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PETITIONER:

CHANDRA PRAKASH SHAHI

Vs.

RESPONDENT:

STATE OF U.P. & ORS.

DATE OF JUDGMENT: 25/04/2000

BENCH:

D.P.Wadhwa, S.S.Ahmad

JUDGMENT:

S.SAGHIR AHMAD, J.

Leave granted.

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 vs. State of Punjab, (1974) 2 SCC 831

= 1975 (1) SCR 814 = AIR 1974 SC 2192, 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 `Freudian' frontiers

obviously fail in the work-a-day world." 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. 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. Learned counsel for the

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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. 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 terms 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 place between two Constables

as a result of which Constable Arun Prakas Tewari used

filthy and unparliamentary language against Constable Radhey

Shyam Pandey. He also caused injuries to Constable Radhey

Shyam Pandey by kicks and fists. He was joined by Constable

Rajesh Kumar Pandey. Other Constables also joined the fray.

A preliminary enquiry was conducted by Shri Kailash Chaube,

Assistant Commandant, P.A.C. and a few constables including

the appellant were found guilty of indiscipline and

misbehaviour and it was for this reason that the services of

the appellant were terminated. The respondents admitted in

the counter- affidavit that there was no adverse material

against the appellant before the incident in question. The

original records which were produced before the Tribunal and

were scrutinised by it indicated that the order by which the

services of the appellant were terminated was passed on

account of his alleged involvement in the quarrel between

the constables at the Ghat Varanasi Camp. The Tribunal has

found as under:- "The preliminary enquiry file No.Ja-2/89

relating to the petitioner and other constables of 34th Bn.

P.A.C. Varanasi from page 21/34 to 22/33 dated 26.6.89

shows that the enquiry was conducted by Sri Kailash Chaube,

Assistant Commandant, 34th Bn. P.A.C. Varanasi and in the

preliminary enquiry report he concluded at pages 21/34 to

22/37 that the petitioner along with others had indulged in

a misconduct of hurling blows and used filthy language to

the superior officers of the Department and he was found

guilty along with others for the said misconduct and

misbehaviour. Thereafter on internal page 6 the impugned

order of termination dated 19.7.89 was passed in respect of

the petitioner and on the same day he was served the copy of

the order." It was in view of the above finding that the

termination order was held to be punitive in nature and was

consequently set aside by the Tribunal but the High Court

relying upon the decision of this Court in State of U.P.

vs. Kaushal Kishore Shukla, (1991) 1 SCC 691 = 1991 (1) SCR

29, quashed the order of the Tribunal. The first contention

of the learned counsel for the appellant is about the status

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of the appellant. Learned counsel has contended that the

appellant could not have been legally removed from service,

except by way of disciplinary action in accordance with the

requirements of Article 311(2) of the Constitution. It is

contended that after completion of the period of probation,

the appellant had acquired `permanent' status and,

therefore, his services could not have been terminated by a

mere notice or a month's pay in lieu thereof. This argument

cannot be accepted. An assertion that on completion of the

period of probation the appellant had acquired `permanent'

status is based on a misreading of the provisions of Para

541 of the U.P. Police Regulations, relevant portion of

which is quoted below : "541. (1) Recruits will be on

probation for a period of two years, except that -- (a)

those recruited directly in the Criminal Investigation

Department or Districts Intelligence Staff will be on

probation for three years, and (b) those transferred to the

Mounted Police will be governed by the directions contained

in paragraph 84 of the Police Regulations. If during the

period of probation their conduct and work have been

satisfactory and they are approved by the Deputy Inspector

General of Police at the end of the period of probation for

service in the force the Superintendent of Police will

confirm them in their appointment." A perusal of the above

provision would indicate that the period of probation is two

years. The Regulation is silent as to the maximum period

beyond which the period of probation cannot be extended. In

the absence of this prohibition, even if the appellant

completed two years of probationary period successfully and

without any blemish, his period of probation shall be

treated to have been extended as a `permanent' status can be

acquired only by means of a specific order of confirmation.

This Court in State of Punjab vs. Dharam Singh (1968) 3 SCR

1 = AIR 1968 SC 1210 ruled out the proposition of automatic

confirmation on completion of the period of probation. This

Court ruled that the `permanent' status can be acquired only

by a specific order confirming the employee on the post held

by him on probation. To the same effect is the decision in

Partap Singh vs. U.T. of Chandigarh (1979) 4 SCC 263 =

1980 (1) SCR 487 = AIR 1980 SC 57. In Municipal

Corporation, Raipur vs. Ashok Kumar Misra (1991) 3 SCC 325

= 1991 (2) SCR 320 = AIR 1991 SC 1402, the same principles

were reiterated. In view of the above, the contention that

the appellant had acquired `permanent' status cannot be

accepted. His status was that of a probationer. Now, it is

well-settled that the temporary Government servants or

probationers are as much entitled to the protection of

Article 311(2) of the Constitution as the permanent

employees despite the fact that temporary government

servants have no right to hold the post and their services

are liable to be terminated at any time by giving them a

month's notice without assigning any reason either in terms

of the contract of service or under the relevant statutory

rules regulating the terms and conditions of such service.

The courts can, therefore, lift the veil of an innocuously

worded order to look at the real face of the order and to

find out whether it is as innocent as worded. (See:

Parshotam Lal Dhingra vs. Union of India, AIR 1958 SC 36 =

1958 SCR 828). It was explained in this decision that

inefficiency, negligence or misconduct may have been the

factors for inducing the Government to terminate the

services of a temporary employee under the terms of the

contract or under the statutory Service Rules regulating the

terms and conditions of service which, to put it

differently, may have been the motive for terminating the

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services but the motive by itself does not make the order

punitive unless the order was "founded" on those factors or

other disqualifications. Following the decision of

Parshottam Lal Dhingra's case (supra), this Court in State

of Bihar vs. Gopi Kishore Prasad, AIR 1960 SC 689, held

that if the services of a probationer are terminated on the

basis of an enquiry into the allegations of misconduct and

inefficiency, the order would be punitive. It was pointed

out that in the case of a probationer, it is always open to

the Government to hold an enquiry merely to assess the

merits of the employee to find out whether he was fit to be

retained in service and confirmed. In another case relating

to a probationer, namely, in State of Orissa vs. Ram

Narayan Das, 1961 (1) SCR 606 = AIR 1961 SC 177, where the

services were governed by Rule 55-B of the Civil Services

(Classification, Control and Appeal) Rules which provided

that where the services of a probationer were intended to be

terminated either during the period of probation or at the

end of that period for any fault or on account of his

unsuitability, he would be apprised of the grounds of

unsuitability and would also be afforded an opportunity to

show-cause against it before orders are passed against him,

it was held that the termination order would not become

punitive merely because of an antecedent enquiry but the

real object or purpose of the enquiry had to be found out

whether it was held merely to assess the general

unsuitability of the employee or it was held into charges of

misconduct or inefficiency etc. In Ranendra Chandra

Banerjee vs. Union of India, AIR 1963 SC 1552 = 1964 (2)

SCR 135, which again was a case relating to a probationer,

it was held that on account of Rule 55-B of the Civil

Services (Classification, Control and Appeal) Rules if the

enquiry was held for the limited purpose of finding out

whether the employee was fit to be retained or not, the said

enquiry would not make the order punitive as the enquiry

could not be related to any misconduct of the employee.

This view was reiterated in Jagdish Mitter vs. Union of

India, AIR 1964 SC 449. In Madan Gopal vs. State of

Punjab, AIR 1963 SC 531 = 1963 Supp.(3) SCR 716, the order

by which the services of the employee were terminated was an

order simpliciter in nature, which was innocuously worded,

but it was held by this Court that the form of the order was

not decisive and the Court could go behind that order to

find out whether it was founded upon the misconduct of the

employee. These cases, namely, State of Bihar vs. Gopi

Kishore Prasad AIR 1960 SC 689; State of Orissa vs. Ram

Narayan Das (1961) 1 SCR 606 = AIR 1961 SC 177; Madan Gopal

vs. State of Punjab (1963) Supp. (3) SCR 716 = AIR 1963 SC

531; and Jagdish Mitter vs. Union of India AIR 1964 SC 449

were considered by this Court in Champaklal Chimanlal Shah

vs. Union of India (1964) 5 SCR 190 = AIR 1964 SC 1854

where the services of the appellant, who was a temporary

employee, were terminated by giving him a simple notice

specifying therein that the services would stand terminated

with effect from the date mentioned therein. But, before

the termination of his services, he was called upon to

explain certain irregularities and was also asked to submit

his explanation, but no regular departmental enquriy was

held. It was held that since no punitive action was taken

against the appellant, there was no question of the

applicability of Article 311(2) of the Constitution. In

another significant decision in State of Punjab vs. Sukh

Raj Bahadur (1968) 3 SCR 234 = AIR 1968 SC 1089 where the

respondent, who was officiating in the Punjab Civil Service

(Executive Branch) was reverted to his substantive post in

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the Delhi Administration after issuing him a charge sheet to

which a reply was submitted by the respondent but the

disciplinary enquiry was not proceeded with, and an order of

reversion was passed, it was held that the order could not

be treated to have been passed by way of punishment. The

Court laid down the following propositions : "1. The

services 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 Art. 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. 3. 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 is 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 Art.

311 of the Constitution. 5. If there be a full-scale

departmental enquiry envisaged by Art. 311, i.e. an

Enquiry Officer is appointed, a charge-sheet submitted,

explanation called for and considered, any order of

termination of service made thereafter will attract the

operation of the said Article." These principles as also the

principle laid down in Champaklal's case (supra) were

reiterated by this Court in Union of India and Ors. vs.

R.S. Dhaba (1969) 3 SCC 603; State of Bihar vs. Shiva

Bhikshuk Mishra (1970) 2 SCC 871 = 1971 (2) SCR 191 = AIR

1971 SC 1011; R.S. Sial vs. State of U.P. (1974) 3 SCR

754 = AIR 1974 SC 1317 = (1975) 3 SCC 111 and it was laid

down that in order to attract the provisions of Article

311(2) it has to be seen whether the misconduct or

negligence was a mere motive for the order of reversion or

termination or whether it was the very foundation of that

order. It was again reiterated that the form of the order

was not conclusive of its true nature and the Court has to

examine the entirety of circumstances preceding or attendant

on the order of termination. To the same effect is the

decision of this Court in State of U.P. vs. Sughar Singh

(1974) 1 SCC 218 = 1974 (2) SCR 335 = AIR 1974 SC 423, which

related to reversion and in which reliance was placed on two

earlier decisions in Madhav Laxman Vaikunthe vs. State of

Mysore AIR 1962 SC 8 = 1962 (1) SCR 886 and State of Bombay

vs. F.A. Abraham AIR 1962 SC 794 = 1962 Supp. (2) SCR 92.

It was, however, laid down that if the order visits the

employee with penal consequences, the order would be

punitive. It was for this reason that the order of

reversion in that case was held to be bad. In the same

year, came the Seven-Judge Bench decision of this Court in

Samsher Singh vs. State of Punjab (1974) 2 SCC 831 = AIR

1974 SC 2192 = 1975 (1) SCR 814, in which "Motive" and

"Foundation" theory was reiterated and it was laid down that

the question whether an order terminating the services of a

temporary employee or a probationer was by way of punishment

or not would depend on the facts and circumstances of each

case. The form of the order, it was observed, was not

conclusive and an innocuously worded order, terminating the

services of a temporary employee or a probationer may, in

the facts of the case, be found to have been passed on

account of serious and grave misconduct in utter violation

of Article 311(2) of the Constitution. This decision was

followed in State of Punjab vs. P.S. Cheema AIR 1975 SC

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1096 = (1975) 4 SCC 84 and the termination order, regarding

which a concurrent finding of fact was recorded by the trial

court, the lower appellate court and also by the High Court

in second appeal that it was punitive in nature, was held to

be bad. While the judicial pronouncements stood at that

stage, the entire case law was reviewed by this Court in

State of U.P. vs. Ram Chandra Trivedi AIR 1976 SC 2547 =

(1976) 4 SCC 52 = 1977 (1) SCR 462, in which it was

contended that the legal and Constitutional position with

regard to an order of termination was not settled as there

were conflicting decisions of this Court on that question.

This contention was not accepted and on a review of the

entire case law, including the Seven- Judge Bench decision

in Samsher Singh's case (supra), it was laid down that the

Court has consistently held that the "motive", in passing an

order of termination or reversion, operating in the minds of

the Govt. was not a relevant factor for determining whether

the order was passed by way of punishment. What was

determinative of the true nature of the order was not its

exterior form but the "foundation" on which it was based.

If misconduct or negligence was the foundation of the order

of termination, or for that matter, reversion, the order

would be punitive in nature. The Court also referred to the

decision in Regional Manager vs. Pawan Kumar Dubey (1976) 3

SCC 334 = AIR 1976 SC 1766 = 1976 (3) SCR 540, in which it

was observed as under : "We think that the principles

involved in applying Article 311(2) having been sufficiently

explained in Shamsher Singh's case (AIR 1974 SC 2192)

(supra) it should no longer be possible to urge that Sughar

Singh's case (supra) could give rise to some misapprehension

of the law. 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 different

circumstances and facts of various cases which have come up

to this Court could create the impression sometimes that

there is some conflict between different decisions of this

Court. Even where there appears to be some conflict, it

would, we think, vanish when the ratio decidendi of each

case is correctly understood. It is the rule deducible from

the application of law to the facts and circumstances of a

case which constitutes its ratio decidendi and not some

conclusion based upon facts which may appear to be similar.

One additional or different fact can make a world of

difference between conclusions in two cases even when the

same principles are applied in each case to similar facts."

( Emphasis supplied ) Termination simpliciter of a temporary

Govt. servant on the ground of unsuitability does not

attract the provisions of Article 16, nor is the protection

under Article 311(2) of the Constitution available to a

temporary Govt. servant unless the termination involved

"stigma", was the dictum laid down by this Court in

Commodore Commanding, Southern Naval Area, Cochin vs. V.N.

Rajan (1981) 2 SCC 636 = AIR 1981 SC 965 = (1981) 3 SCR 165.

In Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes

Mazdoor Sabha (1980) 2 SCC 593 = (1980) 1 LLJ 137 = 1980 (2)

SCR 146 = AIR 1980 SC 1896, it was laid down that a Court or

Tribunal is entitled to find out the true nature of the

termination order, namely, whether it is punitive or not.

In this regard, the form of the order will not be decisive

and the Court can lift the veil to see the true nature of

the order. The Court observed that the substance, not

semblance, governs the decision. The Court further observed

that what was decisive was the plain reason for the

discharge and not the strategy of a non-enquiry. If the

basis was not the misconduct, the order could be saved. The

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Court further observed that the mere fact that after being

satisfied of the guilt the Govt. abandons the enquiry and

proceeds to terminate the services by a simple order, would

not be the relevant factor in considering the true nature of

the order. Given an alleged misconduct and a live nexus

between it and the termination of service, the conclusion

would be "dismissal" even if full benefits, as on simple

termination, are given and non-injurious terminology is

used. The tests for determining whether termination was a

termination simpliciter or by way of punishment laid down in

earlier decisions were reiterated in Oil & Natural Gas

Commission vs. Md. S. Iskender Ali (Dr.) (1980) 3 SCC 428

= (1980) 2 LLJ 155 = 1980 (3) SCR 603 = AIR 1980 SC 1242 and

Nepal Singh vs. State of U.P. (1980) 3 SCC 288 = (1980) 2

LLJ 161 = (1980) LIC 747. The latter was a case of

termination simpliciter on account of the drive launched by

the Inspector General of Police for weeding out Police

Officers who were unsuitable or unfit to be continued in

service. On the facts and circumstances of that case, it

was held that the question whether the appellant, who was a

temporary servant, should be retained in service, directly

arose during the drive launched to weed out unsuitable

officers and it was for this reason that the termination

order was upheld, particularly as there was nothing to show

that the termination order was made by way of punishment.

In another decision which, incidentally, again is Nepal

Singh vs. State of U.P. (1985) 1 SCC 56 = AIR 1985 SC 84 =

(1985) 2 SCR 1, the Court held that where the services of a

temporary Govt. servant are terminated on the ground that

his reputation for corruption makes him unsuitable for

retention in the service, the State, or for that matter, any

statutory employer, must take great care when proceeding to

terminate a career on the ground of unsuitability, to ensure

that its order is founded on definable material, objectively

assessed and relevant to the ground on which the termination

is effected. It was observed that the Court will view with

great disfavour any attempt to circumvent the requirement of

Article 311(2). In Anoop Jaiswal vs. Govt. of India

(1984) 2 SCC 369 = 1984 (2) SCR 453 = AIR 1984 SC 636, it

was found on a consideration of the entire record that the

real foundation for the order of discharge of the appellant-

probationer was the alleged act of misconduct. This, it was

observed, made the impugned order punitive in nature and

was, therefore, held to be bad. Shesh Narain Awasthy vs.

State of U.P. & Ors. (1988) 2 LLJ 99 was a case of a

temporary Constable in the U.P. Police whose services were

terminated by an apparently innocuous order. On scrutiny it

was found that the services were terminated on account of

his alleged participation in activities of unrecognised

Police Karamchari Parishad. The termination order,

therefore, was held to be bad as having been passed without

following the procedure prescribed under Article 311(2) of

the Constitution. In Ravindra Kumar Misra vs. U.P. State

Handloom Corporation Ltd. 1987 Supp. SCC 739 = AIR 1987 SC

2408 = 1988 (1) SCR 501, it was held that for finding out

the effect of the order of termination, the concept of

"motive" and "foundation" has to be kept in mind. It was

further observed that no strait-jacket test can be laid down

to distinguish the two, namely, the `motive' and the

`foundation'. Whether motive has become the foundation has

to be decided by the Court with reference to the facts of a

given case. It was also observed that `motive' and

`foundation' are certainly two points of one line -

ordinarily apart but when they come together, `motive' gets

transformed and merged into `foundation'. It was also

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observed that since in regard to a temporary employee or an

officiating employee an assessment of the service is

necessary, merely because the Authority proceeds to make an

assessment and records its views, it would not be available

to be utilised to make the order of termination, following

such assessment, punitive in character. It was observed by

this Court that in the relationship of master and servant

there is a moral obligation to act fairly. There should be

an assessment of the work of the employee and if any defect

is noted in his working, the employee should be made aware

of the defect in his work and deficiency in his performance.

Defects or deficiency, indifference or indiscretion may be

with the employee by inadvertance and not by incapacity to

work. Timely communication of the assessment of work in

such cases may put the employee on the right track. Without

any such communication, it was observed, it would be

arbitrary to give a movement order to the employee on the

ground of unsuitability. In State of U.P. vs. Kaushal

Kishore Shukla (1991) 1 SCC 691 = 1991 (1) SCR 29, which has

been relied upon by the High Court in the impugned judgment,

it was held that merely because a preliminary enquiry was

held against a temporary Govt. servant, would not be a

ground to hold that an order, otherwise innocuous on the

face of it, by which the services were terminated, was

punitive in nature. The decision in Nepal Singh vs. State

of U.P. (1985) 1 SCC 56 = 1985 (2) SCR 1 = AIR 1985 SC 84

was held to be per incuriam as in that case, Champaklal's

case (supra) was not considered, but the Court did observe

that if on an overall assessment of the work and conduct of

the employee the authority competent in that behalf to

terminate the service, is satisfied that on account of the

employee's general unsuitability and inefficiency or

misconduct it would not be in the public interest to retain

him in service, it may either terminate the services by an

innocuous order or may proceed to take punitive action by

holding a regular departmental enquiry. The Court, however,

emphasised that the termination has to be in accordance with

the terms and conditions of service regulated by relevant

rules. In Radhey Shyam Gupta vs. U.P. State Agro

Industries Corporation Ltd. & Anr. JT 1998 (8) SC 585 =

(1999) 2 SCC 21, which related to a probationer, the whole

legal position was reviewed by Brother M. Jagannadha Rao,

J., in an illuminating and research- oriented judgment and

after considering various decisions including the decision

in Kaushal Kishore Shukla's case (supra) and a still later

decision in Commissioner of Food & Civil Supplies, Lucknow,

U.P. vs. Prakash Chandra Saxena (1994) 5 SCC 177 = 1994

(3) Scale 12, so as to trace the development of law relating

to this aspect of service jurisprudence, laid down that

there has not been any conflict of opinion inter se various

judgments including those laying down the "Motive" and

"Foundation" theory. It was held that the question whether

the order by which the services were terminated was

innocuous or punitive in nature had to be decided on the

facts of each case after considering the relevant facts in

the light of the surrounding circumstances. Benefit and

protection of Article 311(2) of the Constitution is

available not only to temporary servants but also to a

probationer and the court in an appropriate case would be

justified in lifting the veil to find out the true nature of

the order by which the services were terminated. The whole

case law is thus based on the peculiar facts of each

individual case and it is wrong to say that decisions have

been swinging like a pendulam; right, the order is valid;

left, the order is punitive. It was urged before this

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Court, more than once including in Ram Chandra Trivedi's

case (supra) that there was a conflict of decisions on the

question of order being a simple termination order or a

punitive order, but every time the Court rejected the

contention and held that the apparent conflict was on

account of different facts of different cases requiring the

principles already laid down by this Court in various

decisions to be applied to a different situation. But the

concept of "motive" and "foundation" was always kept in

view. 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 service 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".

"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. Applying these principles to the facts of the

present case, it will be noticed that 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

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performance of the appellant throughout was unblemished, the

order was definitely punitive in character as it was founded

on the allegations of misconduct. There is another aspect

of the matter. Para 541 of the U.P. Police Regulations

provides as under : "541. (1) Recruits will be on

probation for a period of two years, except that -- (a)

those recruited directly in the Criminal Investigation

Department or District Intelligence Staff will be on

probation for three years, and (b) those transferred to the

Mounted Police will be governed by the directions contained

in paragraph 84 of the Police Regulations. If during the

period of probation their conduct and work have been

satisfactory and they are approved by the Deputy Inspector

General of Police at the end of the period of probation for

service in the force the Superintendent of Police will

confirm them in their appointment. (2) In any case in which

either during or at the end of the period of probation, the

Superintendent of Police is of opinion that a recruit is

unlikely to make a good police officer he may dispense with

his services. Before, however, this is done the recruit

must be supplied with specific complaints and grounds on

which it is proposed to discharge him and then he should be

called upon to show cause as to why he should not be

discharged. The recruit must furnish his representation in

writing and it will be duly considered by the Superintendent

of Police before passing the orders of discharge. (3) Every

order passed by a Superintendent under sub-paragraph (2)

above shall, subject to the control of the Deputy Inspector

General, be final." Where, therefore, the services of a

probationer are proposed to be terminated and a particular

procedure is prescribed by the Regulations for that purpose,

then the termination has to be brought about in that manner.

The probationer-constable has to be informed of the grounds

on which his services are proposed to be terminated and he

is required to explain his position. The reply is to be

considered by the Superintendent of Police so that if the

reply is found to be convincing, he may not be deprived of

his services. If this procedure is followed and the

services are terminated thereafter, it would not amount to a

punitive action. The rule being mandatory in nature,

compliance thereof would not alter the nature of the order

passed against the probationer. This aspect was considered

by this Court in two decisions, namely, The State of Orissa

& Anr. vs. Ram Narayan Das (1961) 1 SCR 606 (supra) and

Ranendra Chandra Banerjee vs. Union of India (1964) 2 SCR

135 (supra) in terms of Rule 55-B of the Civil Services

(Classification, Control & Appeal) Rules, which, in all

respects, is akin to Para 541 of the U.P. Police

Regulations quoted above. Relevant portion of Rule 55-B

which was extracted in the case of State of Orissa & Anr.

vs. Ram Narayan Das (supra) is quoted below : "Where it is

proposed to terminate the employment of a probationer,

whether during or at the end of the period of probation, for

any specific fault or on account of his unsuitability for

the service, the probationer shall be apprised of the

grounds of such proposal and given an opportunity to show

cause against it, before orders are passed by the authority

competent to terminate the employment." Immediately after

quoting the Rule, the Court observed: "Notice to show cause

whether the employment of the respondent should be

terminated was, by Rule 55 B made obligatory." The Court,

after considering that the State had complied with the

requirements of Rule 55-B came to the conclusion that the

order of termination of services of the probationer was not

punitive in nature. In Ranendra Chandra Banerjee vs. Union

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of India (supra), the Court, while considering the

provisions of Rule 55-B, observed as under : "Therefore in

a case covered by r.55-B all that is required is that the

defects noticed in the work which make a probationer

unsuitable for retention in the service should be pointed

out to him and he should be given an opportunity to show

cause against the notice, enabling him to give an

explanation as to the faults pointed out to him and show any

reason why the proposal to terminate his services because of

his unsuitability should not be given effect to. If such an

opportunity is given to a probationer and his explanation in

reply thereto is given due consideration, there is in our

opinion sufficient compliance of r.55-B. Generally speaking

the purpose of a notice under r.55-B is to ascertain, after

considering the explanation which a probationer may give,

whether he should be retained or not and in such a case it

would be sufficient compliance with that rule if the grounds

on which the probationer is considered unsuitable for

retention are communicated to him and any explanation given

by him with respect to those ground is duly considered

before an order is passed." ( Emphasis supplied ) In two

other cases, namely, State of Bihar vs. Gopi Kishore Prasad

(supra) and Samsher Singh vs. State of Punjab (supra), the

question of termination of services of a probationer was

considered and it was laid down that the form of the order

was not conclusive and the court could go behind the order

to find out the real foundation of that order. Radhey Shyam

Gupta vs. U.P. State Agro Industries Corporation Ltd. &

Anr. JT 1998 (8) SC 585, which has been decided by Brother

Jagannadha Rao, J., was also a case where the services of a

probationer were terminated. As we have already seen above,

there has been total non-compliance with the provisions of

Para 541 of the U.P. Police Regulations and services of the

appellant were terminated without ever issuing him any

notice intimating the grounds on which his services were

proposed to be terminated nor was his explanation ever

obtained. The services were terminated because he was found

involved in a quarrel between two other Police Constables.

For the reasons stated above, the appeal is allowed, the

impugned judgment passed by the High Court is set aside and

that of the U.P. Public Services Tribunal is restored, but

without any order as to costs.