G.M. Lodha, J.
1. Lifting the veil v/s Finality of Form, Mere Motive v/s very foundation-'Causa Casans', are the twin pivots of the instant juristic debate.
2. Are we competent to unmask or we have to surrender to 'veto' of words? Unearthing, unveiling and unmarking the 'causa casans' of foundation of action based on misconduct, by scrapping the label of innocus window dressing of verbal haberdashery ingenuity of putting a veil of reversion simpliciter, to protect civil servant by constitutional umbrella of Article 311(an umbrella much more valuable & important than neuclear one), whether is permissible for us, who are proverbially to act, as 'watchdog' of Constitution?.
3. This Is the unending judicial controversy from Shyamlal's case of fifties, assuming three dimensions in Magna Carta Dhengra's case to Gujrat Steel Tubes judgment of late seventies, in which majority of the to one refused to be 'put off the track of truth' and which has reached new horizons in early Kighty's when two judges (Justice, Untwalia and Justice Pathak) have noted divergent two different deduction & conclusions while interpreting Ramchander Trivedi and Shamshersingh's judgment of seventies.
4. Four decades of legal debates of topbrass of eminent jurists and judges, have not been enough to cut 'clear sharp precise edges, of Motive v. Casusa Casans to decide where the later starts and the former ends in an ultra advanced age of science and technology computers and-Apolo's landing in Moon and Mars Is it not enough to put us to serious thinking, research and search for, now dynamism in law and justice to provide 'cut and dry' solutions, making law certain and reducing plethora of precedents and catena of case law. True, law cannot be computerised nor can it be solved like geometrical or mathematical problems, but some rethinking is necessary for making it certain settled, concise and precise at least.
5. 'Divergent irreconcible & conflicting' is the vehement submission at the Bar, but no conflict' is the dictum in the authoritative pronouncement of Remchander, though a long dissenting note of one eminent Judge did term it as 'unsatisfactory state of law' in Shamsher Singh's case.
6. Such is the delicate and precarious condition of law which concerns lakhs of civil servants and workmen. Such is the severe predicament in which, we have been called upon to make a second judicial review of judgment of learned Single Judge of this Court; who after scrapping the label, has not only unmasked and unearthed the 'causa casans' or foundation of misconduct by lifting the fell of 'reversion simpliciter and innocus as per window dressing of wording of order ex facie' but in his crusader's enthusiasm and zeal to do justice civil servant, rocked the foundation by microscopic examination of each adverse entry in the confidential rolls, and then depreciating and condemning the matter's action partaking the character of appellate forum, normally denied under Article 226.
7. New let us put the case in nutshell.
8. Shri Chatterjee, the petitioner, was appointed as an Apprentice Signal and Block Inspector on 17.6.1954. After completion of his training he was posed as Assistant Singal Inspector (Construction) Delhi division on 7.3.1957. He was than promoted to the post of signal Inspector grade Rs. 200-300 (250-380 AS) after passing a test for selection. Thereafter the post of Single Inspector in the grade of 250-350 (Rs. 335-425 AS) on 26-8-1962.
9. Thereafter, while he was working as Signal Inspector in the grade on officiating basis, according the case of the petitioner, Shri V. Krishan, D.S.T.E.M. under whom he was working, made certain adverse entries in his confidential rolls. The petitioner was then reverted and against this order of reversion dated 8-6-1965, the petitioner filed appeal to the General Manager and after its rejection the writ petition was filed.
10. The learned Single Judge accepted the writ petition on the ground that the reversion was ordered against the provision of Article 311 of the Constitution, in as much it was in the form of punishment and visited the civil servant with the evil consequences.
11. Before the learned Single Judge the Confidential Reports of the petitioner and the nothings of the office were placed by the Railway on record. The learned Single Judge therefore, elaborately discussed these confidential reports, the procedure required for the confidential reports and the relevant rule. After an elaborate discussion of the relevant rules and the confidential reports and the office nothing, the learned Single Judge came to the conclusion that the confidential reports were lacking in specific instances and there were contradictions in the various entries. He found the confidential reports to have been written in a very unsatisfactory manner. Thereafter he has discussed the notings of the office leading to the order of reversion and then held that the authorities concerned wanted to take action against the petitioner on the basis of the confidential reports about which the rules as contemplated by Rule 1619 of Indian Railway Establishment Code have not been framed. The remarks occurring in the confidential reports were of general nature locking specific instances whatsoever. It was held that on the basis of them no reasonable man could bonafide form opinion that the petitioner was not a suitable person to be retained on the post on which he was appointed in officiating capacity. It was also held that the entries brought on the record are of such a character as undoubtedly result stigma on the incumbent and marches future chances of promotion as well. It was future held that the juniors to the petitioner were retained and the petitioner inspite of being senior reverted. This resulted in evil and penal sequences and was thus in the nature of a punishment.
12. The court was of the opinion that since the rules regarding holding of disciplinary enquires have not been followed, the reversion has been made in violation of Article 311 of the Constitution, which deserves to be quashed.
13. In this special appeal, Mr. Bhandari, appearing for the Railway has argued that the learned Judge was not justified in scrutinising the confidential reports by substituting his judgment for the judgment of the officers concerned, who has occasion to write the confidential reports on the basis of their observations. It was also argued that the this matter is not justiciable as the High Court cannot go into and challenge the correctness of the confidential reports. It was pointed out, that the discrepancies pointed by the learned Single Judge regarding the entry on the top of these confidential reports and column no. 8, is factually wrong. That the specific instances leading to the remarks in the confidential reports, are not required to be given under any rules or circulars.
14. Then was argued that the Court was not justified. In going behind the order of reversion and finding out the motive for passing its order Mr. Bhadanri submitted that reversion order 'ex facie' shows that this was a case of reversion simpliciter and, therefore neither Article 311 was violated, nor there was any requirement of making an inquiry under the rule of disciplinary proceeding.
15. Mr. Mridul, appearing for the respondent has controverted the above submissions and submitted that the judgments of the learned Single Judge is perfectly justified both on facts and on facts and on law and requires no interference in the special appeal.
16. The crucial question to be considered in this case is in a very narrow compass. The judgment of the learned Single Judge is very elaborate and comprehensive on various matters, including the various rules and who the mandatory & directory nature of the rules & what rules should have been framed and the effect of the omission to frame the rules. We would first discuss the principal point of controversy and then later on revert to the other points, if necessary.
17. It is not in dispute that the order of reversion in this case was passed on the basis of notings, which have been produced by the Railway in the form of Annexure F and which are at page 74 to 81. These documents though marked confidential, have been produced voluntarily by the Railway before the Single Judge in support of the reply.
18. In substance, these notings show that the confidential reports of the respondent Shri Chatterjee for the period from 1-7-1963 to 23-12-63 and the period ending 30-6-1963 are very bad as not only he was assessed 'below average', but his integrity was held to be 'very much doubtful'. Many other bad remarks were given, which have been mentioned in details in the judgment of the learned Single Judge and which we need not repeat.
19. Para 6 of the notings of Annexure F shows, that making the above reports as the very foundation, the officer opined that this warrants the petitioner's reduction to the lower grade of Signal Inspector. The other notings of the subsequent pages shows that the question of the reversion on the ground of the notings nos. 1 to 5 was then considered at various levels and ultimately the same was done.
20. The order of 8-6-1965 was then Issued by the Senior Personnel Officer II and then it was followed by the impugned order Ex. 3 at page 24.
21. The entire controversy, therefore, now depends upon the question whether this Court can go into all these notings in order to ascertain whether the reversion was based on the very foundation of notings, containing entries in the confidential reports or they provided motive only. Thus, it would be a controversy of 'very foundation' versus Mere Motive.
22. Mr. Bhandari's principal submission is that the court should accept the order of reversion ex facie as it is and should not and cannot probe into the circumstances due to which this order was passed. According to him every order of reversion is bound to be passed on some reasons like unsuitability or inefficiency. The Court is precluded from making probe into it. Consequently, it is submitted that even if it is permissible, then also in the instant case, it is evident that adverse entries in the confidential reports and the notings referred to above only provided a motive for reverting the petitioner and if it is held to be so then the reversion suffers from no infirmity on that ground.
23. Both the learned Counsel have argued with equal ability that the law is well settled and interestingly enough they have submitted two extreme, different & divergent proposition of law, an indication of which we have give in the first three paragraphs of preface to this judgment.
24. Decks are new clear to come to the brass test of the juristic debate of right of the court to lift the veil on the one hand; and then unearthing Motive versus foundation of misconduct, being the bedrock of the impugned order of reversion on the other hand.
25. It would, therefore, be necessary to examine the entire case law of last four decades which would govern the instant case to first unveil, unmask the principles laid down of the controversy about lifting the veil and motive v. foundation of misconduct.
26. ln State of U.P. v. Ram Chandra Trivedi 1976(2) SLR 859, the Hon'ble Supreme Court considered this question at length. After discussion of the Purshotam Lal Dhingra v. Union of India 1958 SCR 828, which is regarded as the Magna Cart of the Indian Civil Servant in para 9, the Court took notice of various judgments Gopi Kishore Prasad v. Union of India : (1960)ILLJ577SC . The State of Orissa and Anr. v. Ram Narayan Dass 1961 (1) SCR 135. Madan Gopal v. State of Punjab : (1964)ILLJ68SC Rajendra Chandra Banerjee v. Union of India : 2SCR135 , Champak Lal Chiman Lal Shah v. Union of India : (1964)ILLJ752SC , and Jagdish Mitter v. Union of India : (1964)ILLJ418SC , The principles laid down by the Hon'ble Supreme Court in State of Punjab and Anr. v. Shri Shuk Raj Bahadur 1968 SCR 234 were extracted In this judgment in para no. 15 and since in our opinion, they are very relevant In present controversy, the same are being reproduced here:
15. in State of Punjab and Anr. v. Shri Shukh Raj Bahadur : (1974)ILLJ260SC where the Punjab Government reverted the respondent to his officiating appointment to the Punjab Civil Service (Executive Branch) to his substantive post in the Delhi Administration after Issuing him a charge sheet to which the respondent replied but the enquiry was not proceeded with, it was held by this Court that the respondent could not complain against the order reverting him to his former post because the order of reversion was not by way of punishment, in that case, Mitter J. who spoke for the Bench laid down the following propositions:
1. The service of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.
2. 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.
8. If the order visits the Public Servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.
5. If there be a full-scale departmental enquiry envisaged by Article 311, i.e. Enquiry, Officer Is appointed, a charge sheet submitted, explanation called for and considered, and order of termination of service made thereafter will attract the operation of the said Article.
27. It may be observed that the principles laid down in Parshotamlal Dhingra's case (supra), Champaklal Chimanlal Shah case (supra) and Shri Sukh Raj Bahadur's case (supra) were reiterated by the Hon'ble SupremeCourt in Union of India and Ors. v. R.S. Dhaba : 3SCR603 , State of Bihar and Ors. v. Shiv Bhikashuk Mishra 1971 (2) SCC 191 and R.S. Sial v. The State of U.P. and Ors. (V2). It was then observed that according to this reiteration of the principles it was laid down that the test for attracting Article 311 Clause (2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee.
28. It Would thus he seen that on a careful consideration and a comprehensive survey of almost all the relevant judgment of the Hon'ble Supreme Court on this point, including Ram Cnandra's case(Supra) the view taken was, that it the very foundation of the order of reversion or termination of service is the misconduct or negligence; then Article 311 Clause (2) of the Constitution is attracted. But if the misconduct or negligence is mere motive and not the foundation then Article 311 Clause (2) will have no application
29. We would a little later consider this question on the fact of the present case, but before leaving the discussion of the judgment of Ram Chandra's case, it must be mentioned here that still more important observations in this judgment is the following:
The form of the order however, is not conclusive of its true nature The entirety of circumstances preceding or attendant on the impugned order must be examined by the court & the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.
30. In State of Uttar Pradesh and Ors. v. Sughar Singh : (1974)ILLJ260SC , the order of reversion was held to have been passed by way of punishment and this was held to be so on a statement made before the High Court by the Standing Counsel for the State that the foundation of the order of reversion was the adverse entry made in his confidential character roll.
31. In Rule S Sial v. The State of U.P. and Ors. (supra), in para 12 the Supreme Court laid down the same principle that the form of order is not conclusive of its true nature.
32. In Gujarat Steel Co., Case, it has been observed:
The anatomy of a dismissal order is not a mystery, once we agree that substance, not semblance, governs the decision. Legal criteria are not so slippery that verbal manipulations may outwit the court Broadly stated, the face is the index to the mind & an order fair on its face may be taken at its face value. But there is more to it than that, because some times words are designed to conceal deeds by linguistic engineering. So it is beyond dispute that the form of the order of the language in which it is couched is not conclusive. The court will lift the veil to see the true nature of the order.
Many situations arise where courts have been puzzled because the manifest language of the termination order is equivocal or misleading and dismissal have been dressed up as simple termination. And so Judges have dived into distinctions between the motive and the foundation of the order and a variety of other variations to discover the true effect of an order of termination. Ruling are a maze on this question but, in sum, the conclusion is clear. If two factors coexist, an inference of punishment is reasonable though not Inevitable. What are they?
If the severance of service is effected, the first condition is fulfilled & if the foundation or causa causans of such severance is the servant's misconduct the second is fulfilled. If the basis or foundation for the order of termination is clearly not turpodinous or stigmatic or rooted in misconduct or visited with evil punishment effects then the inference of dismissal stands negated and vice versa. These cannot run right through the disciplinary branch of master and servant juris prudence, both under Article 311 and in other cases including workmen under managements. The law cannot be stultified by verbal haberdashery because the court will lift the mask and discover the true face
It Is true that decisions of this court and of the High Courts since Dhingr's case 1958 SCR 828 have been at times obscure.if cited de hors the full facts.
33. In Murugan Mills case, it was observed:
The right of the employer to terminate the services of his workmen under a standing order, like Clause 17(a) in the present case, which accounts to a claim 'to hire and fire' an employee as the employer pleases and thus completely negatives security of Service which has been secured to industrial employees through industrial adjudication, came up for consideration before the Labour Appellate Tribunal in Buch Kinghama Carnatic Co. Ltd. v. Workers of the Company. 1958 SCR 828. The matter then came up before this Court also in Chartered Bank v. Chartered Bank Employees Union : (1960)ILLJ577SC and the Management of U.B. Dutt and Co. v. Workmen of U.B. Dutt and Co 1961 (1) SCR 135 wherein the view taken by the Labour Appellate Tribunal was approved and it was held that even in a case like the 'the requirement of bonafides was essential and if the termination of service was a colourable exercise of the power or as a result of victimisation on unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination The form of the order in such a case is not conclusive and the tribunal can go behind the order to find the reasons which led to the order and then consider for Itself whether the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice. If it came to the conclusion that the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice it would have the jurisdiction to intervene and set aside such termination.
In Chartered Bank's case, it was observed:.. The form of the order of termination is not conclusive of the true nature of the order, for it is possible that the form may be merely a camouflage for an order of misconduct. It is, therefore, always open to the Tribunal to go behind the form and look at the substance and if it comes to the conclusion, for example, that though in form the order amounts to termination simplicities, it in reality cloaks a dismissal for misconduct, it will be open to it to set it aside as a colourable exercise of the power.
IN Shamsher Singh's case, it was observed:
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 Article 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.
34. In a recent judgment of State of Maharashtra v. Veerappa Rule Seboji and Anr. : (1979)IILLJ393SC , Hon'ble Justice Rule S. Pathak in paras No. 19 and 20, has expressed the same view. It has been held that the court can peruse the official records in appropriate case and if considerations of privilege & confidentiality do not suffer, the information set forth in the records should be made available to the Government servant and the information should not be with held merely because of the possibility that the official records could confirm what the Government servant had set out to prove and prima facile had, indeed, proved. Differing with the Hon'ble Justice Untwalia on the interpretation of State of U.P. v. Ram Chandra Trivedi (supra), he observed 'I am unable to spell out from the judgment any absolute rule enunciated by this Court that where the order terminating the services of a temporary or a probationer Government servant is ex facie an order of termination simpliciter, the Government servant is barred from establishing that in fact an order by way of punishment, and that on the Government servant succeeding in establishing it to be so the court is prohibited from examining the official records for the purpose of verifying the true position'.
35. It was observed that the form of the order is not conclusive to its true nature and in para 20 the observations of Ram, Chandra Trivedi's case were extracted.
36. Shamsher Singh v. State of Punjab 1975(1) SCR 814, was then referred and the following conclusion was drawn by the learned Judge from the observations in that judgment:
It seems clear that if a Government servant is able to establish that, although the impugned order is innocent ex facie, It was made on the ground that he was guilty by way of misconduct and, therefore, the order was Intended by way of punishment, the law still is that an order, although framed in terms which do not cast an aspersion against the character and integrity of the Government servant or visit him with evil consequences, may still be proved to be in fact one by way of punishment. It is true that In S.P. Vashudeva v. State of Haryana : 2SCR184 . this Court laid down that ordinarily the courts should not go behind an order of reversion of a person who bad no right to the post if ex facie it did not disclose that he was being reverted as measure of punishment and did not cast any stigma on him But the words advisedly used were:.. The courts will cot normally go behind that order to see, if there were any motivating factors behind that order.
No definite principle as a rule of law appears to have been laid down in that case on the point and the Court has merely suggested that the question whether it should be open to the courts in such cases to go behind the order should be examined de novo, and it recommended that an order reverting a probationer, from a higher to lower post, or discharging a probationer, or discharging a temporary servant from service should not be questioned except on the basis of mala fides in making the order. From the further comments of the Court it appears that the observation was made with a view to lightening of the court was regard to the heavy load work presently occupying it. Until the day that the recommendations accepted. I believe it to be true that the jurisdiction of the courts extends to examining scrutinising he official records in the circumstances to which I have specifically adverted:
These observations in interpreting the various judgment of the Hon'ble Supreme Court, were made by Hon'ble Mr. Justice Pathak as in his own words he found himself unable to subscribe to the observations of the other Hon'ble judge in this judgment. Mr. Bhandari has placed reliance upon the observations of the other Hon'ble Judge, Hon'ble Mr. Justice Untwalia with whom Hon'ble Mr. Justice Pathak differed, as mentioned above.
37. It would thus be seen that the question whether inspite of the nature of the order of termination or reversion being innocuous without any stigma and not based on any misconduct, or negligence can the Court probe into the circumstances and the material on which it was passed in order to ascertain whether the foundation of it was in fact misconduct or negligence but it was only given an image of innocuous order to avoid compliance of Article 311 is a question, which has been engaging the Judicial consideration ever since the first judgment in Shyamlal's case was given followed by Parshotam Das Dhingra's case, As mentioned above, the latest in the series of these cases is Judgment of the Hon'ble Supreme Court in V.R. Saboji and Anr. (supra), in an appeal against the judgment of the Bombay High Court. In it Hon'ble Justice Untwalia and Hon'ble Justice Pathak has summed up the ratio decidendi and the conclusions of the different judgments of the Hon'ble Supreme Court on this point into extreme diagramatically opposite ways, as pointed out by Mr. Bhandari.
38. It was in this back ground that where as Mr. Bhandari vehemently submitted that the law now is well settled that the High Court cannot go behind the order of reversion or termination and has to accept it on its face value even though the circumstances and the facts leading to it might point out that the motive for passing such an order was some negligence or misconduct, contrary to it, Mr. Mridul with equal vehemence & confidence submitted that now the law is well settled in the above judgment that whatever might be the form of the order, the court can go behind it and find out whether misconduct or negligence was the foundation for passing such an order and if it is found to be so, the order is bound to be struck down being violative of Article 311(2). Justice Untwalia first made a mention of S.P. Vasudev v. State of Haryana : 2SCR184 , where in it is was held:
After all, if such an order gives nO reasons the Court will not normally interfere because ex facie there is nothing to show that the order was intended as a punishment.
39. We then noticed that in State of U.P. v. Ram Chandra Trivedi (supra), Jaswant Singh Justice reviewed the entire case law including Purshotam Lal Dhingra's case Shamsher Sing's case and relevant extracts in extenso were quoted and then finally observed an as under at page 475:
Keeping in view the principles extracted above, the respondent's suit could not be decreed in his favour. He was a temporary hand and had no right to the post. It is also not denied that both under contract of Service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month's notice. The order to which exception is taken is ex facie an order of termination of service simpliciter. It does not cast any stigma on the respondent nor does, it visit his with evil consequences, nor is it founded on misconduct In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution.
On the peculiar facts of the case, the learned Judge then found as under:
Having examined all the relevant paragraphs I find that apart from the denial being therein the counter, respondent no. 1 himself, as I have stated above, disclosed in his writ petition acts of commissions and omissions on his part which led respondent No. 3 and 4 to submit adverse reports against him to High Court. That being so, In my opinion the order of termination against the respondent no. 1 was not passed by way of punishment contravening the requirement of Article 311(2) nor was it arbitrary or malafide.
40. Pathak Justice observed that he could' not subscribe to the observations of Justice Untwalia on the crucial point whether a Government servant (petitioner) is entitled to information from the relevant official records forming the basis of the order terminating his services. He summarised the law on the point in para 11 and observed as under:
The Law, it seems to me, is that where the services of a temporary Government servant or a probationer Government servant are terminated by an order which does not ex facie disclose any stigma or penal consequences against the Government servant & is merely a termination order simpliciter, there is no case ordinarily for assuming that it is anything but what it purports to be. Where however, the order discloses on the face of it that a stigma is cast on the Govt. servant or that it visits him with penal consequences, then plainly the case Is one of punishment. There may still be another kind of case where although the termination of service is intended by way of punishment, the order is framed as a termination simpliciter in such a case, if the Government servant is able to establish by material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by Article 311(2) of the Constitution have not been satisfied. In a given case, the Government servant may succeed in making out a prima facie case that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the official records far the purpose of determining the truth. It is in such case generally that the official records may be called for by the Court. It is not open to the Court to send for the official records on a mere allegation by the Government servant that the order is by way of punishment. For unless there is material on record before the Court in support of that allegation, an attempt by the court to find out from the record whether the termination of service is based on the, unsuitability of the Government servant in relation to the post held by him or is in reality an order by way of punishment will in effect be an unwarranted attempt to delve into the official records for the purpose of determining the nature of the order on the basis of a mere allegation of the Government servant. On a sufficient case being made out on the merits before the court by the Government servant it is open to the court to resort to scrutiny of the official records for the purpose of verifying the truth. I am unable to see why the court should decline to peruse the official records in an appropriate case and why, where considerations of privilege and confidentiality do not suffer, the information set forth in the records should not be made available to the Government servant. The mere possibility that the official records could confirm what the Government servant had set out to prove and prima facie had, in deed, proved should not shut out disclosure of the information.
The crucial judgment of State of U P. v. R.C. Trivedi was then interpreted by justice Pathak with the preface that whatever he has said in no way detracts from what this Court has laid down in Trivedi's case. He then extracted the relevant observations which found place in Trivedi's case & which were earlier made in Dhabi's case and Slat's case which was as under:
The from of the order, however, is not conclusive to its true nature. The entirety of 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.
Shamsher Singh's judgment was then referred and the following observation was extracted:
Whether a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct
He then referred to Vasudeva's case of Haryana, which was the first to be referred and relied upon by the other learned Judge justice Untwalia in para 12 and pointed out that the words used in that case certainly contemplates exception. The word 'normally' was emphasised.
41. He then made his own deduction from the above judgment & we have extracted then in above paragraph. It would thus be seen that according to Justice Pathak, the observations in Vasudeva's case were made with a view to lightening burden of the court and having regard to the heavy load of work presently occupying it. Further he treated them as if commendation only and emphatically observed:
Until the day that the recommendation is accepted, I believe it to be true that the jurisdiction of the courts extends to examining and scrutinising the official records in the circumstances to which I have specifically adverted.
42. It would thus, be seen that judgment of Trivedi's case and Vasudeva's case were interpreted differently atleast for the purposes of the emphasis & what Justice Pathak treated as recommendation, which is not to be followed unless accepted, Justice Untwalia thought it to be, a dictum, ratio decidendi and the decision in the case. This judgment of Saboji is of two learned judges of the Hon'ble Supreme Court & in view of that we have stated above only to observe and not to comment, on the different views expressed by the Hon'ble Judges in interpreting the earlier judgments, we feel that it would be the safe course to apply the decision of Trivedi's case which is the judgment of three Hon'ble Judges of the Supreme Court and in which again the entire case law from Purshotam Das Dhingra's case to Trivedi's case has been discussed. We are doing so because in this case principles laid down in a series of cases Shyamlal's case being the first and K.S. Subramanium's care being the last till then were considered. The court thoroughly surveyed the various opinions expressed and the decision given in following cases commencing from Shyamlal v. State : (1974)ILLJ260SC State of U.P. and Ors. v. Sughar Singh 2. : AIR1975SC1096 The State of Punjab v. P.S. Cheema 3. 1953 SCR 655 Satish Chandra Anand v. The Union of India 4. : (1954)IILLJ139SC Shyam Lal v. State of U.P. 5. 1958 SCR 828 Parshotam Lal Dhingra v. Union of India 6. : (1957)IILLJ189Bom Shrinivas Ganesh v. Union of India 7. AIR 1960 SC Gopi Kishore Prasad v. Union of India 8 (1961)1 SCR 606 The State of Orissa and Ors. v. Ram Narayan Das 9. : (1964)ILLJ68SC Madan Gopal v. State of Punjab 10. : 2SCR135 Rajendra Chandra Banerjee v. Union of India 11. : (1964)ILLJ752SC Champaklal Chimanlal v. The Union of India 12. AIR 1954 SC 449 Jagdish Mitter v. Union of India 13. (1968) SCR 231 State of Punjab v. Shri Sukh Raj Bahadur 14. : 19ITR143(SC) Union of India and Ors. v. R.S. Dhaba 15. (1971)2 SCC 191 State of Bihar and Ors. v. Shiv Bhikshuk Mishra 16. (1974) SCR. 754 R.S. Sial v. The State of U.P. and Ors. 17. 1974 (2) SLR 701 Shamsher Singh and Ors. v. State of Punjab 18. : (1976)IILLJ266SC The Regional Manager and Ors. v. Pawan Kumar Dubey 19. C.A. No. 590 of 1962 Decided on 23-10-1963 RC Lucy v. State of Bihar 20. (1967) 1 LLJ 718 AG Benjamin v. Union of India 21. : (1970)ILLJ367SC Ram Gopal Chaturvedi v. State of Madhya Pradesh 22. (1972)2 SCR 660 Union of India v. Gajendra Singh 23. : (1967)ILLJ401SC Divisional Personal Officer v. Raghavendrachar 24. : AIR1958SC905 Union of India v. Jaswant Ram 25. : 1SCR886 Madhav v. State of Mysore 26. (1962) Supp. 2 SCR 92 State of ( Bombay v. Abraham 27. Civil Appeal No. 212 of 1675 Decided on 30 7 1976 : 1976 (2) SLR 519 Union of India and Ors. v. K.S. Subramaniam 28. : (1967)IILLJ427SC I.N. Saksena v. State of Madhya Pradesh 29. : 1SCR271 Paras Nath Thakur v. Smt. Mohani Dasi and Ors. 30 (1962) SCR 509 Sri ha Ramanuja Jeer and Ors. v. Sri Ranga Ramanuja Jeer and Ors. 31. : 3SCR604 Rule Ram chandra Ayyar v. Ramalingam 32. : 2SCR673 Madamanchi Ramappa and Anr. v. Mithalru Bijappa
The court was of the opinion that the Constitutional position has been made crystal clear by a Beach of seven Judges in Shamsher Singh's case & where in the learned Chief Justice after exhaustive review of the decisions of this Court observed by the Supreme Court:
No abstract proposition can be laid down that where the Services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case If a 'probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without, his getting a reasonable opportunity or showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.
Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim protection....
The fact of holding an inquiry is not always conclusive, what is decisive is whether the order Is really by way of punishment... A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2).
An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can, be shown that the order though unexceptionable in form is made following a report based on misconduct.
43. The court then provided guidance to the High Courts in para 22 in the following manner:
Thus on a conspectus of the decisions of this Court referred to above it is obvious that there is not real conflict in their ratio decidendi and it is no longer open to any one to urge with any show of force that the constitutional position emerging from the decision of this Court in regard to cases of the present nature is not clear. It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of the Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for High Court in such a case, as observed by this Court in Union of India and Anr. v. K.S. Subramaniam (Civil Appeal No. 212of 1975 decided on July 30, 1976) (27)to which one of us was party, is to try to find out and follow the opinion expressed by larger benches of the Court In preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.
Taking the above as the principles of guidance, there is no doubt that from judgment in para 16 after considering Dhingra's case, Champaklal Chimanlal Shah's case and Shri Sukh Raj Bahadur's case, Shiv Bhikshuk Mishra's case and Sial's case, the court has made the following deductions:
The test for attracting Article 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the over riding test will always be whether the misconduct is a mere motive or is the very foundation of the order.
44. It Dictionaries cannot be dicators, equally 'words' cannot 'veto' and 'form' cannot 'tool or betool' any one. How can the form stop judicial review by Courts who are expected to be 'watchdogs' of the Constitution containing Article 311 of the Constitution, which is as pious, great, important and protector to a 'Civil Servant' as Bible to clergymen, Kuran to the Mullas and the great Geeta to Arjuna or Mahabharata Abrahm Lincon though in different context said 'For form of Government let fools contest'. True, it was a statement of political philoshophy, but how forms can stop our search for truth and justice in temples of justice? We have, therefore, held that 'words' can not 'veto' and the plethora of precedent mentioned above only confirms our views in the matter that 'form is not final' and we can lite the veil.
45. To summarise, at least the following judgments of the Hon'ble Supreme Court squarely lay down that forms are not conclusive and the court can scrap the label and lift the veil for examining the 'substance': state of U.P. v. Rule C Trivedi 1976(2) SLR 859 Shamsher Singh's case : (1974)IILLJ465SC State of Maharashtra v. Veerapa Rule Saboji AIR 1980 SC 42 decided on 6-9-1979. State of Uttar Pradesh v. Sughar Singh : (1974)ILLJ260SC State of Punjab v. Sukhrai Bahadur 1968 SCR 234 Gujrat Steel Co., case Supreme Court Civil Appeal No. 1212 of 1978 decided on 19-11-79 (Iyer, Desai; Kaushal.) Murugan Mills case Chartered Bank's case; Management of UB Dutt & Co. v. Workmen Union of India v. R.S. Dhaba : 3SCR603 State of Bihar v. Shiv Bhikshuk Mishra 1971 (2) SCC 191 R.S. Sial v. State of U.P. : (1974)ILLJ513SC
46. Thus, following the dictum in the above judgment and specially of the Full Bench in Ram Chandra's case and majority view of Gujarat Steel Tube case, we are of the opinion that the contention of Mr. Bhandari that the Court cannot go behind the form of the order and cannot quash an order of reversion or termination which has been expressed in innocuous language even though the reasons of misconduct was the very foundation for it, cannot be accepted We think that inspite of the innocuous nature of the reversion order in the instant case, we are entitled to look into the circumstances leading to it which form the bedrock or foundation of the impugned order.
47. It is neither proper nor permissible for this Court to enter into the arena of controversy to the interpretation of the various judgments of the Hon'ble Supreme Court as high lightened by the above judgment of State of Maharashtra v. Veerappa R. Sabaji and Anr.
48. As already referred above, it would be safer to confine our consideration on the basis of these observations, which have been made unanimously by a Bench of three Judges of the Hon'ble Supreme Court in Ram Chandra Trivedi's case (supra) in para 16 of which I have extracted above, the legal proposition that the form of the order is not conclusive in its true nature and the entirety of 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. As mentioned earlier these very observations find place in State of Punjab and Anr. v. Sukh Raj Bahadur's case (supra), a judgment of yet another three Hon'ble Judges of the Supreme Court.
49. It would thus be seen that where as in State of Uttar Pradesh and Ors. v. Sughar Singh's case (supra), an order of reversion was precisely quashed on the ground that it was based on adverse entry in his confidential character roll, in the other cases mentioned above, it was held that the form of the order is not conclusive of its true nature and the entirety of the circumstances preceding or attendant on the impugned order must be examined by she court and the over riding test will always be whether the misconduct is a mere motive or is the foundation of the order.
50. It will now have to be seen whether the entirety of circumstances preceding or attendant to the passing of the impugned order of reversion shows that it was passed due to the alleged misconduct contained in adverse entries showing the poor integrity and other Infirmities and lapses of the petitioner, as a mere motive or they were the foundation for passing the order of reversion. It is true that the difference between the two sometimes may be very thin & in a given case they may be overlapping also. However' so far as the instant case is concerned, a bare perusal of the official notings in the form of Annexure contained at page 74 to 81 of the paper book which have been relied upon by the learned Single Judge provides overwhelming clinching evidence to show that the adverse entries mentioned above and referred to there in and the enclosures to those note-sheets were the fundamental foundation of the impugned order of reversion It is not a case that some remote action was being taken on account of some act of negligence or misconduct, being kept as a motive in the mind of the authority concerned or remotely effecting the decision or influencing the decision, but It is a case of a direct proximate, clear and categorical cause and effect. Para 6 of the note sheets in terms makes a mention of it when it says:
6. The above reports call for consideration about his reduction to the lower grade of S.I. Grade 250 380 from 335 425.
51. It cannot be forgotten that in the confidential reports, which were annexed.to the notings' very serious adverse entries were made against the petitioner and they consist of the following:
He is extremely unreliable, deceitful, disobedient and most discourteous in his speech
52. 'Integrity' 'is shown as 'very. Much doubtful' in noting no. 4 at page 74 of the paper book reproduced from part 11 of his confidential report (paras nos. 4) & in para 5 'integrity as 'doubtful' (para 74 of the paper book). As already mentioned above, in para 6 it was clearly mentioned that above reports call for consideration about his reduction to the lower grade of S.I. Grade 250-380 from 335 425. The following test is laid down in Sukh Raj Bahadur's case (supra): 'The circumstances preceding or attendant on the order of termination of service', which in the present case would be reversion from the post, have to be examined in each case, the motive behind it being immaterial.
53. We are therefore, of the opinion that the alleged adverse entries, of misconduct mentioned above, contained in the notings relating to the reversion of the petitioner, were the very foundation of the impugned order and cannot be treated as a mere motive, even if it is held to be so, though according to finding it was not so That being so, the impugned order of reversion is certainly violative of Article 311 Clause (2) of the Constitution, as the petitioner is undoubtedly a civil servant and is entitled of protection of it.
54. The judgment of the Single Judge, though proceeded slightly on different reasonings, calls for no interference, because of our conclusions mentioned above.
55. Now reverting back to the broad discussions of the confidential reports in the judgment of the learned Single Judge we are of the opinion that the matter regarding the scope of consideration of a confidential report is certainly limited one. All that can be seen is, whether it is against any statutory rules or borne out of malice or based on some extraneous consideration, not relevant to the issues involved. This Court certainly cannot act as an appellate court for screening the confidential, reports and their correctness. We would have certainly examined this matter in greater details for consideration of submission of Mr. Bhandari that the learned Single Judge has exceeded his jurisdiction by acting as an appellate forum, while making adverse comments against the confidential reports. But we ate of the opinion that all those observations, in view of our decision, are now uncalled for and since they would not form the basis of the judgment, our decision on that point can be safely avoided.
56. The result of the entire discussions is that though we are confirming and upholding the judgment of the learned Single Judge, its final conclusion, for quashing the reversion order of the petitioner we are doing so on the basis of the grounds mentioned above only. It may also be pointed here that during course of the arguments it was brought to our notice that after the judgment of the learned Single Bench, inspite of fact that the stay order was granted the petitioner has been given officiating promotion on the same post on merit again.
57. The result is that this appeal fails and is hereby dismissed without any order as to costs.
58. Mr. Bhandari, learned Counsel for the appellants, submitted that in view of the fact that the line between 'motive' and 'foundation' is very thin and there are judgment of the Supreme Court taking conflicting views, and for the purposes of removal of conflict of the various judgment of the Hon'ble Supreme Court, this Court should certify this case to be a fit one to appeal to the Hon'ble the Supreme Court.
59. This request of Mr. Bhandari seemingly is based on the observations in one of the judgments of Shamsher Singh's case, in which the unsatisfactory state of the, law was commented upon, quoting Dr. Tripathi for support:
In some cases, the rule of guidance has been stated to be 'substance of the matter' and the 'foundation of the order. When does 'motive trespass into 'foundation'? When do we lift the veil of form to touch the 'substance'? When the Court says so. These Freddian' frontiers obviously fail in the work a day world and Dr. Tripathi's observations in this context are not without force. He says:
'As already explained, in a situation where the order of termination purports to be a mere order of discharge without stating the stigmatizing result of the departmental enquiry a search for 'substance of the matter will be indistinguishable from a search for the motive (real, unrevealed object) of the order. Failure to appreciate this relationship between motive (the real, but unrevealed object) and form (the apparent, or officially revealed object) in the present context has led to an unreal inter-play of words and phrases wherein symbols like 'motive', 'substance' 'from' or 'direct' parade in different combinations without communicating precise situations or entities in the world of facts.'
The need, in this branch of jurisprudence, is not so much to reach perfect justice but to lay down a plain test which the administrator and civil servant can understand without subtlety and apply without difficulty. After all, between 'unsuitability' and 'misconduct' thin partitions do their bounds divide'. And over the years, in the rulings of this Court the accent has shifted, the canons have varied and predictability has proved difficult because the play of legal light and shade has beep baffling. The learned Chief Justice has In his judgment, tackled this problem and explained the rule which must govern the determination of the question as to when termination of service of a probationer can be said to amount to discharge simpliciter and when it can be said to amount to punishment so as to attract the inhibition of Article 311.
However, the said observation of one of the Judges in Shamsher Singh's case of 1974 cannot be considered sufficient for granting certificate of fitness because in 1976, a bench of three Judges in 'Ramchandra Trivedi's case firmly held that there was no difference of opinion and divergence of views in the Supreme Court's various judgments on this branch of law. In fact, it has not been left to us now nor it has fallen upon us to give answer to this allegation of uncertainty, conflict or obscurity because of the following dictum laid down by the Hon'ble Supreme Court in Trivedi's case:
Indeed, we do not think that the principles of law declared and applied so often have really changed. But the application of the same law to the differing circumstance and fact of various cases which have come up to this court could create could the impression sometimes that there is same conflict between different decisions of this Court, Even, there appears to be some conflict it would we think, vanish when the ratio decidendi of each is correctly understood.
We cannot do anything better than mentioning that, in view of the Article 141 of the Constitution, the above observations of the Hon'ble Supreme Court clinches the issue of grant of certificate also. That being so the request of Shri Bhandari cannot be accepted and is consequently rejected.