ANOOP JAISWAL versus GOVERNMENT OF INDIA & ANR.

Citation: [1984] 2 S.C.R. 453 · Decided: 24-01-1984 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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453 
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ANOOP JAISWAL 
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GOVERNMENT OF INDIA & ANR . 
Jani;pry 24, 1984 · 
{ E. S. VBNKATARAMIAR AND R .. B. MISRA, .JJ) 
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Constitution of India-Art. 311 (2)-.-Applicability of. Protectton . under Art. 
311 (2) available if the order of dischcirge is JOund to be by ·way of .1untshment. 
To. see whether an "order of discharge is,by way of pllnishment,form oftheorde;ti 
irot decisil'~. Court must g~ behilid the form and ascertain the tru~ character of 
the order. 
The appellant who had been selected for appOintment in the"' Indian Police 
Service was undergoing training'lfis probationer in the National __ Police Ac~demy. 
On June 22, 1981 due. to rain the appellant as well .other probationers reached 
late by a few minutes 3.t the _·changed venue for· conducting :P. T. For this delay 
explantion was cal.led from all the probationers. In his explanation the appellant 
sincerely regretted the lapse. The ap~~lant was" considered to be·one of- the 
ring-leaders. ~who was res~onsible for the delay. The Director of ~the Ac3.derny 
wiihout holding ·an enquiry into the alleged misconduct recommended to the 
Government that the appellant should be discharged from service. On the basis 
of that iecommendation the- Government by its order dated November Q, 1981 
discharged the appellant from service. The Government rejeCted· the appellant's 
repiesent~tion against the order discharging him. The appellant ·challenged the 
vaiidity of the ·order under Aft. 226 of the Constitution. 
The High Court 
dismissed the petiti0n at the·admis.sion sta_gc. Hence this appeal. The appeUa~t 
contend.ed that the order discharging him wa~ in reality an' order terminating "his 
services on the ground of rilisconduct and f'S415uch could ·not ·have been passed 
without Holding an enquiry as contemplated under Art 311 (2) of the Constitution 
and. the relevant rules governing such an enquiry. 
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Allowing the appeal .. 
HELD : The impllgned order of discharge is set aside . 
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Where ·uie form of the order i_s mere_Iy a cam<;iufiage for an order of dismissal 
for misco_nduct ~t is always _open to the Court before which the order js challenged 
to go behind the fo~ and_ascertain t_he true character of the order .. If the Court 
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. holds. t~at the .order -though in_ the_ form is merely a determination of employ~ 
ment is in reality a cloak for an order of punishment, the Court ·would not be 
debarred, merely b~ause of the form·of the order, in giving effect to the rights' 
<Wnferred by law upon the employee. [563 E-F] 
Parshotam Lai Dhingra v. Union of India, [1958] · S. C. R. 828; Shl/msher 
ff 
.Singh & Anr. v. State oj'Punjab, [1975] I S. C, R. 814; State of Punjab & Anr. 
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454 
. SUPREME COURT REPORTS 
f!984] 2 S.C.R .. 
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v. Shri Silkh Raj Bahadur, · (1969] 3 S.C.C:. 603;· Stale of Bihar & Ors. 'v. ·Shiva 
.· Bhikshuk Mishra, (1971] 2 S. C.R. 191; R.S. Sia/ v . .The.State of U. p, & Ors., 
. [197.4p S. C. R. 754; State .of U.P. v; Ram Chandra· Trivedi, [1977] 1 ·s. C. R .. 
462; and I. N. Sakseno v. 
State of Madhya Pradesh; [1967] 2 S. C. R. 496;. 
referred to. · 
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In the instarit case, on. gOing· through the rccQrd· ·and taking. intojaccount 
all the attendant 'circumstances the Court, "is_ satisfied that the __ alleged l'ct of mis-. 
condl.!:ct On JunC 22, 1981 Was· t.he : real f0und-ation for the· action taken. against 
the aPPellant.-:lnd _that the othei- iristances stated .in the· course of the co~nter 
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affl.9.avit 
~re mere allegations which ar~ put forward orily for purposes of 
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strengtti~ning the· defcllce which ·is otheiwise ve'rY weak.· The case is one which 
attracted ArtiC1e··311 (2) of ·the.Constitution ·as ··the. iffipug·nCd order amounts tp 
a tefmination of se.rvice by. way Of punish1nent anct·an eilquiry should have been 
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held in accordariCe with-the -said· Constitutional provision. 
That admittt:dlY. 
havirtg hot ~~n·.d.one, tfie .imp~gned. o.rd_er is liable. to _be Struck dowq. ,[4~5 B·C] 
C1VIL APPELLATE Jrni.iS;ICTION : Civil Appeal No. 3040 of 1982 . 
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Appoal by Spo.cia] leave from the Judgtnent and Order dated 
the 30th August, 1982 of the Delhi High Court in Writ Petition No. 
1580 of l 982j. 
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K.N. Bbatt for the Appellant. 
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M.S. Gujra/ and G.S. Narain for the Respondent . 
.The Judgment of the Court was delivered by : 
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VENKATARAMIAH, J. 
June 22, 1981 was really a bad day f°' the 
. app~lla

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