Holding

The termination was a valid simple order permitted by the terms of appointment; the alleged misconduct was at most a motive and did not constitute the foundation of a punitive dismissal.

Summary

The appellants, recruited as daily‑wage constables on an ad‑hoc basis in the CRPF's 124 Auxiliary Battalion, had their services terminated when the battalion was disbanded and a permanent battalion was raised. The termination was justified on the ground that their services were no longer required and that they were not suitable for absorption because of "unsatisfactory" conduct recorded in their certificates of service. The appellants challenged the termination through representations, departmental appeals and writ petitions, alleging that the misconduct allegation was the true foundation of a punitive dismissal. The High Court dismissed the writ petitions, holding that the termination was a simple order permissible under the terms of appointment and that any misconduct was at most a motive, not the foundation. On appeal, the Supreme Court affirmed the High Court's view, stating that each case must be examined on its factual matrix to decide whether misconduct is a motive or a foundation, and that here the order was a valid simple termination. Consequently, the appeals were dismissed.

Issues considered

What is the legal distinction between misconduct as a motive versus as the foundation for termination of service?
Whether the termination of daily‑wage constables on the basis of disbandment of the auxiliary battalion, coupled with alleged misconduct, amounts to a punitive dismissal prohibited by Article 311 of the Constitution
Whether the employer could terminate the ad‑hoc constables without a departmental enquiry under the terms of their appointment

Subjects

service lawtermination of servicedaily wage constablead‑hoc appointmentmisconduct motive vs foundationsimple terminationpunitive dismissalArticle 311CRPFauxiliary battalion

Judgment

A JAi SINGH
v.
UNION OF INDIA AND ORS.

AUGUST 18. 2006

B [ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]

Service law:

Termination-Propriety of-Daily wage constables on ad hoc basis in
C auxiliary battalion-Report of misconduct of some constables-Decision of
disbandment of the auxiliary batta/ion-Te1mination of their services-Jn
departmental representation and appeal, termination was stated to be on
account of disbandment of battalion and they not having been found suitable
for absorption in regular service due to report of misconduct-Dismissal of
D their Writ Petition by High Court-On appeal, held: Termination wasjustified-
lt was a simple order of termination as permitted by the terms of employment
and the rules---Their misconduct was only a motive and not foundation of
termination.

Misconduct--Whether motive or foundation for termination-Held: It is
E to be a4judged in the factual background of each case.

Appellants were recruited as "Daily Wage Constables" on ad-hoc basis
by respondent No. 3. They were posted in an auxiliary battalion. A decision
was taken by the respondents to disband the said battalion and to install a
permanent battalion in its place. Appellants along with others went on a general
F strike. Such recruits were considered for being posted in permanent battalion.
The services of the appellants were terminated on the ground that their
services were no longer required due to disbandment of the unit The conduct
of appellants had been shown in Certificate of service as 'unsatisfactory'. Their
representations against termination were rejected observing that their
G services were no longer required after the disbandment of the battalion and
they were not found suitable for absorption on regular basis due to their
misconduct and their attitude. Their departmental appeal was also rejected.
Their Writ Petitions were also dismissed by the High Court. Hence the
present appeals.

H 734
JAi SINGH v. U.0.1. [PASAYAT, J.] 735
Dismissing the appeals, the Court A
·'
HELD: 1. The order of termination cannot be faulted in the background
of the facts that the conduct for which the appellants were not found suitable
for regularization cannot be said to be becoming of members of a disciplined
force; that it was a simple order of termination as permitted by the terms of
appointment and/or by the Rules; and that the indiscipline to which reference B
was made to find them unsuitable was not the foundation of the termination
order, but at the most the motive for it.1737-B-E]

2. In what situation the allegation of misconduct will be the motive and
in what cases it will be foundation for termination of service has to be adjudged C
in the factual background of each case. 1738-A-B]

Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and
Anr., [1992] 2 SCC 21; Samsher Singh v. State of Punjab and Anr., [1974] 2
SCC 831; Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Mazdoor
Sabha and Ors., [1980] 2 SCC 593; A.G. Benjamin v. Union of India, (1967) D
1 LLJ 718; State of Punjab v. Sukh Raj Bahadur, AIR (1968) SC 1089;
Dhananjay v. Chief Executive Officer, Zilla Parishad, Jalna, 12003] 2 SCC
386; Mathew P. Thomas v. Kera/a State Civil Supply Corporation Limited
and Ors., [2003] 3 SCC 263; Dipti Prakash Banerjee v. Satyendra Nath Bose
National Centre for Basic Sciences, Calcutta, [ 1999] 3 SCC 60; Pavanend~a
Narayan Verma v. Sanjay Gandhi PG! of Medical Sciences, [20021 l SCC E
520 and State ofHaryana and Anr. v. Satyender Singh Rathore, [2005] 7 SCC
518, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 510 of 2006.

From the Judgment and Order dated 9.12.2004 of the High Court of Delhi F
at New Delhi in W.P. (Civil) No. 4794/1995.

With Civil Appeal Nos. 512/2006, 513/2006, 511/2006 and 514/2006.

V. Sivasubramanian, Yudhveer Yadav and J.M. Nanavati Associaties
(N.P.) for the Appellant. G
Indra Sawhney, Kuna! Verma and Sushma Suri for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. These appeals involve identical questions and, H
736 SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A therefore, are disposed of by this common judgment. Writ Petitions filed by
the Appellants were dismissed by a Division Bench of the Delhi High Court
holding that termination of their services suffered from no infirmity.

Civil appeal No. 510 of 2006 relates to writ petition no. 4794 of 1995
while other appeals relate to other writ petitions which were disposed of
B following the view expressed in the common judgment.

Factual background in a nutshell is as follows:

The appellants were recruited by the respondent No.3 as ·'Daily Wage
Constables" and they were posted in an auxiliary battalion namely 124 Auxiliary
C Battalion. While the appellants were thus serving on ad-hoc basis, a decision
was taken by the respondents to disband the said Battalion and to install a
permanent battalion in its place. At that stage the appellants along with
others went on a general strike in Moradabad. Subsequently, they withdrew
their strike. Cases of all the Daily Wage Constables including that of the
D appellants was considered for their regularization and for placing them in a
permanent Battalion. The services of the appellants were, however, terminated
and similar certificates of service were issued to all the appellants. As against
Clause No. I0 of the said certificate of service giving reason for termination,
it was stated that since the services were no longer required due to disbandment
of the unit, the services of the appellants were being terminated. Clause
E NO-.·. 12 of the said certificate speaks of the conduct as against which three
heads were provide as good, satisfactory and unsatisfactory. The appellants
conduct had been shown in the said column as "unsatisfactory".

Being aggrieved by the said orders of termination, the appellants
submitted representations, which were considered by the Deputy Inspector
F (General) of Police, CRPF. By a communication dated 5th April, 1995,
representations filed by the appellants were disposed of. In the said order it
was stated that the appellants were engaged as auxiliary constable with CRPF
purely on ad-hoc basis on daily wages and that they were not found suitable
for absorption on regular basis in CRPF on disbandment of Auxiliary Battalion
G due to misconduct and attitude as reported by the Commandant of the 124
Auxiliary Battalion.

For the aforesaid reasons, the said representations were found to be
devoid of merit and were rejected.

H Being aggrieved by the same an appeal was also preferred which also
JAi SINGH v. U.0.1. [PASAYAT,J.] 737
came to be disposed of by order dated 4th June, 1994. This order states that A
the appellants were engaged in 124 Auxiliary Battalion CRPF on daily wage
basis and services of such persons could be terminated at any time without
assigning any reason. It was observed that Auxiliary Battalion stood disbanded
on 3 !st March, 1994 and only those constables who were fit in all respects
were engaged and as the appellants did not fall in the said category, their B
services were terminated. Consequently, their appeals were rejected.

The appellants preferred three writ petitions before the High Court
challenging the orders and actions aforestated of the respondents.

The High Court on consideration of the r:val submissions held that
conduct for which the appellants were not found suitable for regularization C
cannot by any stretch of imagination be said to be becoming of members of
a disciplined force. Accordingly, the writ petition was dismissed. It was held
that the act of the respondents before it finding out the suitability of the
appellants did not amount to imposition of any punishment and, therefore, no
enquiry was required to be initiated. The writ petitioners were at the relevant D
point of time members of the CRPF, a disciplined force and higher degree of
discipline was called for. The employer passed a simple order of termination
as permitted by the terms of appointment and/or permitted by the rules. The
indiscipline to which reference was made to find the appellants unsuitable
was not the foundation of the order of termination, but at the most the motive
for it. E

As noted above, the writ petitions were dismissed.

Learned counsel for the appellants. submitted that the termination
simpliciter was a camouflage. The alleged indiscipline was the foundation for
the termination for the termination and not the motive as noted by the High F
Court. There was no material to describe the appellants as the ring leaders
who allegedly instigated the other ad-hoc Constables of the erstwhile 124
Auxiliary Battalion. There was no full-fledged investigation in this regard. It
appears that preliminary enquiry was conducted by a higher ranked officer of
the post. According to learned counsel for the respondents the authorities G
were satlsfied that the unwarranted act the appellant rendered them unfit for
employment in an organization whith demands forbearance, endurance and
high order of discipline to serve in the most hostile conditions. The appellants
were not recruited in the force as regular cadets and were, in fact, daily wage
cadets. It was pointed out that in view of the unsatisfactory conduct they
H
738 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A were not considered for absorption.
In what situation the allegation of misconduct will be the motive and
in what cases they will be foundation has to be adjudged in the factual
background of each case. The issue has been examined in several decisions
including several Constitution Bench judgments and a judgment of 7-judges.
B An elaborate analysis of the various decisions was made by this Court in
Radhey Shyam Gupta v. UP. State Agro Industries Corpn. ltd. and Anr.,
(1999] 2 SCC 21. The matter was examined elaborately by 7-Judges in Samsher
Singh v. State of Punjab and Anr., [ 1974] 2 SCC 831. In the said case it was
noted in paragraphs 79 and 80 as follows:
c "79. The Enquiry Officer nominated by the Director of Vigilance recorded
the statements of the witnesses behind the back of the appellant. The
enquiry was to ascertain the truth of allegations of misconduct. Neither
the report nor the statements recorded by the Enquiry Officer reached
the appellant. The Enquiry Officer gave his findings on allegations of
D misconduct. The High Court accepted the report of the Enquiry Officer
and wrote to the Government on June 25, 1969 that in the light of the
report the appellant was not a suitable perrnn to be retained in
service. The order of termination was because of the recommendations
in the report.

E 80. The order of termination of the services of Jshwar Chand Agarwal
is clearly by way of punishment in the facts and circumstances of the
case. The High Court not only denied !shwar Chand Agarwal the
protection under Article 311 but also denied itself the dignified control
over the subordinate judiciary. The form of the order is n?t decisive
as to whether the order is by way of punishment. Even an innocuously
F 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 provision of Article 311. In such a case the simplicity
of the form of the order will not give any sanctity. That is exactly what
G has happened in the cas~ of lshwar Chand Agarwal. The order of
termination is illegal and must be set aside."

In Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Mazdoor
Sabha and Ors., [ 1980] 2 sec 593 it \\aS observed as follows:

H "53: Masters and servants cannot be permitted to play hide and seek
JAi SINGH v. U.0.1. [PASA YAT,J.] 739

with the law of dismissals and the plain and proper criteria are not to A
be misdirected by terminological cover-ups or by appeal to psychic
processes but must be grounded on the substantive reason for the
order, whether disclosed or undisclosed. The Court will find out from
other proceedings or documents connected with the formal order of
termination what the true ground for the termination is. If, thus,
scrutinized, the order has a punitive flavour in cause or consequence, B
it is dismissal. If it falls short of this test, it cannot be called a
punishment. To put it slightly differently, a termination effected because
the master is satisfied of the misconduct and of the consequent
desirability of terminating the service of the delinquent servant, is a
dismissal, even ifhe had the right in law to terminate with an innocent C
order under the standing order or otherwise. Whether, in such a case
the grounds are recorded in a different proceeding from the fmmal
order does not detract from its nature. Nor the fact that, after being
satisfied of the guilt, the master abandons the enquiry and proceeds
to terminate. Given an alleged misconduct and a live nexus between
it and the termination of service the conclusion is dismissal, even if D
full benefits as on simple termination, are given and non-injurious
terminology is used.

54. On the contrary, even if there is suspicion of misconduct the
master may say that he does not wish to bother about it and may not
go into his guilt but may feel like not keeping a man he is not happy E
with. He may not like to investigate nor take the risk of continuing a
dubious servant. Then it is not dismissal but termination simpliciter,
if no injurious record of reasons or punitive pecuniary cut-back on his
full ·terminal· benefits is found: For, in fact, misconduct hi not then the
moving factor in the discharge. We need not chase other hypothetical F
situations here."

In A.G. Benjamin v. Union of India, (1967) I LLJ 718 (SC) the factual
position was as follows:

"A charge memo was issued, explanation was received and an enquiry G

- officer was also appointed but before the enquiry could be completed,
the proceedings were dropped stating that "departmental proceedings
will take a much longer time and we are not sure whether after going
through all the formalities, we will be able to deal with the accused
in the way he deserves."
H
740 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A In that case, order of termination was held not to be punitive. The ratio
was adopted in State of Punjab v. Sukh Raj Bahadur. AIR (1968) SC I089 and
it was concluded as follows:

"The departmental enquiry did not proceed beyond the stage of
submission ofa charge sheet followed by the respondent's explanation
B thereto. The enquiry was not proceeded with; there were no sittings
of any enquiry officer, no evidence recorded and no conclusion arrived
at on the equity."

The question whether termination of service is simpliciter or punitive
has been examined in several other cases e.g. Dhananjay v. Chief Executive
C Officer, Zilla Parishad, Jalna, (2003] 2 SCC 386 and Mathew P. Thomas v.
Kera/a State Civil Supply Corporation Limited and Ors., (2003] 3 SCC 263.
An order oftem1ination simpliciter passed during the period of probation has
been generating undying debate. The recent two decisions of this Court in
Dipti Prakash Bannerjee v. Satyendra Nath Bose National Centre for Basic
D Sciences, Calcutta, [1999] 3 SCC 60 and Pavanendra Narayan Verma v.
Sanjay Gandhi PG/ of Medical Sciences, (2002] I SCC 520 after survey of
most of the earlier decisions touching the question observed as to when an
order of termination can be treated as simpliciter and when it can be treated
as punitive and when a stigma is said to be attached to an employee discharged
during the period of probation. The learned counsel on either side referred
E to and relied on these decisions either in support of their respective contentions
or to distinguish them for the purpose of application of the principles stated
therein to the facts of the present case. In the case of Dipti Prakash Banerjee
(supra) after referring to various decisions it was indicated as to when a
simple order of termination is to be treated as "founded" on the allegations
F of misconduct and when complaints could be only as a motive for passing
such a simple order of termination. In para 21 of the said judgment a distinction
is explained thus:

"If findings were arrived at in an enquiry as to misconduct, behind the
back of the officer or without a regular departmental enquiry, the
G simple order of termination is to be treated as "founded" on the

-
allegations and will be bad. But if the enquiry was not held, no
findings were arrived at and the employer was not inclined to conduct
an enquiry but, at the same time, he did not want to continue the
employee against whom there were complaints, it would only be a
case of motive and the order would not be bad. Similar is the position
H
JAi SINGH v. U.0.1. [PASAYAT,J.] 741
ifthe employer did not want to enquire into the truth of the allegations A
because of delay in regular departmental proceedings or he was
doubtful about securing adequate evidence. In such a circumstance,
the allegations would be a motive and no< the foundation and the
simple order of termination would be valid. From a long line of decisions
it appears to us that whether an order of termination is simpliciter or
punitive has ultimately to be decided having due regard to the facts B
and circumstances of each case. Many a times the distinction between
the foundation and motive in relation to an order of termination either
is thin or overlapping. It may be difficult either to categorize or
classify strictly orders of termination simpliciter falling in one or the
other category, based on misconduct as foundation for passing the C
order of termination simpliciter or on motive on the ground of
unsuitability to continue in service."

These aspects were highlighted recently in State of Haryana and Anr.
v. Satyender Singh Rathore, [2005] 7 SCC 518.
D
In the background of facts as noticed by the High Court the order of
termination cannot be faulted. The High Court had rightly declined to interfere.
We find no reason to take a different view. The appeals are accordingly
dismissed.

K.K.T. Appeals dismissed.