UNION OF INDIA AND OTHERSversusMAHAVEER C. SINGHVI

                        [2010] 9 S.C.R. 246


A                 UNION OF INDIA AND OTHERS
                                v.
                     MAHAVEER C. SINGHVI
                   (SLP (C) No. 27702 of 2008)
                           JULY 29, 2010
B
        [ALTAMAS KABIR, J.M. PANCHAL AND CYRIAC
                      JOSEPH, JJ.]

        Service Law:
c
        Discharge of an IFS probationer during the period of
    probation - Challenged - HELD: The order had been issued
    on account of the alleged misconduct of the probationer which
    was the very basis of the order, although nothing was found
0   against him on the basis of the inquiries conducted - The
    order was passed as a punitive measure without giving the
    probationer any opportunity of defending himself and, as
    such, was rightly set aside by the High Court- Natural justice.

       The respondent, who was appointed to the Indian
E Foreign Service on 21.9.1999, was, by order dated
  13.6.2002, discharged from the service as IFS Probationer
                                 ~

  during the period of probation. He challenged the order
  before the Central Administrative Tribunal. It was
  submitted that the order was passed because the
F respondent protested against the manner in which he
  had been deprived of his choice of German as his
  language allotment by deliberately altering the rules of
  allotment of languages for the year 1999 to benefit a
  certain candidate. The Tribunal dismissed the application.
G The respondent filed a writ petition before the High Court
  emphasizing that his discharge from service was not a
  discharge simpliciter, but was the result of an inquiry
  conducted behind his back on a complaint of one 'NC'
  regarding threat and abusive and sexually explicit
H                                246
   UNION OF INDIA AND ORS. v. MAHAVEER C.             247
                   SINGHVI
remarks alleged to have been made by him to her              A
daughter, though nothing adverse could be found
against him. The High Court quashed the order of
discharge and directed reinstatement of the respondent
with all consequential benefits. Aggrieved, the Union of
India and others filed the petition for special leave to     B
appeal.

    Dismissing the petition, the Court

     HELD: 1.1. It has been repeatedly expressed by this
Court from Purshotam Lal Dhingra* onwards that if the        C
inquiries on the allegations made against an employee
formed the foundation of the order of discharge, without
giving the employee concerned an opportunity to defend
himself, such an order of discharge would be bad and
liable to be quashed. [para 29] [264-A-B]                    D

     *Purshotam Lal Dhingra vs. Union of India 1958 SCR
828; and Radhey Shyam Gupta vs. UP. State Agro Industries
Corporation Ltd. and Anr. 1998 (3) Suppl. SCR 558 = (1999)
2 sec 21, relied on.
                                                             E
     Shamsher Singh vs. State of Punjab and Another 1975
(1) SCR 814=AIR 1974 SC 2192 = 1974 (2) sec 831,
referred to.

     1.2. In the instant case, although, nothing was found   F
against the respondent on the basis of the inquiries
conducted on the complaint made by 'NC', the same was
taken into consideration which is reflected from the
observation made by the Joint Secretary (CNV) that he
had no doubt that the respondent would blacken the           G
country's name. There is absolutely no material on record
to support such an observation made by a responsible
official in the Ministry, which clearly discloses the
prejudice of the authorities concerned against the
respondent. What is, however, most damning is that a
                                                             H
    248    SUPREME COURT REPORTS              (2010] 9 S.C.R.


A decision was ultimately taken by the Director, Vigilance
  Division to terminate the services of the respondent,
  stating that the proposal had the approval of the Minister
  of External Affairs. [Para 31] [264-E-H; 265-A-E]

         Dipti Prakash Banerjee vs. Satyendra Nath Bose
8
    National Centre for Basic Sciences, Calcutta and Ors. 1999
    (1) SCR 532= (1999) 3 SCC 60, held inapplicable.

       1.3. The petitioners have not been able to
  satisfactorily explain why the rules/norms for allotment of
C languages were departed from only for the year 1999, so
  that the respondent was denied his right of option for
  German. The mode of allotment was amended for the
  1999 Batch in such a calculated fashion that the officer,
  who was at Serial No.7, was given the choice of German
D over and above the respondent who was graded at two
  stages above her. [Para 29] [263-F-H]

      1.4. Not only is it clear from the materials on record,
  but even in their pleadings the petitioners have
E themselves admitted that the order of 13th June, 2002,
  had been issued on account of the respondent's
  misconduct and that misconduct was the very basis of
  the said order. That being so, having regard to the
  consistent view taken by this Court that if an order of
  discharge of a probationer is passed as a punitive
F measure, without giving him an opportunity of defending
  himself, the same would be invalid and liable to be
  quashed, and the same finding would also apply to the
  respondent's case. The order dated 13th June, 2002, by
  which the respondent was discharged from service, was
G punitive in character and had been motivated by
  considerations which are not reflected in the said order.
  [Para 28 and 31) [264-F-G; 263-E]

      1.5. Since the High Court has gone into the matter in
H depth after perusing the relevant records and nothing has
     UNION OF INDIA AND ORS. v. MAHAVEER C.             249
                     SINGHVI
been pointed out to persuade this Court to take a              A
different view, there is no reason to interfere with the
judgment and order of the High Court. [Para 31] [264-E-
H]
     Shamsher Singh vs. State of Punjab and Another 1975
                                                               8
(1) SCR 814=AIR 1974 SC 2192 = 1974 (2) sec 831;
Benjamin (A.G.) vs. Union of India 1967 (1) LLJ 718 (SC);
Pavanendra Narayan Verma vs. Sanjay Gandhi PG/ of
Medical Sciences 2001 (5) Supl. SCR 41= (2002) 1 SCC
520; State of Haryana vs. Satyender Singh Rathore 2005 (3)     C
Suppl. SCR 126= (2005) 7 SCC 518; Jai Singh vs. Union of
India (2006) 9 SCC 717; Gujarat Steel Tubes Ltd. vs. Gujarat
Steel Tubes Mazdoor Sabha AIR 1980 SC 1896; Life
Insurance Corp. of India vs. Shri Raghvendra Seshagiri Rao
Kulkarni JT 1997 (8) SC 373; State of Punjab vs. Shri Sukh
Raj Bahadur 1968 (3) SCR 234; Chaitanya Prakash and Anr.       D
vs. H. Omkarappa (2010) 2 SCC 623; State of Bihar vs. Shiva
Bhikshuk Mishra 197.1 (2) SCR 191 = (1970) 2 SCC 871;
Anoop Jaiswal vs. Government of India and Anr. 1984 (2)
SCR 453=(1984) 2 SCC 369; Nehru Yuva Kendra
Sangathan vs. Mehbub Alam Laskar 2008 (1) SCR 1069 =           E
(2008) 2 sec 479, cited.

                       Case Law Reference:
     1999 (1) SCR 532         held inapplicable   para 5
                                                               F
     1958 SCR 828             relied on           para 13
     1998 (3) Suppl.
     SCR 558                  cited               para 14
     1975 (1) SCR 814         referred to         para 15      G
     1958 SCR 828             cited               para 20
     1967 (1) LLJ 718 (SC) cited                  para 21
     2001 (5) Supl. SCR 41 cited                  para 22
                                                               H
    250      SUPREME COURT REPORTS              [2010] 9 S.C.R.


A         2005 (3) Suppl. SCR 126 cited                para 22

          (2006) 9 sec 111       cited                 para 22

          AIR 1980 SC 1896       cited                 para 22

          JT 1997 (8) SC 373     cited                 para 22
B
          1968 (3) SCR 234       cited                 para 22

          (201 o) 2 sec 623      cited                 para 23

          1971 (2) SCR 191       cited                 para 27
c
          1984 (2) SCR 453       cited                 para 27

          2008 (1 ) SCR 1069     cited                 para 27

      CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
D 27702 of 2008.
        From the Judgment & Order dated 29.08.2008 of the High
    Court of Delhi at New Delhi in W.P. (C) No. 8091/2003.

        P.P. Malhotra, ASG, Rekha Pandey, Rohitash S. Nagar,
E Madhurima, Chetan Chawla, Anil Katiyar, B. Krishna Prasad
  for the Petitioners.

       Jayant Bhushan, Pallav Shisodia, Manish K. Bishnoi,
    Samir Ali Khan, Gautam Talukdar for the Respondent.
F         The Judgment of the Court was delivered by

       ALTAMAS KABIR, J. 1. After an outstanding academic
  career under the Rajasthan Secondary Board and the
  University of Jodhpur, the Respondent appeared for the Civil
G Services Examination, 1998, conducted by the Union Public
  Service Commission and on account of his brilliant
  performance, he was appointed to the Indian Foreign Service
  on 21st September, 1999. But on 13th June, 2002, he was
  discharged from service by the following order :-
H
    UNION OF INDIA AND ORS. v. MAHAVEER C.                 251
          SINGHVI [ALTAMAS KABIR, J.]
          "The President hereby discharges forthwith from          A
    service Shri Mahaveer C. Singhvi, IFS Probationer (1999
    Batch), in accordance with the terms of employment
    issued vide order No. Q/PA.11/578/32/99 dated 21st
    September, 1999.
                                                                   B
          By order and in the name of the President.
                                                          Sd/-
                                                  (P.L. Goyal)
                                         Addi. Secretary (AD)"
      2. Although, the aforesaid order appears to be an            C
innocuous order of discharge simpliciter of a probationer, the
same has given rise to a question of law relating to service
jurisprudence which has been considered over and over again
for the last five decades. However, even though the principles
laid down by this Court in the various cases have been uniformly   D
followed, there have been individual cases which have thrown
up new but related issues which have been considered on their
own merits. As will be apparent from the aforesaid order dated
13th June, 2002, the question with which we are concerned in
this Special Leave Petition (S.L.P.) relates to the discharge      E
from service of a probationer during his period of probation. In
order to be able to appreciate the said question in the facts of
this case, it is necessary to set out the background in which
the order of 13th June, 2002, came to be passed and the
manner in which the same was dealt with by the Central             F
Administrative Tribunal and the Delhi High Court.

     3. The case made out by the Respondent .before the
Central Administrative Tribunal, is that he was deployed to the
East Asia Division of the Ministry of External Affairs. He was,
thereafter, asked to give his preference for allotment of the      G
study of a compulsory foreign language. The Respondent opted
for French, German, Arabic and Spanish in the said order of
preference. In view of his position in the merit list, the
Respondent should have been allotted German. However, in
deviation from the prevalent procedure whereby the allotments      H
    252     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A    relating to study of a compulsory foreign language were made
    on the basis of gradation in the merit list, the Respondent was
    informed by a letter dated 11th January, 2001, that he had been
    allotted Spanish which was his last choice. The Respondent
    thereafter made a representation against such allotment, but
B   he was directed by the Petitioner No.2 Mr. P.L. Goyal, who was
    the then Additional Secretary (Admn.), to remain silent over the
    issue. The Respondent was, thereafter, posted in Madrid,
    Spain, in confirmation of the allocation of Spanish to him, but
    for his language training he was directed to proceed to
c   Valladolid, which was at a great distance from Madrid. The
    Respondent thereupon made a further request for arrangiri~ his
    language training at Madrid, where he had been posted sinci::
    he wanted to take his dependent and ailing parents with him
    to Madrid. On account of the sudden deterioration of the health
    condition of his parents, the Respondent sought permission to
0
    join the language course at a later date and such permission
    was apparently granted by the Mission at Madrid by a
    communication dated 10th September, 2001. As the date for
    the new course was not intimated to the Respondent and there
E   was no improvement in his father's condition, the Respondent
    sought further extension to join the Mission and the same was
    also granted on 18th February, 2002. Accordingly, the
    Respondent planned to join the Mission in July/August, 2002,
    but in the note of 18th February, 2002, the request for providing
    medical facilities and diplomatic passports to the Respondent's
F   dependent parents was not granted. According to the
    Respondent, he was thereafter served with the order of
    discharge from service dated 13th June, 2002, set out
    herein above.

G      4. The Respondent challenged the said order dated 13th
  June, 2002, before the Central Administrative Tribunal in
  O.A.No.2038 of 2002, contending that after the expiry of his
  period of probation, he stood confirmed and his services could
  not have been terminated without an enquiry in view of the
H provisions of Article 311 (2) of the Constitution. It was also
    UNION OF INDIA AND ORS. v. MAHAVEER C.                    253
          SINGHVI [ALTAMAS KABIR, J.]
contended that the order of 13th June, 2002, had been passed          A
in complete violation of the principles of natural justice as the
Respondent was not given a hearing or an opportunity to
defend himself against the allegations which formed the
foundation of the said order. It was also submitted that since
the Respondent had protested against the dubious manner in            B
which he had been illegally deprived of his choice of German
as his language allotment, the authorities who had deliberately
altered the rules of allotment of language for the year 1999 to
benefit a certain candidate, were determined to see that the
Respondent was discharged from service. It was submitted that         c
the method adopted for the year 1999 for allotment of languages
was discontinued thereafter and the authorities thereafter
reverted to the old method which was continuously followed till
it was altered only for the year 1999. It was submitted that by
adopting the method in question, the candidates who figured           0
in the select list of ten, but were graded below the Respondent,
were given an opportunity to exercise their option, while denying
such opportunity to the Respondent who was left with no option
of preference as per his choice at the end of the exercise.

     5. Negating the submissions made on behalf of the                E
Respondent herein, the Tribunal by its judgment and order
dated 4th September, 2003, dismissed the Respondent's
O.A.No.2038 of 2002, upon holding that the Petitioners had no
intention of conducting an inquiry against the Respondent, but
they did not also want him to continue in service, which could        F
only be a motive and not the foundation for discharging the
Respondent from service. In order to buttress its finding, the
Tribunal relied upon the decision of this Court in Dipti Prakash
Banerjee vs. Satyendra Nath Bose National Centre for Basic
Sciences, Calcutta & Ors. [(1999) 3 SCC 60], wherein the              G
question as to in what circumstances an order of termination
of a probationer can be said to be punitive fell for consideration.
It was held by this Court that whether an order of termination of
a probationer can be said to be punitive or not depends on
whether the allegations which are the cause of the termination        H
    254     SUPREME COURT REPORTS                 [2010] 9 S.C.R


A are the motive or foundation. It was observed that if findings
  were arrived at in inquiry as to misconduct, behind the back of
  the officer or without a regular departmental enquiry, a simple
  order of termination is to be treated as founded on the
  allegations and would be bad, but if the enquiry was not held,
B and 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's services, it would only be
  a case of motive and the order of termination of the employee
  would not be bad.
c      6. One other aspect which was subsequently agitated
  before the High Court but does not find place in the decis10!"
  rendered by the Central Administrative Tribunal in its judgment
  and order dated 4th November, 2003, relates to a complaint
  alleged to have been made against the Respondent by one
D Mrs. Narinder Kaur Chadha, the mother of one Ms. Arleen
  Chadha, to the Minister of External Affairs on 7th February,
  2002, alleging that the Respondent had been threatening her
  daughter and the entire family. In the said complaint, it was
  indicated that the Respondent had met her daughter in 1997
E and had been harassing her since then. It was also indicated
  that her daughter had been thoroughly demoralized and
  disturbed by the Respondent's behaviour and that she had
  suffered both mentally and physically, as a result of which her
  marriage could not be finalized. The complainant sought
F suitable action against the Respondent for allegedly misusing
  his official position.

       7. It also appears that the Minister concerned had met Mrs.
  Narinder Kaur Chadha and Ms. Arleen Chadha on the same
G day and the matter had been referred to the Joint Secretary and
  the Director (Vigilance) and a copy of the complaint was sent
  by the Minister to the Vigilance Division on 8th February, 2002,
  with a direction that the matter be looked into at the earliest.
  Some enquiries appear to have been conducted about the
H Respondent's conduct and character by the Joint Secretary,
    UNION OF INDIA AND ORS. v. MAHAVEER C.                   255
          SINGHVI [ALTAMAS KABIR, J.]
Foreign Service Institute (FSI) but nothing adverse could be        A
found against him. Despite the above, on 19th February, 2002,
the Joint Secretary (Vigilance) held further discussions with the
Joint Secretary (Admn.) and, thereafter, a·Memorandum was
issued to the Respondent on the very same day alleging his
unauthorized absence.                                               B

      8. Although, the said allegations were duly denied by the
Respondent, on 8th March, 2002, the Director, Vigilance
Division, prepared a formal inquiry report stating that there were
some complaints of misconduct against the Respondent and
that the Minister desired action to be taken against him. C
Accordingly, on 5th April, 2002, Shri P.L. Goyal, Additional
Secretary (Admn.) noted that as desired by the Minister, the
Respondent had been called for a hearing in the presence of
the Joint Secretary (CNV) and Under Secretary (FSP) and a
decision was ultimately taken by the Director on 23rd April, D
2002, to terminate the services of the Respondent and stated
that the proposal had the approval of the Minister of External
Affairs. Certain new materials were introduced against the
Respondent relating to a written complaint which had been
received from a Desk Officer in the Department of Personnel E
& Training (DoPT) alleging that the Respondent had threatened
him and tried to bribe him to effect a change in allotment of his
service from the l.F.S. The proposal to terminate the services
of the Respondent was said to have been ultimately approved
 by all the superior authorities and in their reply filed before the F
 Tribunal, the Petitioners had stated that the Respondent herein
 had been discharged from service, primarily for his misconduct
 in office. This led the Tribunal to conclude that the record was
 so clear that the only conclusion that could have been arrived
 at is that the findings of misconduct arrived at by the Petitioners G
 were only the motive for the orders discharging the Respondent
 from service.

    9. The Respondent challenged the judgment and order of
the Tribunal dated 4th September, 2003, dismissing his
                                                                    H
    256     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A O.A.No.2038 of 2002, before the Delhi High Court in
  W.P.(C)No.8091 of 2003. It was emphasized on his behalf that
  his discharge from service was not a discharge simpliciter, but
  the decision taken in that behalf was the result of an enquiry
  conducted behind his back in relation to a complaint alleged
B to have been made by Mrs. Narinder Kaur Chadha regarding
  threatening, abusive and sexually explicit remarks allegedly
  made by the Respondent to her daughter. It was submitted that
  the same would be evident from the pleadings made on behalf
  of the Petitioners which would unequivocally constitute an
c admission on the part of the Petitioners that the order of
  discharge dated 13.6.2002 discharging the Respondent from
  his duties was passed because of the Respondent's alleged
  misconduct which was the very foundation of the said order.

        10. It was also contended that the Additional Secretary, Mr.
D P.L. Goyal and some others were nursing a grudge against him
  on account of his protest against the dubious alteration of the
  allotment of language rules for the year 1999, in order to give
  a choice of language allotment to five candidates who were
  below the Respondent in the Select List of ten chosen for the
E Foreign Service, while denying the same to the Respondent.
  Once the complaint was received from Mrs. Narinder Kaur
  Chadha, the Petitioners stepped into over drive to remove the
  Respondent from the Foreign Service Cadre by any means at
  their disposal, but without giving the Respondent an opportunity
F of hearing to defend himself.

        11. On behalf of the Petitioners herein, the submissions
  made before the Tribunal were reiterated by the learned
  Additional Solicitor General. It was admitted that the Petitioners
G had discharged the Respondent from service for misconduct
  during his period of probation, which the Petitioners were
  entitled to do not only under the terms and conditions of the
  Respondent's appointment, but also under Rule 16(2) of the
  Indian Foreign Service (Recruitment, Cadre, Promotion,
  Seniority) Rules, 1961, which empowers the Central
H
    UNION OF INDIA AND ORS. v. MAHAVEER C.                  257
          SINGHVI [ALTAMAS KABIR, J.]
Government to discharge any probationer from service, who           A
may be found unsatisfactory during the period of probation.

     12. It was also contended that since no enquiry was
contemplated against the Respondent, the order of discharge
simpliciter during the Respondent's period of probationary          B
service, without attaching any stigma, was valid and no
interference was called for therewith in the Writ Petition.
Reliance was placed on several d!=!cisions, but, in particular,
on the decision in Dipti Prakash Banerjee's case (supra) which
has been discussed hereinbefore in paragraph 5.
                                                                    c
     13. After considering the various decisions cited by the
learned Additional Solicitor General, beginning with the
decision of this Court in Purshotam Lal Dhingra vs. Union of
India [1958 SCR 828], the High Court accepted the case of
the Respondent and observed that it was left with no doubt that     D
the entire object of the exercise was to camouflage the real
intention of the Petitioners, which was to remove the
Respondent for something about which they had convinced
the~<:elves, but did not think it necessary to give the
Respondent an opportunity to clear his name. The High Court         E
by the impugned judgment dated 29.9.2008, accordingly
quashed the order of discharge of the Respondent from the
Indian Foreign Service dated 13.6.2002, along with the orders
passed by the Tribunal on 4.9.2003 dismissing the
Respondent's O.A.No.2038 of 2002 and on 14.11.2003                  F
rejecting the Respondent's Review Application No.323 of 2003,
with a direction to reinstate the Respondent in the Indian
Foreign Service Cadre of the 1999 Batch, along with all
consequential benefits, including consequential seniority, within
a month from the date of the order.
                                                                    G
     14. In allowing the Writ Petition filed by the Respondent,
the High Court referred to and relied on the decision of this
Court in the case of Radhey Shyam Gupta vs. UP. State Agro
Industries Corporation Ltd. & Anr. [(1999) 2 SCC 21], wherein
this Court had held that in cases where termination is preceded     H
    258     SUPREME COURT REPORTS                [2010] 9 S.C.R.


A by an enquiry, evidence is received and findings as to
  misconduct of a definite nature are arrived at behind the back
  of the officer and where on the basis of such a report the
  termination order is issued, such an order would be violative
  of the principles of natural justice.
B
       15. The High Court also referred to the Special Bench
  decision of this Court in Shamsher Singh vs. State of Punjab
                                      =
  and another [AIR 1974 SC 2192 1974 (2)SCC 831] which
  was a decision rendered by a Bench of seven Judges, holding
C that the decisive factor in the context of the discharge of a
  probationer from service is the substance of the order and not
  the form in determining whether the order of discharge is
  stigmatic or not or whether the same formed the motive for or
  foundation of the order.

D      16. In the facts of the case the High Court came to the
  conclusion that a one-sided inquiry had been conducted at
  different levels. Opinions were expressed and definite
  conclusions relating to the Respondent's culpability were
  reached by key officials who had convinced themselves in that
E regard. The impugned decision to discharge the Respondent
  from service was not based on mere suspicion alone. However,
  it was all done behind the back of the Respondent and
  accordingly the alleged misconduct for which the services of
  the respondent were brought to an end was not merely the
F motive for the said decision but was clearly the foundation of
  the same.

       17. The High Court was convinced that although the order
  of discharge dated 13.6.2002 by which the Respondent was
  discharged from service was not without substance, the same
G was bad and liable to be quashed since the respondent's
  services had been terminated without a formal inquiry and
  without giving him any reasonable opportunity to defend himself.

       18. Appearing for the Petitioners, Mr. P.P. Malhotra,
H learned Additional Solicitor General of India, reiterated the
    UNION OF INDIA AND ORS. v. MAHAVEER C.                  259
          SINGHVI [ALTAMAS KABIR, J.]
arguments which had been advanced before the learned               A
Tribunal and also before the High Court emphasizing that since
the Respondent had been discharged from service by a simple
order of discharge without any stigma attached thereto, the
Respondent was not entitled to the protection of Article 311 (2)
of the Constitution. It was urged that since the Respondent had    B
not completed the probationary period, and was a probationer
when the order of discharge was made, it was within the
competence of the Petitioners to pass such an order if they
were dissatisfied with the performance of the Respondent
during the probation period. It was sought to be urged that an     c
assessment of a candidate appointed on probation has to be
made before his services may be confirmed. The process to
make an assessment of the performance of the probationer
often requires the confirming authorities to look into and
consider his complete performance, which could include lapses
                                                                   0
on his part which could have adverse consequences for the
employer.

     19. Mr. Malhotra submitted that in the instant case the
indisciplined acts and behaviour of the Respondent during his
period of probation were noticed and it was found that instead     E
of being an asset to the Indian Foreign Service, the Respondent
would ultimately become an embarrassment and thus were of
the view that he should be discharged from the service. Mr.
Malhotra repeated the stand taken by him before the High Court
that it was not the intention of the Petitioners to conduct an     F
inquiry into the various materials received relating to the
services ·Of the Respondent, and, accordingly, a decision was
taken to discharge him from service on the ground of his
unsatisfactory performance during his period of probation,
although, the same does not find any place in the order of         G
discharge which was an order of discharge simpliciter. Mr.
Malhotra urged that in a series of judgments passed by this
Court it had repeatedly been held that if no stigma was attached
to the separation of ways between the authorities and the
probationer, the same would not amount to being the                H
    260      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A foundation of a discharge simpliciter. Mr. Malhotra urged that
  the High Court had erred in taking a contrary stand and had
  travelled beyond its jurisdiction in going beyond the satisfaction
  of the authorities in reaching the conclusion that the inquiry
  conducted against the Respondent formed the foundation and
B not the motive for the impugned order of discharge.

         20. In the aforesaid regard, Mr. Malhotra firstly referred to
    the decision of this Court in Purshotam Lal Dhingra vs. Union
    of India [1958 SCR 828] as to the scope of Article 311 of the
    Constitution in relation to the appointment of a Government
C   servant to a permanent post either in a substantive capacity or
    on probation or even on an officiating basis. Dealing with
    appointments on probation, this Court observed that an
    appointment to a permanent post in Government service on
    probation means, as in the case of a person appointed by a
D   private employer, that the person so appointed is taken on trial.
    Such an employment on probation would generally be for fixed
    periods, but could also remain unspecified and under the
    ordinary law of master and servant would come to an end during
    or at the end of the probation period, if the servant so appointed
E   on trial was found unsuitable and his service was terminated
    by a notice. It was accordingly held that appointment to a
    permanent post in Government service on probation is of a
    transitory character and the person so appointed does not
    acquire any substantive right to the post and his service can
F   be terminated at any time during the period of probation.

       21. Reference was also made to the decision rendered
  by this Court in Benjamin (A.G.) vs. Union of India [1967 (1)
  LLJ 718 (SC)], where the principles enunciated in Purshotam
G Lal Dhingra (supra) were followed in regard to the termination
  of service of a temporary Government servant. What was
  sought to be highlighted was the right of the authorities to stop
  a departmental proceeding and to pass an order of discharge
  simpliciter to avoid attaching a stigma to the order of dismissal.

H         22. Several other decisions on the same question, namely,
    UNION OF INDIA AND ORS. v. MAHAVEER C.                    261
          SINGHVI [ALTAMAS KABIR, J.]

(1) Pavanendra Narayan Verma vs. Sanjay Gandhi PG/ of                A
Medical Sciences [(2002) 1 SCC 520]; (2) State of Haryana
vs. Satyender Singh Rathore [(2005) 7 SCC 518]; (3) Dipti
Prakash Banerjee (supra); (4) Jai Singh vs. Union of India
[(2006) 9 SCC 717]; (5) Gujarat Steel Tubes Ltd. vs. Gujarat
Steel Tubes Mazdoor Sabha [AIR 1980 SC 1896]; (6) Life               B
Insurance Corp. of India vs. Shri Raghvendra Seshagiri Rao
Kulkarni [JT 1997 (8) SC 373]; and (7) State of Punjab vs. Shri
Sukh Raj Bahadur [1968 (3) SCR 234] were also referred to
by Mr. Malhotra. In the two latter cases, this Court relying on
the principles laid down in Purshotam Lal Dhingra's case             c
(supra), reiterated the law that the requirement to hold a regular
departmental enquiry before dispensing with the services of a
probationer cannot be invoked in the case of a probationer,
especially when his services are terminated by an innocuous
order which does not cast any stigma on him. However, it was
                                                                     0
also observed that it cannot be laid down as a general rule that
in no case can an enquiry be held. If the termination was
punitive and was brought about on the ground of misconduct,
Article 311 (2) would be attracted and in such a case a
departmental enquiry would have to be conducted.
                                                                     E
    23. Mr. Malhotra lastly referred to one of the latest
decisions of this Court in this field in Chaitanya Prakash & Anr.
vs. H. Omkarappa [(2010) 2 SCC 623], wherein it was
observed that even if an order of termination refers to
unsatisfactory service of the concerned employee, the same           F
could not be termed as stigmatic.

     24. Mr. Malhotra submitted that having regard to the
consistent view of this Court that the services of a probationer
can be discharged during the probationary period on account          G
of unsatisfactory service by way of termination simpliciter,
without holding a departmental enquiry, the order of the High
Court was contrary to the settled legal position and was,
therefore, liable to be set aside.

    25. Appearing for the respondent, Mr. Jayant Bhushan,            H
    262      SUPREME COURT REPORTS                [201 O] 9 S.C.R.


A learned Senior Advocate, submitted that the contentions urged
  on behalf of the Petitioners herein had been fully considered
  by the High Court which had, after considering the various
  decisions of this Court, rightly come to the conclusion that the
  Respondent's discharge from service was not a discharge
B simpliciter, but was on account of several findings arrived at
  behind his back on the basis of complaints made relating to
  the Respondent's moral integrity. He also submitted that apart
  from the above, the protest raised by the Respondent with
  regard to the unlawful manner in which the allotment of foreign
c languages to the 1999 Batch of l.F.S. officers had been made
  by the authorities, was also a major factor in the decision-
  making process for removing the Respondent from the service.
  It was contended that the authorities were desperate to cover
  up the highly dubious and motivated manner in which the rules
  of allotment were altered only in respect of the 1999 Batch of
0
  l.F.S. appointees in order to favour a particular candidate who
  was graded lower than the Respondent. Mr. Bhushan
  highlighted the fact that despite being graded higher than five
  other candidates in the select list of ten, the Respondent was
E denied his right of preference relating to allotment of a foreign
  language of his choice in order to accommodate one Ms.
  Devyani Khobragade, who was graded at two places below the
  Respondent and wanted German as her first preference. Mr.
  Bhushan submitted that a great amount of political pressure
  was brought to bear upon the concerned authorities to ensure
F that Ms. Khobragade was allotted German as her language
  preference, as she happened to be daughter of a powerful
   l.A.S. officer in Maharashtra.

      26. Mr. Bhushan submitted that the High Court had
G correctly held that the order of discharge was only a
  camouflage, and in substance, it was a punitive order based
  on malafide considerations relating to findings of misconduct
  recorded against the Respondent behind his back.

          27. Mr. Bhushan submitted that, as has been rightly held
H
    UNION OF INDIA AND ORS. v. MAHAVEER C.                   263
          SINGHVI [ALTAMAS KABIR, J.]

by the High Court, the case of the Respondent was fully             A
covered by the series of decisions of this Court which have also
been referred to on behalf of the petitioners. Mr. Bhushan,
however, laid special emphasis on the following decisions of
this Court, some of which have also been cited on behalf of the
petitioners, namely, (1) State of Bihar vs. Shiva Bhikshuk          B
Mishra [(1970) 2 SCC 871]; (2) Shamsher Singh (supra); (3)
Gujarat Steel Tubes Ltd. (supra); (4) Anoop Jaiswal vs.
Government of India & Anr. [1984) 2 SCC 369]; (5) Nehru
Yuva Kendra Sangathan vs. Mehbub Alam Laskar [(2008) 2
sec 479], wherein it has been repeatedly observed that if a         c
discharge is bas~d upon misconduct or if there is a live
connection between the allegations of misconduct and
discharge, then the same, even if couched in language which
is not stigmatic, would amount to a punishment for which a
departmental enquiry was imperative. Various other decisions
                                                                    0
were also cited by Mr. Bhushan, which reflect the same views
as expressed by this Court in the above-mentioned decisions.

     28. From the facts as disclosed and the submissions made
on behalf of the respective parties, there is little doubt in our
minds that the order dated 13th June, 2002, by which the            E
Respondent was discharged from service, was punitive in
character and had been motivated by considerations which are
not reflected in the said order.

     29. The Petitioners have not been able to satisfactorily       F
explain why the rules/norms for allotment of languages were
departed from only for the year 1999 so that the Respondent
was denied his right of option for German and such choice was
given to Ms. Khobragade who was at two stages below the
Respondent in the gradation list. The mode of allotment was         G
amended for the 1999 Batch in such a calculated fashion that
Ms. Khobragade, who was at Serial No. 7, was given her choice
of German over and above the Respondent who was graded
at two stages above her. The reason for us to deal with this
aspect of the matter is to see whether the case of the
                                                                    H
    264     SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A   Respondent is covered by the views repeatedly expressed by
    this Court from Purshotam Lal Dhingra (supra) onwards to the
    effect that if the inquiries on the allegations made against an
    employee formed the foundation of the order of discharge,
    without giving the employee concerned an opportunity to
8   defend himself, such an order of discharge would be bad and
    liable to be quashed.

       30. In addition to the above, the then Minister of External
  Affairs, Government of India, appears to have taken an active
  interest on the complaint made by Mrs. Narinder Kaur Chadha
C and, although, nothing was found against the Respondent on
  the basis of the inquiries cdnducted, the same was taken into
  consideration which is reflected from the obseNation made by
  Mr. Jayant Prasad, Joint Secretary (CNV) that he had no doubt
  that the respondent would blacken the country's name. There
D is absolutely no material on record to support such an
  obseNation made by a responsible official in the Ministry, which
  clearly discloses the prejudice of the authorities concerned
  against the Respondent.

E      31. Since the High Court has gone into the matter in depth
  after perusing the relevant records and the learned Additional
  Solicitor General has not been able to persuade us to take a
  different view, we see no reason to interfere with the judgment
  and order of the High Court impugned in the Special Leave
F Petition. Not only is it clear from the materials on record, but
  even in their pleadings the Petitioners have themselves
  ad,mitted that the order of 13th June, 2002, had been issued
  on. account of the Respondent's misconduct and that
  misconduct was the very basis of the said order. That being
  so, having regard to the consistent view taken by this Court that
G if an order of discharge of a probationer is passed as a punitive
  measure, without giving him an opportunity of defending himself,
  the same would be invalid and liable to be quashed, and the
  same finding would also apply to the Respondent's case. As
  has also been held in some of the cases cited before us, if a
H
       UNION OF INDIA AND ORS. v. MAHAVEER C.                 265
             SINGHVI [ALTAMAS KABIR, J.]
finding against a probationer is arrived at behind his back on        A
the basis of the enquiry conducted into the allegations made
against him/her and if the same formed the foundation of the
order of discharge, the same would be bad and liable to be
set aside. On the other hand, if no enquiry was held or
contemplated and the allegations were merely a motive for the         B
passing of an order of discharge of a probationer without giving
him a hearing, the same would be valid. However, the latter view
is not attracted to the facts of this case. The materials on record
reveal that the complaint made by Mrs. Narinder Kaur Chadha
to the Minister of External Affairs had been referred to the Joint    c
Secretary and the Director (Vigilance) on 8th February, 2002,
with a direction that the matter be looked into at the earliest.
Although, nothing adverse was found against the Respondent,
on 19th February, 2002, the Joint Secretary (Vigilance) held
further .discussions with the Joint Secretary (Admn.) in this         D
regard. What is, however, most damning is that a decision was
ultimately taken by the Director, Vigilance Division, on 23rd
April, 2002, to terminate the services of the Respondent, stating
that the proposal had the approval of the Minister of External
Affairs. This case, in our view, is not covered by the decision
                                                                      E
of this court in Dipti Prakash Banerjee's case (supra).

     32. The Special Leave Petition is, accordingly dismissed,
with cost to the Respondent, assessed at Rs.25,000/- to be
paid to the Respondent by the Petitioners. All interim orders
are vacated and the Petitioners are given a month's time from         F
today to comply with the directions given by the High Court in
its order dated 29th August, 2008, while allowing the writ
application filed by the Respondent.

R.P.                        Special Leave Petition dismissed.