case 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).
(5) It is, thereforee, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.'
(6) In view of the aforesaid judgment, the learned counsel for the respondent contended that the appointment itself was provisional .and subject to satisfactory verification of character and antecedents which is clear from appointment letter itself. It is true but that does not mean that the verification could be done at the back of the petitioner and could be relied upon against him without even a notice Having been issued to him to explain the same. This amounts to violation of the principles of natural justice. The learned counsel for the respondents further contended that the petitioner having admitted the fact that he was convicted u/s 112/117 of the Bombay Police Act and after having further admitted that he had not disclosed the said fact in his attestation form could not say anything more even if a notice had been served on him. This contention has no merit, for the simple reason, that the petitioner in his petition has explained the circumstances under which he had not disclosed his conviction. It has not been disputed by the learned counsel for the respondents that the conviction did not involve moral turpitude or disqualification from Government service and the contention is confined to only concealment of fact in the attestation form. The reason for concealment has also been given by the petitioner in his petition as I have already stated above. Not only this the petitioner has imp leaded the said Shri I.J. Verma, D.I.G. of Police as respondent No. 5 in this petition. The notice was duly served on the said respondent. Admittedly Shri I.J. Verma is still in police service and is posted at Delhi and in spite of that no counter-affidavit denying the allegations of the petitioner has been filed by him. The allegations of the petitioner regarding the disclosure of the fact to Shri I.J. Verma and his opinion have not even been disputed by the Deputy Comm. who has filed the counter-affidavit in this petition. In the circumstances, the petitioner has to be believed that he had made disclosure to Shri I.J. Verma who was the Chairman of the Selection Committee and he was advised by the said Shri Verma that it was not necessary to mention that fact in the attestation form.
(7) The petitioner has further given the particulars of certain other officers namely Sarvshri Ranjit Singh S.I., Jaan Mohd. S.I. and Balwant Singh S.I. who had been convicted for criminal offences and were released u/s 4 of the Probation of Offenders Act on furnishing of security bond and were still in police service and their services had not been terminated. These allegations of the petitioner have not been specifically denied and the reply is only in four words 'para 12(b) is denied.' Though specific names and offences had been mentioned by the petitioner, the counter-affidavit is silent and as such it has to be believed that those officers, mentioned by the petitioner, continued to be in service of the Delhi Police. In the circumstances, the petition has to be allowed and the impugned orders have to be quashed on this short ground.
(8) The next contention of the learned counsel, for the petitioner, was that his services were terminated by an authority subordinate to the one by which he was appointed. The appointment letter is annexure 'A' to the petition which indicates that the petitioner was appointed by A.I.G. of Police, Delhi. The order of termination is by the S.P. (Crimes). A.I.G. according to the petitioner, acts only on behalf of the I.G. of Police or the Deputy I.G. of Police, according to the Punjab Police Rules as applicable to Delhi. The case of the respondent in the counter-affidavit is that the A.I.G. of Police also acts as S.P. and as such the order of the S.P. of Police was valid. However, it is not necessary to go into this point since the petition is being allowed on the first point.