Hemlata Mandloi (Smt.) Vs. State of Madhya Pradesh and ors. - Court Judgment

Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - the respondents have enclosed a letter of the commissioner, gwalior division, gwalior dated 19th january, 2007 which is on record as annexure r-l, wherein it has been stated by the commissioner, gwalior division, gwalior that the petitioner has entered into a love marriage and is unauthorisedly absent from duty with effect from 26th december, 2006 and her father has lodged a first information report against the petitioner in respect of missing person and, therefore, the same amounts to misconduct. the collector, district guna in his letter dated 11th january, 2007 (annexure r-2) has besides referring to the earlier absence of the petitioner has recommended for termination of the service of the petitioner and also made comments about the inter-caste marriage of the petitioner. this court is of the considered opinion that there is enough material on record including the note-sheets and the commissioner, gwalior division, gwalior has recommended for imposition of major penalty against the petitioner on account of the fact that she has entered into an inter-caste marriage. the caste system is a curse on the nation and the sooner it is destroyed the better. 32. the position is now well-settled on a conspectus of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. , the attending circumstances as well as the basis of the order that have to be taken into consideration. in the instant case, we have already referred to as well as quoted the relevant portions of the averments made on behalf of the state respondent in their several affidavits alleging serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners, which were taken into consideration by the departmental selection committee without giving them any opportunity of hearing and without following the procedure provided in article 311(2) of the constitution of india, while considering the fitness and suitability of the appellants for the purpose of regularising their services in accordance with the government circular made in october, 1980. thus, the impugned orders terminating the services of the appellants on the ground that 'the posts are no longer required' are made by way of punishment. there is no doubt the impugned order casts a stigma on the service career of the petitioner and other order being made by way of punishment, the petitioner is entitled to the protection afforded by the provisions of article 311(2) of the constitution as well as by the provisions of rule 16.24 (ix) (b) of the punjab police rules, 1934..12. in this context, it may be useful to refer to the decision rendered in the case of dipti prakash banerjee v. the purpose of the preliminary inquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. 3. the legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. it is pertinent to state herein that their lordships clearly stated that in the counter affidavit it was indicated about the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. a charge-sheet merely details the allegations so that the employee may deal with them effectively. if the form and language of the so called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. nepal singh unsuccessfully challenged the order of termination before the high court, but his appeal was allowed by a three judge bench of this court. firstly, it held that the order of termination was arbitrary, violative of articles 14 and 16 of the constitution as power of termination had not been exercised honestly, in good faith for valid considerations. only thereafter, he was discharged from service by reason of the impugned order dated 29-4-2003. if the satisfaction of the employer rested on the unsatisfactory performance on the part of the appellant, the matter might have been different but in that case, from the impugned order it is evident that it was not the unsatisfactory nature and character of his performance only which was taken into consideration but series of his acts as well misconduct on his part had also been taken into consideration therefor. the form of the order terminating the services coupled with the background facts clearly leads to the conclusion that the order impugned in the writ petition by the appellant was punitive.orders.c. sharma, j.1. the petitioner before this court has filed this present petition challenging the order dated 14th january, 2009 (annexure p-l) passed by the state government in exercise of the powers conferred under rule 8 (5) of the madhya pradesh civil services (general conditions of service) rules, 1961 (hereinafter referred to as 'the rules, 1961') terminating the services of the petitioner. the contention of the petitioner is that she is a member of the scheduled tribe and she was appointed by virtue of a process of selection conducted by the madhya pradesh public service commission for the post of chief executive officer, janpad panchayat. the petitioner in compliance to the appointment order dated 10th january, 2006 submitted her joining on 23rd january, 2006 at janpad panchayat, chachoda, district guna and thereafter started working as the chief executive officer, janpad panchayat, chachoda, district guna. the petitioner has further stated that the accountant of the janpad panchayat has committed certain irregularities and a charge-sheet was issued to the petitioner on 11th january, 2007 by the collector, guna. in the charge-sheet which is enclosed as annexure p-3, allegations were levelled against the petitioner that she has purchased certain material by not following the store purchase rules and, therefore, she has committed financial irregularities in the matter. the petitioner did submit a reply to the charge-sheet and the same is on record as annexure p-5. the petitioner has brought on record, a letter dated 15th january, 2009 (annexure p-6) wherein it has been certified that at the relevant point of time one dr. p.n. meena was working as the in-charge chief executive officer, who has purchased the material worth rs. 2.5 lacs on 28th april, 2006 and the petitioner has joined as the chief executive officer on 29th april, 2006. thus, it has been certified that at the relevant point of time when the material in question was purchased, the petitioner was not working as the chief executive officer. the further contention of the petitioner is that she is a member of the scheduled tribe and as she wanted to perform inter-caste marriage, she has submitted an application before the authorities dated 28-12-2006 (annexure p-11) informing them about the marriage (inter-caste marriage) and therefore, she was not present for performing her duties on 28th december, 2006. the petitioner has further stated that after marrying one awadesh kumar sharma, the petitioner has reported back for duty on 15th january, 2007, however, she was absent from duty with effect from 28th december, 2006. though the petitioner has informed the authorities about her inter-caste marriage, stern action has been taken against her and an order of dismissal from service has been passed vide impugned order dated 14th january, 2009 (annexure p-l). the contention of the petitioner is that she belongs to a tribal family, married out of caste and the same has been termed as a misconduct and she has been thrown out of service by invoking the provisions of rule 8 of the rules of 1961.2. the respondents have filed a reply and it has been stated in the reply that the petitioner was on probation and the period of probation came to an end with effect from 10th january, 2006, however, the period of probation was extended by an order dated 21st january, 2008 and, therefore, the petitioner continued on probation. the contention of the respondents is that the power conferred under rule 8 of the rules, 1961 has rightly been exercised and they have discontinued the petitioner from service as she was not discharging the duties properly. the respondents have enclosed a letter of the commissioner, gwalior division, gwalior dated 19th january, 2007 which is on record as annexure r-l, wherein it has been stated by the commissioner, gwalior division, gwalior that the petitioner has entered into a love marriage and is unauthorisedly absent from duty with effect from 26th december, 2006 and her father has lodged a first information report against the petitioner in respect of missing person and, therefore, the same amounts to misconduct. the learned commissioner has gone to the extent of observing that the inter-caste marriage of the petitioner has tarnished the image of the state government. the collector, district guna in his letter dated 11th january, 2007 (annexure r-2) has besides referring to the earlier absence of the petitioner has recommended for termination of the service of the petitioner and also made comments about the inter-caste marriage of the petitioner. the chief executive officer, janpad panchayat, district panchayat guna in the letter dated 3rd january, 2007, which is enclosed as annexure r-3 has categorically admitted that he was informed by inland letter about the marriage by the petitioner. it has been stated in the aforesaid letter dated 3rd january, 2007 that the petitioner was absent from duty with effect from 28th december, 2006 to 15th january, 2007 and the information was given to the authorities regarding her inter-caste marriage. the respondents have again enclosed a letter of dr. komal singh, commissioner, gwalior division, gwalior dated 14th november, 2007 which is enclosed as annexure r-5 wherein it has been reiterated that the petitioner has left with some other person and a report has been lodged by her father and conduct of the petitioner tarnishes the image of the state government. the commissioner has also observed that the conduct of the petitioner amounts to misconduct involving moral turpitude. not only this, annexure r-7 is a note-sheet wherein it has been observed to conclude the departmental enquiry pending against the petitioner before expiry of the period of probation and finally the note-sheet reflects that the service of the petitioner should be put to an end. in the last line an observation was made that the commissioner, gwalior division, gwalior and the learned commissioner has observed that the misconduct of the petitioner involves moral turpitude.3. the petitioner has filed an application for taking the additional facts and the documents on record. the petitioner has enclosed a letter of the deputy secretary, panchayat and village development department, state government dated 16th september, 2008 (annexure p-13) addressed to the commissioner, gwalior division, gwalior wherein it has been informed that the petitioner's conduct of marrying inter-caste does not amount to the misconduct and merely because a first information report has been lodged by her father, the services of the petitioner cannot be terminated or action cannot be taken against the petitioner in the matter. the deputy commissioner, office of development commissioner, state of madhya pradesh vide letter dated 9th october, 2007 has observed that the departmental enquiry pending against the petitioner should be concluded in the matter. however, the fact remains that the petitioner's services have been put to an end taking into account her inter-caste marriage. this court is of the considered opinion that there is enough material on record including the note-sheets and the commissioner, gwalior division, gwalior has recommended for imposition of major penalty against the petitioner on account of the fact that she has entered into an inter-caste marriage. in the present case, the petitioner belongs to the scheduled tribe and married a person belonging to the general category. merely because, the father of the petitioner has lodged a first information report against the petitioner that does not mean that the petitioner has committed any misconduct in the matter.4. the hon'ble apex court in the case of lata singh v. state of u.p. and anr. : (2006) 5 scc 475, in paragraphs 16,17 and 18 has held as under:the caste system is a curse on the nation and the sooner it is destroyed the better. in fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. however, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. in our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. this is a free and democratic country, and once a person become a major he or she can marry whosoever he/she likes. if the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. we, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.we sometimes hear of 'honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. there is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. only in this way can we stamp out such acts of barbarism.in the circumstances, the writ petition is allowed. the proceedings in sessions trial no. 1201/2001 titled state of m.p. v. sangita gupta and ors. arising out of fir no. 336/2000 registered at police station sarojini nagar, lucknow and pending in the fast track court v, lucknow are quashed. the warrants against the accused are also quashed. the police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner's husband are harassed or threatened nor any acts of violence are committed against them. if anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.5. the hon'ble apex court in the aforesaid case has held that our country is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. it has been further observed that if the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.6. the petitioner before this court has been terminated from the service in exercise of the powers conferred under rule 8 (5) of the rules, 1961 and it has been argued by the learned counsel for the petitioner that the order passed by the respondents is a punitive one though it has been couched in innocuous language. in the present case, the order has been passed under rule 8 of the rules and the factum of applicability of the rule is not the sole and exclusive governing factor, more so, when the petitioner has made allegations with regard to arbitrary and malafide exercise of power and, therefore, it is a fit case for peeping through or lifting the veil to find out the real nature and character of the order. it has also been argued by the learned counsel for the petitioner that the allegations made in the counter affidavit read with the impugned termination constitutes the 'foundation' for passing of the order and not the motive.7. a seven judge bench of the hon'ble apex court in the case of samsher singh v. state of punjab : air 1974 sc 423, has made a clear distinction between the two terms 'motive' and 'foundation' and came to hold that the form of the order is not conclusive and innocuously worded order can be passed on a foundation of grave charges.8. in the case of state of u.p. v. ramchandra trivedi : air 1976 sc 2547, it was held by the hon'ble apex court that the motive in passing an order of termination is not a relevant factor. what is determinative is the foundation on which it is based.9. in the case of jarnail singh and ors. v. state of punjab and ors. : air 1986 sc 1626, a two judge bench of the apex court in paragraph 32 has held as under:32. the position is now well-settled on a conspectus of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. it is the substance of the order, i.e., the attending circumstances as well as the basis of the order that have to be taken into consideration. in other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. in other words, the court, in such case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not. in the instant case, we have already referred to as well as quoted the relevant portions of the averments made on behalf of the state respondent in their several affidavits alleging serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners, which were taken into consideration by the departmental selection committee without giving them any opportunity of hearing and without following the procedure provided in article 311(2) of the constitution of india, while considering the fitness and suitability of the appellants for the purpose of regularising their services in accordance with the government circular made in october, 1980. thus, the impugned orders terminating the services of the appellants on the ground that 'the posts are no longer required' are made by way of punishment.10. in the case of smt. rajendra kaur v. punjab state and anr. : air 1986 sc 1790, their lordships of the apex court referred to the decisions rendered in the cases of shamsher singh (supra) and anoop jaiswal v. government of india (1984) 2 scc 636, and came to hold that the impugned order of discharge though couched in innocuous terms, is merely a camouflage for an order of misconduct. it is pertinent to state here that in paragraph 6 of the judgment their lordships referred to the paragraph 15 of the counter affidavit sworn to on behalf of the respondents therein wherein it had been stated that the superintendent of police, hoshiarpur got conducted a confidential enquiry through a deputy superintendent of police regarding the conduct of the appellant. on an overall assessment of the work and conduct of the appellant the superintendent of police hoshiarpur came to the conclusion that she was not likely to become an efficient police officer and passed an order discharging her from the services in accordance with conditions of service. averments made in paragraph 15 of the counter affidavit had been verified to be true and correct to the knowledge of the deponent bases upon the information derived from the record of the case. after so noting their lordships observed that it was clear from the said averments that the impugned order of discharge though stated to be made in accordance with the provisions of rule 12.21 of the punjab police rules, 1934 was really made on the basis of the misconduct as found on enquiry into the allegation behind her back by the deputy superintendent of police. their lordships pierced through the veil to find out the background. it was crystal clear that the impugned order of discharge from the service was made on the ground of her misconduct and it was punitive in nature as did it cast a stigma in her service career.11. in the case of hardeep singh v. state of haryana (1989) 4 s.l.r. 576, their lordships expressed the view as under:in the instant case, it is clear and evident from the averments made in paragraph 3, sub-paras (i) and (iii) and paragraph (v) of the counter affidavit that the impugned order of removal/dismissal from service was in substance and in effect an order made by way of punishment after considering the service conduct of petitioner. there is no doubt the impugned order casts a stigma on the service career of the petitioner and other order being made by way of punishment, the petitioner is entitled to the protection afforded by the provisions of article 311(2) of the constitution as well as by the provisions of rule 16.24 (ix) (b) of the punjab police rules, 1934....12. in this context, it may be useful to refer to the decision rendered in the case of dipti prakash banerjee v. satvendra nath bose national centre for basic sciences, calcutta and ors. : air 1999 sc 983, wherein it has been held as under:the above decision is, in our view, clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. obviously such a document could be asked for or called for by any future employer of the probationer. in such a case, the order of termination would stand vitiated on the ground that no regular inquiry was conducted.13. in this regard, it may be usefully referred to the decision rendered in the case of radhey shyam gupta v. u.p. industries agro : (1999) 2 scc 21, wherein it has been held as under:33. it will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. the reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by shah, j. (as he then was) in ram narayan das's case. it is done only with a view to decide whether he is to be retained or contained in service. the position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. it has been so decided in champaklal. the purpose of the preliminary inquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. even in a case where a regular departmental inquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. that is what is held in sukh raj bahadur's case and in benjamin's case. in the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. in all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by krishna iyer, j. in gujarat steel tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. in fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. the above are all examples where the allegations whose truth has not been found, and were merely the motive.34. but in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive 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 will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. in such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. these are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the inquiry officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. that is why the misconduct is the foundation and not merely the motive, in such case.14. in the case of chandra prakash shai v. state of u.p. and ors. : (2000) 5 scc 152, the apex court after referring to the decisions in the field came to hold as under:28. 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'.29. 'motive' is the moving power which implies 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 implied 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.15. in the case of a.p. state federation of coop. spinning mills ltd. and anr. v. p.v. swaminathan : (2001) 10 scc 83, a two-judge bench referred to the decisions rendered in the case of state of u.p. v. kaushal kishore shukla : (1991) 1 scc 691 and indra kumar chopra v. pradeshik coop. dairy federation ltd. : (1992) 4 scc 17 and other decisions in the field and eventually in para 3 expressed the view as under:3. the legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the court. but the court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order or termination or formed the foundation for the same order. if the court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. the decisions of this court relied upon by mr. k. ram kumar also stipulate that if an allegation of arbitrariness is made in assailing an order of termination. it will be open for the employer to indicate how and what was the motive for passing the order of termination and it is in that sense in the counter-affidavit it can be indicated that the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. but on examining the assertions made in paras 13 and 14 of the counter-affidavit, in the present case it would be difficult for us to hold that in the case in hand, the appellant-employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question.it is pertinent to state herein that their lordships clearly stated that in the counter affidavit it was indicated about the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. their lordships also took note of paragraphs 13 and 14 of the counter-affidavit to arrive at the conclusion on that it would be difficult to hold that the employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question.16. in the case of pavanendra narayan verma, appellant v. sanjay gandhi p.g. i of medical sciences and anr. : (2002) 1 scc 520, a two-judges bench of the apex court after referring to certain decisions in the field in paragraphs 28 and 32 expressed the view as under:28. therefore, whenever a probationer challenges his termination, the court's first task will be to apply the test of stigma or the 'form' test. if the order survives this examination, the 'substance' of the termination will have to be found out. *** *** ***32. we are also not prepared to hold that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. an employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. a charge-sheet merely details the allegations so that the employee may deal with them effectively. the enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. none of the three factors catalogued above for holding that the termination was in substance, punitive exist here. eventually in paragraph 35 their lordships expressed the view in the following terms:equally an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. this is also what was held in state of uttar pradesh v. kaushal kumar shukla: (scc p. 705, para 13)the allegations made against the respondent contained in the counter affidavit by way of a defence filed on behalf of the appellants, also do not change the nature and character of the order of termination.17. in this context it may be profitably referred to the decision rendered in the case of mathew p. thomas v. kerala state civil supply corpn. ltd. and ors. : jt 2003 (2) sc 162, wherein the apex court in paragraph 12 expressed the view as under:12. from long line of decisions it appears to us whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. it may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. if the form and language of the so called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. in cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. in other words, the facade of the termination order may be simpliciter but the real face behind it is to get rid of services of a probationer on the basis of misconduct. in such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. in that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct.18. in another recent decision rendered in the case of union of india and ors. v. a.p. bajpai and ors. 2003 air scw 399, in paragraph 7, their lordships expressed the view as under:7. the grounds stated in the counter-affidavit filed by the appellant in answer to the challenge made by the respondent no. 1 in the o.a. before the tribunal were only the basis to assess the unsuitability of the respondent no. 1 to continue in the sensitive post for which he was appointed. it may be added that annexure c-3 on which the tribunal heavily relied to say that the impugned order was stigmatic was an annexure to the counter filed by the appellants. it was a confidential letter written by the assistant director of the department. in our view, the tribunal committed a serious error in law and on facts of the present case in concluding that the order of termination of services of the respondent no. 1 involved stigma attached to respondent no. 1. the grounds stated in the counter-affidavit in answer to the challenge made by the respondent no. 1 were the factors to assess the suitability or otherwise of respondent no. 1 to continue in service. having regard to all relevant aspects, the authorities reached a conclusion that respondent no. 1 was not suitable to continue in service. the order of termination of his services was simpliciter without attaching any stigma to the conduct of respondent no. 1. in this view, the impugned order cannot be sustained. accordingly, it is set aside and the appeal is allowed. no costs.19. in this context, it is appropriate to refer to the decision rendered in the case of state of u.p. and anr. v. kaushal kishore shukla 1991 air scw 793. in the said case, their lordships referred to earlier decisions and took note of the fact that the competent authority has conducted a preliminary enquiry in regard to the allegations made pertaining to improper conduct of the employee but did not frame charges against him and no departmental enquiry was conducted. in that backdrop their lordships expressed the view that the employer never intended to dismiss the respondent from the service. holding of preliminary enquiry does not affect the nature of the termination order. in that context, their lordships expressed the view as under:11. learned counsel for the respondent placed reliance on the decisions of this court in nepal singh v. state of u.p. : (1985) 1 scc 56 : air 1985 sc 84 and ishwar chand jain v. high court of punjab & haryana : (1988) 3 scc 370 : air 1988 sc 1395, in support of his contention that the termination order is punitive in nature. in nepal singh case, a disciplinary enquiry was instituted against nepal singh who was a temporary sub-inspector of police, on the charge of having contracted a second marriage during the lifetime of his first wife without prior permission of the government in violation of rule 29 of the u.p. government servants' conduct rules, 1956. before any finding could be rendered the inquiry was dropped for want of territorial jurisdiction of the concerned superintendent of police, and thereafter, his services were terminated in accordance with the rules applicable to the temporary government servants by giving him one month's pay in lieu of notice. nepal singh unsuccessfully challenged the order of termination before the high court, but his appeal was allowed by a three judge bench of this court. this court quashed the order of termination on three grounds. firstly, it held that the order of termination was arbitrary, violative of articles 14 and 16 of the constitution as power of termination had not been exercised honestly, in good faith for valid considerations. secondly, the grounds mentioned in the report of the superintendent of police on the basis of which the services of the sub-inspector had been terminated were mere allegations and there was no definite material for terminating his services. thirdly, the court held that since the inquiry against nepal singh on the charges had been dropped for want of jurisdiction and since no attempt was made to institute a proper inquiry, instead his services were terminated on the allegation of misconduct the order of termination was violative of article 311(2) to the constitution. the court further held that the termination order had been passed to circumvent the constitutional provision of article 311(2) of the constitution. the facts and circumstances in nepal singh case were quite different than those in the instant case. however, nepal singh case is no authority for the proposition that the services of an ad hoc and temporary employee cannot be terminated even if the competent authority on an assessment of the work and the conduct of the employee finds him unsuitable for the service. the court's observations in nepal singh case that since the enquiry against nepal singh on certain charges was dropped and his services were terminated under the rules applicable to the temporary government servant with a view to circumvent the protection of article 311(2) of the constitution and as such the order of termination was illegal, must be confined to the facts of that case. it appears that the decisions in the cases of champaklal and r. c. lacy and the principles laid down therein were not brought to the notice of the bench. had those decisions been placed before the court, the finding that the termination order had been passed to . circumvent the provision of article 311(2) merely because departmental enquiry was dropped and the termination order had been passed, may not have been made. the decision of nepal singh case in this regard is per incuriam. in ishwar chand jain case, the order of termination of probationary judicial officer was set aside by this court on the ground that no relevant material had been taken into consideration in assessing the satisfactory nature of the work and conduct of the officer on probation. the court held that some of the material which had been taken into account in adjudging the judicial officer's work and conduct as unsatisfactory was not relevant. the decision has no relevance to the instant case. we are, therefore, of the opinion that neither of the two cases relied upon by the respondent lend any support to his case. on the other hand our view is fully supported by the decision of three judge bench of this court in r.k. misra v. u.p. state handloom corporation : (1988) 1 scr 501.20. in another recent decision rendered by the hon'ble apex court in the case of jaswant singh pratap singh jadeja v. rajkot municipal corporation and anr. (2007) 10 scc 71, has once again held that in order to find out whether an order is stigmatic/punitive or the same is termination simpliciter, the veil has to be lifted and in paragraphs 9, 10, 16 and 28, their lordships have expressed the view as under:the tests governing termination of probation are no longer res integra. when a disciplinary enquiry is initiated on the premise that there are serious allegations of misconduct on the part of the delinquent officer; his explanation thereupon had been rejected pursuant whereto a full-scale formal enquiry has been initiated culminating in a finding of guilt, the order terminating the service would be held to be stigmatic. there may also be cases where the allegations involved moral turpitude on the part of the delinquent officer. the language used in the order of termination of service may ex facie be stigmatic. the language used therein may also show that there was something over and above the assertion that the officer was found unsuitable for the job. the aforementioned tests, however, are not exhaustive.we may apply the said tests in the instant case. in the instant case, the language used in the impugned order is ex facie stigmatic. it referred to the earlier orders containing allegations of misconduct on the part of the appellant and the fact that he had been found guilty thereof. the appellant was said to have absented himself from duties. he had been found guilty of negligence, carelessness and showing absolute disregard towards his duties. a disciplinary proceedings was initiated therefor. his explanation to the show-cause notice was rejected. he was, therefore, found guilty of the charges levelled against him. only thereafter, he was discharged from service by reason of the impugned order dated 29-4-2003.if the satisfaction of the employer rested on the unsatisfactory performance on the part of the appellant, the matter might have been different but in that case, from the impugned order it is evident that it was not the unsatisfactory nature and character of his performance only which was taken into consideration but series of his acts as well misconduct on his part had also been taken into consideration therefor. it is one thing to say that he was found unsuitable for a job but it is another thing to say that he was said to have committed some misconduct.from the discussions made herein before, it is evident that termination of services of the appellant purporting to discharge him simpliciter cannot be accepted, being stigmatic in nature. the form of the order terminating the services coupled with the background facts clearly leads to the conclusion that the order impugned in the writ petition by the appellant was punitive.therefore, keeping in view the catena of judgments delivered by the hon'ble apex court, the veil has to be lifted in the present case.21. in the present case, the petitioner is a member of the scheduled tribe, a major person and has married to a major person who is of general category and therefore, at the behest of the father of the petitioner, she cannot be victimized by the state government. the impugned order passed by the respondent/state does not reflect that the service of the petitioner is being put to an end on account of her marriage. in the present case, the veil has to be lifted and from a perusal of the documents and the note-sheets available on record, it is certainly established that the services of the petitioner have been put to an end only because she has performed the inter-caste marriage. a first information report was lodged by her father and the same has been made as the basis for discontinuing the petitioner from service. it is true that the respondent/state has the power to pass an order under rule 8 of the rules, 1961 discontinuing the service of a probationer, however, keeping in view the peculiar facts and circumstances of the present case, the manner and the method in which the order has been passed by the respondents, it deserves to be set aside.22. in the present case, the petitioner who is a tribal girl, a major has married a non-tribal boy belonging to the general category and that too prior intimation was furnished to the higher authorities about her inter-caste marriage. the learned commissioner, gwalior division, gwalior has made a recommendation for her termination which is the basis for termination of the service of the petitioner by the respondent/state government.23. resultantly, the impugned order dated 14th january, 2009 (annexure p-l) is hereby set aside. the respondent/state is directed to regularise the period during which the petitioner was absent, i.e., with effect from 28th december, 2006 to 15th january, 2007 by passing the appropriate orders in accordance with law. the respondents are directed to reinstate the petitioner in service forthwith with all the consequential benefits including the back wages.24. petition stands allowed and disposed of with the aforesaid. no order as to cost.

Judgment:
ORDER

S.C. Sharma, J.

1. The petitioner before this Court has filed this present petition challenging the order dated 14th January, 2009 (Annexure P-l) passed by the State Government in exercise of the powers conferred under Rule 8 (5) of the Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961 (hereinafter referred to as 'the Rules, 1961') terminating the services of the petitioner. The contention of the petitioner is that she is a member of the Scheduled Tribe and she was appointed by virtue of a process of selection conducted by the Madhya Pradesh Public Service Commission for the post of Chief Executive Officer, Janpad Panchayat. The petitioner in compliance to the appointment order dated 10th January, 2006 submitted her joining on 23rd January, 2006 at Janpad Panchayat, Chachoda, District Guna and thereafter started working as the Chief Executive Officer, Janpad Panchayat, Chachoda, District Guna. The petitioner has further stated that the Accountant of the Janpad Panchayat has committed certain irregularities and a charge-sheet was issued to the petitioner on 11th January, 2007 by the Collector, Guna. In the charge-sheet which is enclosed as Annexure P-3, allegations were levelled against the petitioner that she has purchased certain material by not following the Store Purchase Rules and, therefore, she has committed financial irregularities in the matter. The petitioner did submit a reply to the charge-sheet and the same is on record as Annexure P-5. The petitioner has brought on record, a letter dated 15th January, 2009 (Annexure P-6) wherein it has been certified that at the relevant point of time one Dr. P.N. Meena was working as the In-charge Chief Executive Officer, who has purchased the material worth Rs. 2.5 lacs on 28th April, 2006 and the petitioner has joined as the Chief Executive Officer on 29th April, 2006. Thus, it has been certified that at the relevant point of time when the material in question was purchased, the petitioner was not working as the Chief Executive Officer. The further contention of the petitioner is that she is a member of the Scheduled Tribe and as she wanted to perform inter-caste marriage, she has submitted an application before the authorities dated 28-12-2006 (Annexure P-11) informing them about the marriage (inter-caste marriage) and therefore, she was not present for performing her duties on 28th December, 2006. The petitioner has further stated that after marrying one Awadesh Kumar Sharma, the petitioner has reported back for duty on 15th January, 2007, however, she was absent from duty with effect from 28th December, 2006. Though the petitioner has informed the authorities about her inter-caste marriage, stern action has been taken against her and an order of dismissal from service has been passed vide impugned order dated 14th January, 2009 (Annexure P-l). The contention of the petitioner is that she belongs to a tribal family, married out of caste and the same has been termed as a misconduct and she has been thrown out of service by invoking the provisions of Rule 8 of the Rules of 1961.

2. The respondents have filed a reply and it has been stated in the reply that the petitioner was on probation and the period of probation came to an end with effect from 10th January, 2006, however, the period of probation was extended by an order dated 21st January, 2008 and, therefore, the petitioner continued on probation. The contention of the respondents is that the power conferred under Rule 8 of the Rules, 1961 has rightly been exercised and they have discontinued the petitioner from service as she was not discharging the duties properly. The respondents have enclosed a letter of the Commissioner, Gwalior Division, Gwalior dated 19th January, 2007 which is on record as Annexure R-l, wherein it has been stated by the Commissioner, Gwalior Division, Gwalior that the petitioner has entered into a love marriage and is unauthorisedly absent from duty with effect from 26th December, 2006 and her father has lodged a First Information Report against the petitioner in respect of missing person and, therefore, the same amounts to misconduct. The learned Commissioner has gone to the extent of observing that the inter-caste marriage of the petitioner has tarnished the image of the State Government. The Collector, District Guna in his letter dated 11th January, 2007 (Annexure R-2) has besides referring to the earlier absence of the petitioner has recommended for termination of the service of the petitioner and also made comments about the inter-caste marriage of the petitioner. The Chief Executive Officer, Janpad Panchayat, District Panchayat Guna in the letter dated 3rd January, 2007, which is enclosed as Annexure R-3 has categorically admitted that he was informed by inland letter about the marriage by the petitioner. It has been stated in the aforesaid letter dated 3rd January, 2007 that the petitioner was absent from duty with effect from 28th December, 2006 to 15th January, 2007 and the information was given to the authorities regarding her inter-caste marriage. The respondents have again enclosed a letter of Dr. Komal Singh, Commissioner, Gwalior Division, Gwalior dated 14th November, 2007 which is enclosed as Annexure R-5 wherein it has been reiterated that the petitioner has left with some other person and a report has been lodged by her father and conduct of the petitioner tarnishes the image of the State Government. The Commissioner has also observed that the conduct of the petitioner amounts to misconduct involving moral turpitude. Not only this, Annexure R-7 is a note-sheet wherein it has been observed to conclude the Departmental Enquiry pending against the petitioner before expiry of the period of probation and finally the note-sheet reflects that the service of the petitioner should be put to an end. In the last line an observation was made that the Commissioner, Gwalior Division, Gwalior and the learned Commissioner has observed that the misconduct of the petitioner involves moral turpitude.

3. The petitioner has filed an application for taking the additional facts and the documents on record. The petitioner has enclosed a letter of the Deputy Secretary, Panchayat and Village Development Department, State Government dated 16th September, 2008 (Annexure P-13) addressed to the Commissioner, Gwalior Division, Gwalior wherein it has been informed that the petitioner's conduct of marrying inter-caste does not amount to the misconduct and merely because a First Information Report has been lodged by her father, the services of the petitioner cannot be terminated or action cannot be taken against the petitioner in the matter. The Deputy Commissioner, Office of Development Commissioner, State of Madhya Pradesh vide letter dated 9th October, 2007 has observed that the Departmental Enquiry pending against the petitioner should be concluded in the matter. However, the fact remains that the petitioner's services have been put to an end taking into account her inter-caste marriage. This Court is of the considered opinion that there is enough material on record including the note-sheets and the Commissioner, Gwalior Division, Gwalior has recommended for imposition of major penalty against the petitioner on account of the fact that she has entered into an inter-caste marriage. In the present case, the petitioner belongs to the Scheduled Tribe and married a person belonging to the general category. Merely because, the father of the petitioner has lodged a First Information Report against the petitioner that does not mean that the petitioner has committed any misconduct in the matter.

4. The Hon'ble Apex Court in the case of Lata Singh v. State of U.P. and Anr. : (2006) 5 SCC 475, in Paragraphs 16,17 and 18 has held as under:

The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person become a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.

We sometimes hear of 'honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.

In the circumstances, the writ petition is allowed. The proceedings in Sessions Trial No. 1201/2001 titled State of M.P. v. Sangita Gupta and Ors. arising out of FIR No. 336/2000 registered at Police Station Sarojini Nagar, Lucknow and pending in the Fast Track Court V, Lucknow are quashed. The warrants against the accused are also quashed. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner's husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.

5. The Hon'ble Apex Court in the aforesaid case has held that our country is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. It has been further observed that if the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.

6. The petitioner before this Court has been terminated from the service in exercise of the powers conferred under Rule 8 (5) of the Rules, 1961 and it has been argued by the learned Counsel for the petitioner that the order passed by the respondents is a punitive one though it has been couched in innocuous language. In the present case, the order has been passed under Rule 8 of the Rules and the factum of applicability of the rule is not the sole and exclusive governing factor, more so, when the petitioner has made allegations with regard to arbitrary and malafide exercise of power and, therefore, it is a fit case for peeping through or lifting the veil to find out the real nature and character of the order. It has also been argued by the learned Counsel for the petitioner that the allegations made in the counter affidavit read with the impugned termination constitutes the 'foundation' for passing of the order and not the motive.

7. A seven Judge Bench of the Hon'ble Apex Court in the case of Samsher Singh v. State of Punjab : AIR 1974 SC 423, has made a clear distinction between the two terms 'motive' and 'foundation' and came to hold that the form of the order is not conclusive and innocuously worded order can be passed on a foundation of grave charges.

8. In the case of State of U.P. v. Ramchandra Trivedi : AIR 1976 SC 2547, it was held by the Hon'ble Apex Court that the motive in passing an order of termination is not a relevant factor. What is determinative is the foundation on which it is based.

9. In the case of Jarnail Singh and Ors. v. State of Punjab and Ors. : AIR 1986 SC 1626, a two Judge Bench of the Apex Court in Paragraph 32 has held as under:

32. The position is now well-settled on a conspectus of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order, i.e., the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not. In the instant case, we have already referred to as well as quoted the relevant portions of the averments made on behalf of the State respondent in their several affidavits alleging serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners, which were taken into consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure provided in Article 311(2) of the Constitution of India, while considering the fitness and suitability of the appellants for the purpose of regularising their services in accordance with the Government Circular made in October, 1980. Thus, the impugned orders terminating the services of the appellants on the ground that 'the posts are no longer required' are made by way of punishment.

10. In the case of Smt. Rajendra Kaur v. Punjab State and Anr. : AIR 1986 SC 1790, Their Lordships of the Apex Court referred to the decisions rendered in the cases of Shamsher Singh (supra) and Anoop Jaiswal v. Government of India (1984) 2 SCC 636, and came to hold that the impugned order of discharge though couched in innocuous terms, is merely a camouflage for an order of misconduct. It is pertinent to state here that in Paragraph 6 of the judgment Their Lordships referred to the Paragraph 15 of the counter affidavit sworn to on behalf of the respondents therein wherein it had been stated that the Superintendent of Police, Hoshiarpur got conducted a confidential enquiry through a Deputy Superintendent of Police regarding the conduct of the appellant. On an overall assessment of the work and conduct of the appellant the Superintendent of Police Hoshiarpur came to the conclusion that she was not likely to become an efficient Police Officer and passed an order discharging her from the services in accordance with conditions of service. Averments made in Paragraph 15 of the counter affidavit had been verified to be true and correct to the knowledge of the deponent bases upon the information derived from the record of the case. After so noting Their Lordships observed that it was clear from the said averments that the impugned order of discharge though stated to be made in accordance with the provisions of Rule 12.21 of the Punjab Police Rules, 1934 was really made on the basis of the misconduct as found on enquiry into the allegation behind her back by the Deputy Superintendent of Police. Their Lordships pierced through the veil to find out the background. It was crystal clear that the impugned order of discharge from the service was made on the ground of her misconduct and it was punitive in nature as did it cast a stigma in her service career.

11. In the case of Hardeep Singh v. State of Haryana (1989) 4 S.L.R. 576, Their Lordships expressed the view as under:

In the instant case, it is clear and evident from the averments made in Paragraph 3, sub-paras (i) and (iii) and paragraph (v) of the counter affidavit that the impugned order of removal/dismissal from service was in substance and in effect an order made by way of punishment after considering the service conduct of petitioner. There is no doubt the impugned order casts a stigma on the service career of the petitioner and other order being made by way of punishment, the petitioner is entitled to the protection afforded by the provisions of Article 311(2) of the Constitution as well as by the provisions of Rule 16.24 (IX) (b) of the Punjab Police Rules, 1934....

12. In this context, it may be useful to refer to the decision rendered in the case of Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. : AIR 1999 SC 983, wherein it has been held as under:

The above decision is, in our view, clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its Annexures. Obviously such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular inquiry was conducted.

13. In this regard, it may be usefully referred to the decision rendered in the case of Radhey Shyam Gupta v. U.P. Industries Agro : (1999) 2 SCC 21, wherein it has been held as under:

33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as He then was) in Ram Narayan Das's case. It is done only with a view to decide whether he is to be retained or contained in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular Departmental Enquiry. It has been so decided in Champaklal. The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge-memo issued, reply obtained, and an Enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the Enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur's case and in Benjamin's case. In the latter case, the Departmental Enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.

34. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive 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 will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular Departmental Enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such case.

14. In the case of Chandra Prakash Shai v. State of U.P. and Ors. : (2000) 5 SCC 152, the Apex Court after referring to the decisions in the field came to hold as under:

28. 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'.

29. 'Motive' is the moving power which implies 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 implied 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.

15. In the case of A.P. State Federation of Coop. Spinning Mills Ltd. and Anr. v. P.V. Swaminathan : (2001) 10 SCC 83, a two-Judge Bench referred to the decisions rendered in the case of State of U.P. v. Kaushal Kishore Shukla : (1991) 1 SCC 691 and Indra Kumar Chopra v. Pradeshik Coop. Dairy Federation Ltd. : (1992) 4 SCC 17 and other decisions in the field and eventually in Para 3 expressed the view as under:

3. The legal position is fairly well settled that an order of termination of a temporary employee or a probationer or even a tenure employee, simpliciter without casting any stigma may not be interfered with by the Court. But the Court is not debarred from looking at the attendant circumstances, namely, the circumstances prior to the issuance of order of termination to find out whether the alleged inefficiency really was the motive for the order or termination or formed the foundation for the same order. If the Court comes to a conclusion that the order was, in fact, the motive, then obviously the order would not be interfered with, but if the Court comes to a conclusion that the so-called inefficiency was the real foundation for passing of order of termination, then obviously such an order would be held to be penal in nature and must be interfered with since the appropriate procedure has not been followed. The decisions of this Court relied upon by Mr. K. Ram Kumar also stipulate that if an allegation of arbitrariness is made in assailing an order of termination. It will be open for the employer to indicate how and what was the motive for passing the order of termination and it is in that sense in the counter-affidavit it can be indicated that the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. But on examining the assertions made in Paras 13 and 14 of the counter-affidavit, in the present case it would be difficult for us to hold that in the case in hand, the appellant-employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question.

It is pertinent to state herein that Their Lordships clearly stated that in the counter affidavit it was indicated about the unsuitability of the person was the reason for which the employer acted in accordance with the terms of employment and it never wanted to punish the employee. Their Lordships also took note of Paragraphs 13 and 14 of the counter-affidavit to arrive at the conclusion on that it would be difficult to hold that the employer really terminated the services in accordance with the terms of the employment and not by way of imposing the penalty in question.

16. In the case of Pavanendra Narayan Verma, Appellant v. Sanjay Gandhi P.G. I of Medical Sciences and Anr. : (2002) 1 SCC 520, a two-Judges Bench of the Apex Court after referring to certain decisions in the field in Paragraphs 28 and 32 expressed the view as under:

28. Therefore, whenever a probationer challenges his termination, the Court's first task will be to apply the test of stigma or the 'form' test. If the order survives this examination, the 'substance' of the termination will have to be found out.

*** *** ***32. We are also not prepared to hold that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post. None of the three factors catalogued above for holding that the termination was in substance, punitive exist here. Eventually in Paragraph 35 Their Lordships expressed the view in the following terms:

Equally an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is also what was held in State of Uttar Pradesh v. Kaushal Kumar Shukla: (SCC p. 705, Para 13)The allegations made against the respondent contained in the counter affidavit by way of a defence filed on behalf of the appellants, also do not change the nature and character of the order of termination.

17. In this context it may be profitably referred to the decision rendered in the case of Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd. and Ors. : JT 2003 (2) SC 162, wherein the Apex Court in Paragraph 12 expressed the view as under:

12. From long line of decisions it appears to us whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so called order of termination simpliciter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter but the real face behind it is to get rid of services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct.

18. In another recent decision rendered in the case of Union of India and Ors. v. A.P. Bajpai and Ors. 2003 AIR SCW 399, in Paragraph 7, Their Lordships expressed the view as under:

7. The grounds stated in the counter-affidavit filed by the appellant in answer to the challenge made by the respondent No. 1 in the O.A. before the Tribunal were only the basis to assess the unsuitability of the respondent No. 1 to continue in the sensitive post for which he was appointed. It may be added that Annexure C-3 on which the Tribunal heavily relied to say that the impugned order was stigmatic was an annexure to the counter filed by the appellants. It was a confidential letter written by the Assistant Director of the Department. In our view, the Tribunal committed a serious error in law and on facts of the present case in concluding that the order of termination of services of the respondent No. 1 involved stigma attached to respondent No. 1. The grounds stated in the counter-affidavit in answer to the challenge made by the respondent No. 1 were the factors to assess the suitability or otherwise of respondent No. 1 to continue in service. Having regard to all relevant aspects, the authorities reached a conclusion that respondent No. 1 was not suitable to continue in service. The order of termination of his services was simpliciter without attaching any stigma to the conduct of respondent No. 1. In this view, the impugned order cannot be sustained. Accordingly, it is set aside and the appeal is allowed. No costs.

19. In this context, it is appropriate to refer to the decision rendered in the case of State of U.P. and Anr. v. Kaushal Kishore Shukla 1991 AIR SCW 793. In the said case, Their Lordships referred to earlier decisions and took note of the fact that the Competent Authority has conducted a preliminary enquiry in regard to the allegations made pertaining to improper conduct of the employee but did not frame charges against him and no Departmental Enquiry was conducted. In that backdrop Their Lordships expressed the view that the employer never intended to dismiss the respondent from the service. Holding of preliminary enquiry does not affect the nature of the termination order. In that context, Their Lordships expressed the view as under:

11. Learned Counsel for the respondent placed reliance on the decisions of this Court in Nepal Singh v. State of U.P. : (1985) 1 SCC 56 : AIR 1985 SC 84 and Ishwar Chand Jain v. High Court of Punjab & Haryana : (1988) 3 SCC 370 : AIR 1988 SC 1395, in support of his contention that the termination order is punitive in nature. In Nepal Singh case, a disciplinary enquiry was instituted against Nepal Singh who was a temporary Sub-Inspector of Police, on the charge of having contracted a second marriage during the lifetime of his first wife without prior permission of the Government in violation of Rule 29 of the U.P. Government Servants' Conduct Rules, 1956. Before any finding could be rendered the inquiry was dropped for want of territorial jurisdiction of the concerned Superintendent of Police, and thereafter, his services were terminated in accordance with the rules applicable to the temporary Government servants by giving him one month's pay in lieu of notice. Nepal Singh unsuccessfully challenged the order of termination before the High Court, but his appeal was allowed by a three Judge Bench of this Court. This Court quashed the order of termination on three grounds. Firstly, it held that the order of termination was arbitrary, violative of Articles 14 and 16 of the Constitution as power of termination had not been exercised honestly, in good faith for valid considerations. Secondly, the grounds mentioned in the report of the Superintendent of Police on the basis of which the services of the Sub-Inspector had been terminated were mere allegations and there was no definite material for terminating his services. Thirdly, the Court held that since the inquiry against Nepal Singh on the charges had been dropped for want of jurisdiction and since no attempt was made to institute a proper inquiry, instead his services were terminated on the allegation of misconduct the order of termination was violative of Article 311(2) to the Constitution. The Court further held that the termination order had been passed to circumvent the constitutional provision of Article 311(2) of the Constitution. The facts and circumstances in Nepal Singh case were quite different than those in the instant case. However, Nepal Singh case is no authority for the proposition that the services of an ad hoc and temporary employee cannot be terminated even if the Competent Authority on an assessment of the work and the conduct of the employee finds him unsuitable for the service. The Court's observations in Nepal Singh case that since the enquiry against Nepal Singh on certain charges was dropped and his services were terminated under the rules applicable to the temporary Government Servant with a view to circumvent the protection of Article 311(2) of the Constitution and as such the order of termination was illegal, must be confined to the facts of that case. It appears that the decisions in the cases of Champaklal and R. C. Lacy and the principles laid down therein were not brought to the notice of the Bench. Had those decisions been placed before the Court, the finding that the termination order had been passed to . circumvent the provision of Article 311(2) merely because Departmental Enquiry was dropped and the termination order had been passed, may not have been made. The decision of Nepal Singh case in this regard is per incuriam. In Ishwar Chand Jain case, the order of termination of Probationary Judicial Officer was set aside by this Court on the ground that no relevant material had been taken into consideration in assessing the satisfactory nature of the work and conduct of the Officer on probation. The Court held that some of the material which had been taken into account in adjudging the Judicial Officer's work and conduct as unsatisfactory was not relevant. The decision has no relevance to the instant case. We are, therefore, of the opinion that neither of the two cases relied upon by the respondent lend any support to his case. On the other hand our view is fully supported by the decision of three Judge Bench of this Court in R.K. Misra v. U.P. State Handloom Corporation : (1988) 1 SCR 501.

20. In another recent decision rendered by the Hon'ble Apex Court in the case of Jaswant Singh Pratap Singh Jadeja v. Rajkot Municipal Corporation and Anr. (2007) 10 SCC 71, has once again held that in order to find out whether an order is stigmatic/punitive or the same is termination simpliciter, the veil has to be lifted and in Paragraphs 9, 10, 16 and 28, Their Lordships have expressed the view as under:

The tests governing termination of probation are no longer res integra. When a disciplinary enquiry is initiated on the premise that there are serious allegations of misconduct on the part of the delinquent officer; his explanation thereupon had been rejected pursuant whereto a full-scale formal enquiry has been initiated culminating in a finding of guilt, the order terminating the service would be held to be stigmatic. There may also be cases where the allegations involved moral turpitude on the part of the delinquent officer. The language used in the order of termination of service may ex facie be stigmatic. The language used therein may also show that there was something over and above the assertion that the officer was found unsuitable for the job. The aforementioned tests, however, are not exhaustive.

We may apply the said tests in the instant case. In the instant case, the language used in the impugned order is ex facie stigmatic. It referred to the earlier orders containing allegations of misconduct on the part of the appellant and the fact that he had been found guilty thereof. The appellant was said to have absented himself from duties. He had been found guilty of negligence, carelessness and showing absolute disregard towards his duties. A disciplinary proceedings was initiated therefor. His explanation to the show-cause notice was rejected. He was, therefore, found guilty of the charges levelled against him. Only thereafter, he was discharged from service by reason of the impugned order dated 29-4-2003.

If the satisfaction of the employer rested on the unsatisfactory performance on the part of the appellant, the matter might have been different but in that case, from the impugned order it is evident that it was not the unsatisfactory nature and character of his performance only which was taken into consideration but series of his acts as well misconduct on his part had also been taken into consideration therefor. It is one thing to say that he was found unsuitable for a job but it is another thing to say that he was said to have committed some misconduct.

From the discussions made herein before, it is evident that termination of services of the appellant purporting to discharge him simpliciter cannot be accepted, being stigmatic in nature. The form of the order terminating the services coupled with the background facts clearly leads to the conclusion that the order impugned in the writ petition by the appellant was punitive.

Therefore, keeping in view the catena of judgments delivered by the Hon'ble Apex Court, the veil has to be lifted in the present case.

21. In the present case, the petitioner is a member of the Scheduled Tribe, a major person and has married to a major person who is of general category and therefore, at the behest of the father of the petitioner, she cannot be victimized by the State Government. The impugned order passed by the respondent/State does not reflect that the service of the petitioner is being put to an end on account of her marriage. In the present case, the veil has to be lifted and from a perusal of the documents and the note-sheets available on record, it is certainly established that the services of the petitioner have been put to an end only because she has performed the inter-caste marriage. A First Information Report was lodged by her father and the same has been made as the basis for discontinuing the petitioner from service. It is true that the respondent/State has the power to pass an order under Rule 8 of the Rules, 1961 discontinuing the service of a probationer, however, keeping in view the peculiar facts and circumstances of the present case, the manner and the method in which the order has been passed by the respondents, it deserves to be set aside.

22. In the present case, the petitioner who is a tribal girl, a major has married a non-tribal boy belonging to the general category and that too prior intimation was furnished to the higher authorities about her inter-caste marriage. The learned Commissioner, Gwalior Division, Gwalior has made a recommendation for her termination which is the basis for termination of the service of the petitioner by the respondent/State Government.

23. Resultantly, the impugned order dated 14th January, 2009 (Annexure P-l) is hereby set aside. The respondent/State is directed to regularise the period during which the petitioner was absent, i.e., with effect from 28th December, 2006 to 15th January, 2007 by passing the appropriate orders in accordance with law. The respondents are directed to reinstate the petitioner in service forthwith with all the consequential benefits including the back wages.

24. Petition stands allowed and disposed of with the aforesaid. No order as to cost.