IMPORTANT POINTS
1. Termination of service of a probationer on the basis of preliminary enquiry, on certain allegations, conducted behind the back of the employee would amount to punitive order attracting Article 311 of the Constitution of India.
2. Under Para 541 of the U.P. Police Regulations, before terminating services of a probationer Constable, he must be informed of the grounds and required to explain his position and his reply must be considered by the Superintendent of Police and failure to follow this procedure would render termination punitive attracting Article 311 of the Constitution.

Headnote:(i) Constitution of India-Article 311-Dismissal, removal or reduction in rank of civil servants-Probationer-Probation completed-No order of confirmation passed-Termination of service simplicitor-Termination on basis of preliminary enquiry conducted behind back of employee about his involvement in a quarrel and use of filthy language against fellow employee-No regular enquiry conducted-Order definitely punitive in character as it was founded on allegations of misconduct-Provisions of Article 311 violated-Termination order set aside.
       The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in sevice or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive". (Para 28)
       "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. (Para 29)
       In the instant case the appellant, who was recruited as a Constable in the 34th Battalion, Pradeshik Armed Constabulary, U.P., had successfully completed his training and had also completed two years of probationary period without any blemish. Even after the completion of the period of probation under Para 541 of the U.P. Police Regulations, he continued in service in that capacity. The incident in question, namely, the quarrel was between two other Constables in which the appellant, to begin with, was not involved. When the quarrel was joined by few more Constables on either side, then an enquiry was held to find out the involvement of the constables in that quarrel in which filthy language was also used. It was through this enquiry that appellant s involvement was found established. The termination was founded on the report of the preliminary enquiry as the employer had not held the preliminary enquiry to find out whether the appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years ago but was held to find out his involvement. In this situation, particularly when it is admitted by the respondent that the performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct. (Para 30)
       (ii) U.P. Police Regulations-Para 541-Probationer-Termination of service of constable-Procedure for-Probationer-constable has to be informed of grounds and required to explain his position-Reply to be considered by Superintendent of Police-Failure to follow procedure-Effect of-Termination would amount to punitive attracting Article 311 of the Constitution. (Paras 31 to 35)

Judgement Key Points

Based on the provided legal document, here are the key points regarding the termination of service, the distinction between "motive" and "foundation," and the procedural requirements:

1. Status of the Probationer and Article 311 Applicability * A probationer does not have an automatic right to hold a post upon completing the probationary period; permanent status is acquired only through a specific order of confirmation. * Temporary government servants and probationers are entitled to the protection of Article 311(2) of the Constitution. Their services can be terminated without assigning reasons, unless the termination is punitive in nature. * Courts can lift the veil of an innocuously worded order to determine if the real nature of the termination was punitive. (!) (!) (!) (!) (!) (!) (!) (!)

2. Distinction Between "Motive" and "Foundation" * Motive: The moving power or factor that impels the employer to take an action (e.g., general unsuitability). If the order is based on general unsuitability, it is not punitive. * Foundation: The actual basis or reason upon which the order is founded. If the order is founded on allegations of misconduct or negligence, it is punitive. * When an enquiry is held to ascertain allegations of misconduct, and the termination order is passed based on the findings of that enquiry, the "motive" (misconduct) transforms into the "foundation," rendering the order punitive. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

3. Nature of the Enquiry and Termination Order in the Present Case * The appellant had completed the probationary period without blemish. The incident involving the quarrel and use of filthy language was between other constables, and the appellant was initially not involved. * A preliminary enquiry was conducted to find out the appellant's involvement in the quarrel, not to assess his general suitability for the post. * The termination order was founded on the report of this preliminary enquiry which established the appellant's involvement. Since the order was founded on allegations of misconduct rather than general unsuitability, it was held to be punitive in character. (!) (!) (!) (!)

4. Procedural Violations under U.P. Police Regulations * Under Para 541 of the U.P. Police Regulations, before terminating the services of a probationer constable, the employee must be informed of the grounds, required to explain his position, and his reply must be considered by the Superintendent of Police. * Failure to follow this mandatory procedure renders the termination punitive, attracting Article 311. * In this case, there was a total non-compliance with Para 541; the appellant was not issued a notice intimating the grounds for termination, nor was his explanation obtained. (!) (!) (!) (!) (!)

5. Judicial Precedents on "Substance over Form" * Courts are entitled to find the true nature of a termination order by examining the substance rather than the semblance. * An order of termination simpliciter is unexceptionable if preceded by an enquiry to ascertain general suitability. However, if a full-scale departmental enquiry or a preliminary enquiry into misconduct precedes the order, it attracts Article 311. * The form of the order is not conclusive; if the order casts an aspersion on character or is founded on misconduct, it is considered punitive. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

JUDGMENT

S. Saghir Ahmed, J.-Leave granted.

2. What is "motive"; what is "foundation"; what is the difference between the two; these are questions which are said to be still as baffling as they were when Krishna Iyer, J. in Samsher Singh v. State of Punjab1, observed as under :

"Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however, harmlessly the order may be phrased. And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be `the 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 Fraudian frontiers obviously fail in the work-a-day world."

3. But, as we shall presently see, the law, on account of recent judgments concerning the services of a probationer, is fairly well-settled and there is no cause for being confounded or bewildered. The perplexity which, at one time, surrounded the torrid question involved in this case has yielded to the clarity of reasons propounded by this Court from time to time in recent times to which a reference shall be made during the course of this discussion.

4. The appellant was recruited on 1.10.1985 as a Constable in 34th Battalion, Pradeshik Armed Constabulary, U.P. under the U.P. Pradeshik Armed Constabulary Act, 1948. He completed his training on 6th of September, 1986 and was, thereafter, placed on probation for a period of two years. He completed his period of probation on 5th of September, 1988 but a year later, on 19th of July, 1989, his services were terminated by a simple notice in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. The order of termination was challenged by the appellant before the U.P. Public Service Tribunal which, by its judgment dated 18.1.1993, allowed the claim petition and set aside the order dated 19.7.1989 by which the services of the appellant were terminated. Respondents 1 and 2, thereafter, approached the High Court through a Writ Petition which was allowed on 27th of November, 1997 and the judgment passed by the Tribunal was set aside.

5. Learned counsel for the appellant has contended that the order by which the services of the appellant were terminated, though innocuous apparently, was, in fact, punitive in nature. The appellant, it is contended, could not have been removed from service without holding a regular departmental enquiry. It is further contended that the courts including the Tribunal constituted under the U.P. Public Services (Tribunal) Act, 1976 have full jurisdiction to go behind the order to find out whether it was an order of termination simpliciter or it was an order passed by way of punishment. It is pointed out that this aspect of the matter was considered by the Tribunal which, on the basis of the facts set out in the counter-affidavit filed on behalf of the respondents as also the entire service record of the appellant which was produced before it, came to the conclusion that the order was punitive in nature. This finding, it is contended, could not have been disturbed by the High Court in a Writ Petition under Article 226 of the Constitution.

6. Learned counsel for the respondents has, on the contrary, contended that the appellant was a temporary employee and, therefore, his services could be terminated at any time by giving him a month s notice in term of U.P. Temporary Government Servants (Termination of Service) Rules, 1975. In the Counter-Affidavit filed before the Tribunal before which the order dated 19.7.1989 (termination order) was challenged by the appellant, it was, inter alia, stated that on 24th of June, 1989 while camping at Ghat Varanasi for Flood Relief Training, a quarrel had taken p

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2000 Supreme(SC) 848

Cases Referred (31)