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2018 DIGILAW 1459 (ALL)

SANDEEP SINGH v. STATE OF U. P.

2018-07-03

RAJNISH KUMAR, SATYENDRA SINGH CHAUHAN

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JUDGMENT Hon’ble Satyendra Singh Chauhan, J.—Since common questions of law and fact are involved in all the writ petitions, therefore, they are being clubbed together and are being decided by a common judgment. 2. Heard Sri J.N. Mathur, learned Senior Advocate assisted by Sri Mudit Agarwal, Sri Kapil Dev, learned Senior Advocate assisted by Sri Ashwani Kumar, Sri Akhilesh Kalra and Sri Sandeep Dixit, appearing for the petitioners and Sri S.K. Kalia, learned Senior Advocate assisted by Sri U.N. Mishra and Sri Gaurav Mehrotra, learned counsel for the High Court as well as learned Standing Counsel for the State. 3. These writ petitions have been filed by various petitioners separately and jointly challenging the discharge orders dated 22.9.2014 and 15.6.2015 from the post of Munsif as a probationer under Rule 24(4) of U.P. Judicial Service Rules, 2001 (for short ‘’the Rules’) and in some of the writ petitions, order dated 19.9.2014 has also been challenged. 4. The facts of the present case are that the petitioners after qualifying the PCS(J) Examination in pursuance of the advertisement issued by the State of U.P. dated 10.5.2013, joined on the post of Civil Judge (Junior Division). They were posted in various districts in the State of U.P. and joined on different dates. They continued to perform their work and performance of the petitioners remained satisfactory and no adverse remark was ever given in respect of working and conduct of the petitioners and during their service, no adverse working or improvement memo or advise was ever given to the petitioners. As a consequence of appointment on the post of Civil Judge (Junior Division), an Induction Training Programme was conducted for the petitioners’ batch i.e. Civil Judge (Junior Division) Phase-II at JTRI, Lucknow during the period from 9.6.2014 to 8.9.2014. On the eve of last day of the training programme i.e. 7.9.2014, the petitioners went for dinner at Charan Club and Resort, Faizabad Road, Lucknow, where they took dinner and consumed liquor also. While they were taking their dinner, it appears that some heated arguments took place between Sri Akhilesh Kumar Sharma, Sri Asharam Pandey, Sri Ashwani Panwar, Sri Bhanu Pratap Singh and Sri Rahul Singh, which resulted in a scuffle between them, though on the next day, the said officers apologized to each other and the matter was settled amicably. 5. While they were taking their dinner, it appears that some heated arguments took place between Sri Akhilesh Kumar Sharma, Sri Asharam Pandey, Sri Ashwani Panwar, Sri Bhanu Pratap Singh and Sri Rahul Singh, which resulted in a scuffle between them, though on the next day, the said officers apologized to each other and the matter was settled amicably. 5. On behalf of some of the petitioners, it has been stated that they were not involved in any misbehaviour or any scuffle and some of them have stated that they are teetotaler and they do not consume liquor at all. The Registrar General of the High Court on 8.9.2014 received a telephonic information about the incident, which has taken place on 7.9.2014. After receiving the said information, the Registrar General put up a note before Hon’ble the then Chief Justice on 9.9.2014. Hon’ble the then Chief Justice called for a report in regard to the incident, which had taken place at Charan Club and Resort, Faizabad Road, Lucknow on 7.9.2014 and directed the Senior Registrar (Judicial) to visit the place of incident and submit a report. The Senior Registrar (Judicial) visited the place of incident and after collecting necessary information, submitted the enquiry report before Hon’ble the then Chief Justice on 12.9.2014. The report of the Senior Registrar (Judicial) was placed before the Administrative Committee of the High Court in its meeting held on 15.9.2014 and the Administrative Committee passed a resolution to place the matter before the Full Court. The agenda was prepared in respect of placing the matter before the Full Court. The matter was placed for consideration before the Full Court and Full Court after deliberation decided to discharge 11 officers from service by a simpliciter discharge order by placing reliance upon Rule 24(4) of the Rules. 6. Later on, one Hon’ble Judge of this Court wrote a letter dated 15.9.2014 indicating therein that the report submitted by the Senior Registrar (Judicial) is silent about the role of senior Judicial Officers at JTRI, Lucknow and their role in the incident is required to be inquired into so that future incidents may be prevented. 6. Later on, one Hon’ble Judge of this Court wrote a letter dated 15.9.2014 indicating therein that the report submitted by the Senior Registrar (Judicial) is silent about the role of senior Judicial Officers at JTRI, Lucknow and their role in the incident is required to be inquired into so that future incidents may be prevented. As a consequence of the letter of the Hon’ble Judge of this Court, a report was submitted by the Registrar General on 28.10.2014 before Hon’ble the then Chief Justice, who on 29.10.2014 passed an order for holding a vigilance enquiry against the role of senior Judicial Officers of JTRI, Lucknow and Sri S.K. Pachauri, OSD (Enquiries) was appointed as enquiry officer. Accordingly, more than hundred pages report was submitted by the OSD (Enquiries) by conducting a vigilance enquiry in the matter on 22.1.2015. It is in this report that the name of four additional officers also emerged on the basis of CCTV footage and at earlier point of time, involvement of these officers were not found by the Senior Registrar (Judicial) while making enquiry and the report was submitted against 11 officers only. The report of Sri S.K. Pachauri was placed before the Administrative Committee and the Administrative Committee passed a resolution on 5.2.2015 and on the basis of the said report, names of four additional officers were also taken into consideration and referred to the Full Court. The Full Court in its meeting dated 23.5.2015 proceeded to discharge the other four officers by a simpliciter order in pursuance of an incident, which has taken place on 7.9.2014. The orders of discharge has been challenged by way of present writ petitions. 7. Submission of learned counsel for the petitioners is that the simpliciter discharge order has been passed in pursuance of the enquiry report submitted by the Senior Registrar (Judicial) dated 12.9.2014. Submission is that the aforesaid report has been submitted in respect of an incident, which has taken place on 7.9.2014, in which, it is alleged that certain scuffle took place between the petitioners as a consequence of taking liquor at Charan Club and Resort, Faizabad Road, Lucknow and, therefore, the aforesaid incident amounts to misconduct as the petitioners have never been informed regarding any shortcoming in their work nor they have been advised to improve their working nor any adverse remark has been made against them in respect of their working. Submission is that the petitioners have been performing their duties successfully and without any complaint and their working was always appreciated but for the incident, which has taken place, in respect of which, an enquiry was got conducted and a report was also submitted on 12.9.2014. 8. Learned counsel for the petitioners also submit that the aforesaid report goes to indicate that the allegation of misconduct has been made against the petitioners and the petitioners have been alleged to have entered into brawl and on the basis of the said incident, the order of simpliciter discharge, terminating the services of the petitioners has been passed. Submission is that the enquiry was not made by the respondents in respect of suitability of the petitioners in the office of Civil Judge (Junior Division), rather the incident was inquired into and once the incident was inquired into and the complaint was to the effect that liquor has been taken by the petitioners and they have entered into scuffle, then the principles of natural justice could not have been violated and the petitioners’ services could not have been dispensed with by a simpliciter discharge order. Further submission of learned counsel for the petitioners is that it is not the motive on the basis of which, termination has followed, but it is the foundation on the basis of the alleged incident that termination order has been passed. 9. On behalf of the petitioners of Writ Petition Nos. 1356 of 2015 and 1357 of 2015, namely, Mukesh Kumar, Shobhit Sourav, Hirdesh Kumar and Himanshu Mishra, it has been submitted that their names did not appear initially in the enquiry report, which was conducted by the Senior Registrar (Judicial), but upon a letter being written by one Hon’ble Judge of this Court, a vigilance enquiry was instituted against the officers of JTRI, Lucknow and in the said report, names of these four officers came to light and there is no incriminating remark and neither any overt act against these officers. Only on the basis of CCTV footage, they have been identified and their names came in the later report and their services have been put to an end at later point of time by the High Court by a simpliciter discharge order. Only on the basis of CCTV footage, they have been identified and their names came in the later report and their services have been put to an end at later point of time by the High Court by a simpliciter discharge order. Learned counsel submits that when initially the matter was inquired into, nothing was found against these four officers and without their being any evidence against them, they have been discharged from service, which is wholly illegal, baseless and without application of mind. 10. Further submission of learned counsel for the petitioners is that initially after submission of report by the Senior Registrar (Judicial) dated 12.9.2014, the report was placed before the Administrative Committee on 15.9.2014 and the agenda was circulated in respect of five officers on the same day for considering the report submitted by the Senior Registrar (Judicial). It has to be presumed that initially, the High Court was of the view that only five officers were involved, but later on, by a sweeping resolution, the High Court proceeded to dismiss 11 officers without ascertaining their involvement in the incident. 11. The petitioners’ counsel further submit that the reliance placed by the learned counsel for the respondents in respect of conduct of the judicial officers and also that they stand on a different footing, cannot be taken into consideration as the law applies equally to all. Learned counsel submit that if a person is to be dismissed by holding an enquiry, then it cannot be said that a judicial officer can be dismissed without holding any enquiry. Submission is that the protection of law in respect of discharge/termination based on misconduct will be available to the petitioners as well and they cannot be thrown out without following the procedure as contemplated under law. Submission is that once the enquiry has been made and the incident has been alleged, then the order becomes stigmatic and the same cannot survive in the eyes of law. The order of discharge has been passed on the basis of the report submitted by the Senior Registrar (Judicial) and the Senior Registrar (Judicial) has inquired an incident, which has taken place on 7.9.2014. The incident is alleged to have taken place in respect of scuffle and taking of liquor in a Resort. The order of discharge has been passed on the basis of the report submitted by the Senior Registrar (Judicial) and the Senior Registrar (Judicial) has inquired an incident, which has taken place on 7.9.2014. The incident is alleged to have taken place in respect of scuffle and taking of liquor in a Resort. The enquiry report submitted by the OSD (Enquiries) also indicates in Para-138 that none of the public members were put to any inconvenience and neither they have been affected at all nor there was any evidence available to that effect. 12. Learned counsel for the petitioners, in support of their submissions, have placed reliance upon the following cases: (1) Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 ; (2) K.H. Phadnis v. State of Maharashtra, 1971(1) SCC 790 ; (3) Anoop Jaiswal v. Government of India and another, (1984) 2 SCC 369 ; (4) Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. And another, (1999) 2 SCC 21 ; (5) Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others, (2015) 15 SCC 151 ; (6) Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre For Basic Sciences, Calcutta and others, (1999) 3 SCC 60 ; (7) State Bank of India and others v. Palak Modi and another, (2013) 3 SCC 607 ; (8) Dr. Mrs. Sumati P. Shere v. Union of India and others, (1989) 3 SCC 311 ; (9) Samsher Singh v. State of Punjab and another, (1974) 2 SCC 831 ; and (10) Chandra Prakash Shahi v. State of U.P. and others, (2005) 5 SCC 152. 13. Countering the arguments of learned counsel for the petitioners, learned counsel for the High Court has submitted that by virtue of the report, which has been called in respect of an incident, the suitability of the officers have been judged and it was withing the domain of the High Court as contemplated under Rule 24(4) of the Rules to judge the suitability of the probationers and while judging the suitability of the probationers, if the High Court was of the view that they are unfit to be retained in service, they have been rightly discharged from service and their termination cannot be said to be illegal in any manner. Learned counsel submits that the power has been exercised as contemplated under the Rules and there is no illegality in the order passed by the High Court. The judicial officer stands on a different footing and they have to be viewed differently as compared to ordinary employee. 14. Learned counsel for the High Court also submits that the Rules of natural justice are not applicable in the case in hand. The order cannot be termed to be stigmatic and neither the incident will amount to misconduct as the petitioners were on probation and they were required to act properly and if they have failed to prove themselves, there was no option left but to terminate their services as they were under probation and they ought to have behaved and performed like a judicial officer of high rectitude. The discharge order is valid and if no reasons have been assigned in the same, the Court cannot go behind the reasons for passing the discharge order. The report was obtained only with a view to verify the incident and once the incident was verified and these officers were found involved in the incident, that report was accepted and on that basis, the order, discharging the petitioners from service, was passed. Therefore, in these circumstances, the order cannot be said to be stigmatic and even if the Court goes behind the order and tries to find out the reason for passing the simpliciter discharge order, then also, the incident cannot amount to misconduct and it was only for the purpose of satisfying that the petitioners are not fit to be retained in service. 15. 15. Learned counsel for the respondents has placed reliance upon the following cases: (1) Punjab National Bank and others v. Manjeet Singh and another, (2006) 8 SCC 647 ; (2) P.D. Agrawal v. State Bank of India and others, (2006) 8 SCC 776 ; (3) Karnataka State Road Transport Corporation and another v. S.G. Kotturappa and another, (2005) 3 SCC 409 ; (4) R.C. Chandel v. High Court of Madhya Pradesh and another, (2012) 8 SCC 58 ; (5) High Court of Judicature, Patna v. Shiveshwar Narayan and another, (2011) 15 SCC 317; (6) High Court of Judicature at Bombay through its Registrar v. Uday Singh S/o Ganpatrao Naik Nimbalkar and others, (1997) 5 SCC 129 ; (7) Krishnadevaraya Education Trust and another v. L.A. Balakrishna, (2001) 9 SCC 319 ; (8) Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another, (2002) 1 SCC 520 ; (9) Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 ; (10) Rajesh Kohli v. High Court of Jammu and Kashmir and another, (2010) 12 SCC 783 ; (11) The Manager, Government Branch Press and another v. D.B. Belliappa, (1979) 1 SCC 477 ; (12) Daya Shankar v. High Court of Allahabad and others, (1987) 3 SCC 1 ; (13) Ram Gopal Chaturvedi v. State of Madhya Pradesh, 1969 (2) SCC 240 ; (14) Nawal Singh v. State of U.P. and another, (2003) 8 SCC 117 ; (15) Ashok Kumar Yadav and others v. State of Haryana and others, (1985) 4 SCC 417 ; (16) Dr. T.C. Pillai v. The Indian Institute of Technology, Guindy, Madras, 1971 (2) SCC 251 ; and (17) State of U.P. and another v. Kaushal Kishore Shukla, (1991) 1 SCC 691 . 16. We have heard learned counsel for the parties and perused the record. 17. The petitioners have been discharged from service by simpliciter order relying upon a report which was submitted by Senior Registrar (Judicial) on 12.9.2014. After appointment of the petitioners on the post of Civil Judge (Junior Division) in pursuance to the advertisement issued by the State of U.P. on 10.5.2013, they were put under probation and their training programme was fixed from 9.6.2014 to 8.9.2014. The petitioners completed their training programme successfully. Even otherwise, no complaint was found and neither any adverse material was communicated to them and neither any complaint was received against their working. The petitioners completed their training programme successfully. Even otherwise, no complaint was found and neither any adverse material was communicated to them and neither any complaint was received against their working. As probationers, they continued to discharge their duties to the full satisfaction of the superior authorities and work and conduct of the petitioners were appreciated and no shortcoming was found at any point of time, but one day before the concluding day i.e. 7.9.2014, the petitioners went out for dinner in Charan Club and Resort, Faizabad Road, Lucknow and it is stated that there, they consumed liquor and entered into brawl and the incident was reported that one of the officers was beaten by fellow trainee officers to the extent that he became unconscious. The incident took place as lewd remarks were made at fellow lady trainee officer. The incident was reported and the Registrar General after receiving a telephonic call on 8.9.2014 regarding the incident which has taken place on 7.9.2014 put up a note before the then Chief Justice on 9.9.2014. The then Chief Justice for the purposes of ascertaining the fact in respect of the incident which was taken place on 7.9.2014 in Charan Club and Resort, Faizabad Road, Lucknow and within the premises of JTRI, Lucknow, directed the Senior Registrar (Judicial) to visit the place of incident and to submit a report. The Senior Registrar (Judicial) visited the place of incident and after collecting the necessary information submitted enquiry report before the then Chief Justice on 12.9.2014. The said enquiry report was placed before the Administrative Committee held on 15.9.2014 and the then Administrative Committee resolved that the matter be placed before the Full Court. Consequently, a Full Court meeting was held on 15.9.2014 and an agenda was circulated in the Full Court meeting. The agenda which was circulated reads as under : “Suitability of the probationary Judicial Officers, namely, Sri Ashwani Panwar, Additional Civil Judge (Junior Division), Lakhimpur Kheri, Sri Bhanu Pratap Singh, Additional Civil Judge (Junior Division), Bahraich, Sri Asha Ram Pandey, Judicial Magistrate, Maharajganj, Sri Rahul Singh, Judicial Magistrate, Auraiya and Sri Ashutosh Tripathi, Civil Judge (Junior Division), Azamgarh.” 18. The above agenda was placed for consideration before the Full Court. The agenda specifically speaks about five persons. The above agenda was placed for consideration before the Full Court. The agenda specifically speaks about five persons. The Administrative Committee on the basis of the report found that action was required to be taken against these five persons, but when the matter was placed before the Full Court, name of eleven persons were placed and they were discharged from service by simpliciter order. 19. Later on, one Hon’ble Judge of this Court wrote a letter to the then Chief Justice on 15.9.2014 indicating therein that the report submitted by the Senior Registrar (Judicial) does not indicate anything about the role of the Senior Judicial Officers at JTRI and their role in the incident was required to be enquired into. In pursuance to the aforesaid letter, the then Chief Justice appointed Sri S.K. Pachauri, OSD (Enquiries) to conduct a vigilance enquiry into the matter. Vigilance enquiry was conducted into the matter and report was submitted on 22.1.2015. In paragraph 135 of the enquiry report, only on the basis of CCTV footage, four additional judicial officers were seen, but no incriminating evidence against them was found and neither any overt act has been alleged against them nor any omission or commission of any act has been alleged, but simply on the basis of averment made in paragraph 135 of the report, their case was also placed before the Administrative Committee. The report submitted by Sri S.K. Pachauri, OSD (Enquiries) was placed before the Administrative Committee on 5.2.2015 and thereafter the Administrative Committee decided to place the matter before the Full Court. Thereafter, the Full Court considered the matter on 23.5.2015 and proceeded to dismiss four other officers, namely, Mukesh Kumar, Hirdesh Kumar, Shobhit Sourav and Himanshu Mishra. What was the nature of evidence available against these persons is not known and neither it has come in the report. In paragraph 135 of the report submitted by Sri S.K. Pachauri, OSD (Enquiries), whatever reference has been made is quoted below : “135. That the bill of the dinner party of induction trainee officers on 7.9.2014 was paid by Shri Kshitiz Pandey in cash at 11.39.00 onwards as said by EW-43 Sri Ashutosh Singh, Manager of Charan Club & Restaurant after seeing the CCTV footage of CAM-1. In this dinner party 15 induction trainee officers consumed liquor of Rs. 7,892/- and food of Rs. 5,590/- and paid total Rs. In this dinner party 15 induction trainee officers consumed liquor of Rs. 7,892/- and food of Rs. 5,590/- and paid total Rs. 13,482/- to the Charan Club & Restaurant. Photocopies of bill are being filed as document No. 17. 20. Apart from paragraph 135, paragraph 138 of the report is also equally important. Paragraph 138 of the enquiry report reads as under : “138. That after considering all the facts and circumstances, it is prima facie proved that 15 ……….of Civil Judge (Jr. Div.) Phase-II namely Sri Vineet Kumar, Shri Kshitiz Pandey, Shri Sandeep Singh, Shri Ravi Kumar Sagar, Shri Ashutosh Tripathi, Shri Sudhir Mishra, Shri Ashwani Panwar, Shri Bhanu Pratap Singh, Shri Asha Ram Pandey, Shri Akhilesh Kumar Sharma, Shri Rahul Singh, Shri Mukesh Kumar, Shri Hirdesh Kumar, Shri Shobhit Sourav and Shri Himanshu Mishra were present in the dinner party which was organized at Charan Club & Resort, Chinhat, Faizabad Road, Lucknow, there was no lady officer in this party, no eve teasing occurred with outsider women. In this dinner party 15 induction trainee officers consumed liquor of Rs. 7,892/- and food of Rs. 5,590/- and paid total Rs. 13,482/-. Shri Kshitiz Pandey one trainee officer ordered and billed the drink and food at that night. 44 colour photographs are being filed as document No. 18.” 21. Sri S.K. Pachauri was required to enquire into the conduct of the senior judicial officers, who were posted in JTRI, Lucknow. Role of four judicial officers at later point of time was never required to be enquired into by him and neither any report was required to be submitted by him, but inadvertently he only stated in the report that these persons were present. He has not stated anything about the overt act of the four judicial officers. It is also important to note that under the orders of the then Chief Justice, the enquiry was assigned to Sri S.K. Pachauri, OSD (Enquiries) in pursuance to the letter written by one Hon’ble Judge of this Court to enquire into the conduct of judicial officers of the JTRI, Lucknow. 22. What prevailed with the Full Court cannot be ascertained but the fact remains that the agenda was in respect of considering the suitability of five judicial officers. 22. What prevailed with the Full Court cannot be ascertained but the fact remains that the agenda was in respect of considering the suitability of five judicial officers. If the suitability of five judicial officers was to be considered, then discharge of eleven officers appears to be a far fetched exercise and involvement of other officers also becomes doubtful. May be that they were present at the place of incident but the Senior Registrar (Judicial) has not found anything against them and the incident took place in respect of alleged five officers only, who were actively involved in the incident but the fact remains that on the basis of enquiry report submitted by the Senior Registrar (Judicial), the Full Court proceeded to discharge eleven officers by a simpliciter order. Initially the order was passed on 19.9.2014, but later on, in pursuance to the letter written by the Registrar General amended order was passed on 22.9.2014 being a simpliciter order. Earlier order was passed relying upon the report of Senior Registrar (Judicial). 23. In the present case, Rule 22 (3) and Rule 24 (4) of the Rules are relevant for the purposes of consideration, which are reproduced as under : “22 (3). At the end of the period of training, the Director shall send his report to the Court about the conduct and performance of the probationer during the training. Where the director is of the opinion that any officer has not successfully completed the training, he shall forward his opinion to the Court alongwith the relevant material.” 24 (4). If, it appears, to the Court at any time during or at the end of period of probation or extended period of probation, as the case may be, that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction, it may make recommendation to the appointing authority whereupon the probationers shall be discharged from the service by the appointing authority.” 24. Rule 22 (3) of the Rules contemplates that the Director shall send his report to the Court about the conduct and performance of the probationer during the training and if the Director is of the opinion that any officer has not successfully completed the training, he shall forward his opinion to the Court alongwith the relevant material. Rule 22 (3) of the Rules contemplates that the Director shall send his report to the Court about the conduct and performance of the probationer during the training and if the Director is of the opinion that any officer has not successfully completed the training, he shall forward his opinion to the Court alongwith the relevant material. Rule 24 (4) of the Rules gives power to the Court to discharge the probationers from service making recommendation to the appointing authority if a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction. The words used in this Rule is important. It says that the probationer has not made sufficient use of opportunities or has otherwise failed to give satisfaction. 25. Otherwise failed to give satisfaction has to be taken into consideration in the light of the incident which has taken place. The assessment has to be made on the basis of overall performance and entire period of probation and on that basis, a decision has to be taken to discharge from service, that cannot be faulted, but an incident of the nature wherein it is alleged that persons have entered into brawl and entered into marpeet, then whether such incident can be said to be misconduct or it will be treated to be a motive for the purposes of ascertaining that the probationers should not be continued in service. 26. No exercise has been undertaken by the Director, JTRI and neither any recommendation has been made in respect of completion of the training by the petitioners. No report from the District Judge has been received in respect of the working of the petitioners or any deficiency therein. The solitary incident which has taken place and regarding which an enquiry has been made and on the basis of the said enquiry, the decision has been taken to dismiss the petitioners from service certainly leads to the conclusion that the order is stigmatic and the same could not have been passed without observing the principles of natural justice and the order is based on foundation rather than motive. Law in respect of foundation and motive has been clarified succinctly by the Apex Court from time to time and in the case of Purshotam Lal Dhingra (supra), it has been held that if discharge/termination of probationer is founded on misconduct/negligence or in-efficiency, then termination amounts to punishment and the compliance of Article 311 of the Constitution is necessary. 27. Purshotam Lal Dhingra (supra) is the first decision of the Constitution Bench of Hon’ble the Supreme Court, where a twin test was laid down; whether the order in terms of the appointment gave a right to terminate and whether the order was punitive in nature. The Apex Court held that if misconduct was the ‘’motive’, the order was not punitive but if it was the ‘’foundation’, it was punitive. In that case, the employee was working in a higher post in an officiating capacity and that appointment was terminated and he was reduced in rank. In paragraph 28 of the said judgement, it was stated that misconduct, negligence, inefficiency or other disqualification might be the motive or the inducing factor which influenced the Government to take action under the terms of the contract of employment or the specific service rule, and the motive was irrelevant. But if the termination was ‘founded’ on misconduct, negligence, inefficiency or other disqualification, it would have to be treated as a punishment. It was also held that the use of the word ‘termination’ or ‘discharge’ was not conclusive. In spite of the use of such innocuous expressions, the Court could still hold it be punitive. On the facts of the case, the termination of the officiating appointment was based upon certain adverse remarks and it was held that it was not by way of punishment. Paragraph 28 of the case of Purshotam Lal Dhingra (supra) is reproduced hereunder : “28.The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India, (1953) SCR 655. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India, (1953) SCR 655. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh [ (1955) 1 SCR 26 ]. In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India [LR 58 Bom 673 : AIR (1956) Bom 455] wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forefeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression “terminate” or “discharge” is not conclusive. The use of the expression “terminate” or “discharge” is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.” 28. In the case of K.H. Phadnis (supra), the Apex Court held that if there is evidence that the order of reversion is not ‘’a pure accident of service’ but an order in the nature of punishment, Article 311 of the Constitution would be attracted. 29. Further in the case of Anoop Jaiswal (supra), the Apex Court in paragraph 12 held as under: “12. It is, therefore, now well-settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.” 30. In the case of Radhey Shyam Gupta (supra), the Apex Court in paragraph 33 & 34 held as under : “33. In the case of Radhey Shyam Gupta (supra), the Apex Court in paragraph 33 & 34 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 continued 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 inquiry. It has been so decided in Champaklal’s case. 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, thee 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 inquiry was stopped because the employer was not sure of establishing the quilt 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 Gujrat 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 all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujrat 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 inquiry. 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 cases.” 31. In the case of Ratnesh Kumar Chaudhary (supra), the proposition of law propounded in the case of Anoop Jaiswal (supra) was reiterated. 32. In the case of Dipti Prakash Banerjee (supra), the Apex Court found that if the enquiry was conducted and termination founded on the allegation of misconduct, the same would be bad in law. 33. In the case of Ratnesh Kumar Chaudhary (supra), the proposition of law propounded in the case of Anoop Jaiswal (supra) was reiterated. 32. In the case of Dipti Prakash Banerjee (supra), the Apex Court found that if the enquiry was conducted and termination founded on the allegation of misconduct, the same would be bad in law. 33. The question pertaining to motive and foundation has been discussed by the Apex Court in the case of Chandra Prakash Shahi (supra) and in paragraph 28, it was held 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”.” 34. In the case of Union of India v. Mahaveer C. Singhvi, (2010) 8 SCC 220 , again the Apex Court dwelled upon the issue whether the order of discharge of a probationer was simpliciter or punitive and referred to the case of Dipti Prakash Banerjee (supra). Relevant paragraph-10 of case of Mahaveer C. Singhvi (supra) reads as under : “10. It was held by this Court that whether an order of termination of a probationer can be said to be punitive or not depends on whether the allegations which are the cause of the termination are the motive or foundation. Relevant paragraph-10 of case of Mahaveer C. Singhvi (supra) reads as under : “10. It was held by this Court that whether an order of termination of a probationer can be said to be punitive or not depends on whether the allegations which are the cause of the termination are the motive or foundation. It was observed that if findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, a simple order of termination is to be treated as founded on the allegations and would be bad, but if the enquiry was not held, and no findings were arrived at and the employer was not inclined to conduct an enquiry, but, at the same time, he did not want to continue the employee’s services, it would only be a case of motive and the order of termination of the employee would not be bad.” 35. Case of Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and another, (2002) 1 SCC 520 , was considered in the case of State Bank of India v. Palak Modi (supra) wherein it was diluted and confined to the facts of that case and in paragraph 45 it was held as under : “45. The proposition laid down in none of the five judgments relied upon by the learned counsel for the appellants is of any assistance to their cause, which were decided on their own facts. We may also add that the abstract proposition laid down in para 29 in Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and another, (2002) 1 SCC 520 , is not only contrary to the Constitution Bench judgment in Samsher Singh v. State of Punjab, (1974) 2 SCC 831 , but a large number of other judgments—State of Bihar v. Shiva Bhikshuk Mishra, (1970) 2 SCC 871 , Gujarat Steel Tubes Ltd. V. Mazddor Sabha, (1980) 2 SCC 593 and Anoop Jaiswal v. Union of India, (1984) 2 SCC 369 , to which reference has been made by us and to which attention of the two-Judge Bench does not appear to have been drawn. Therefore, the said proposition must be read as confined to the facts of that case and cannot be relied upon for taking the view that a simple order of termination of service can never be declared as punitive even though it may be founded on serious allegation of misconduct or misdemeanour on the part of the employee.” We respectfully agree with the view expressed herein-above.” 36. In paragraph 25 of the case of Ratnesh Kumar Choudhary (supra), the Apex Court held as under : “25. In the facts of Palak Modi case (supra), the Court proceeded to state that there is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for confirmation of a probationer and the Bank’s right to punish a probationer for any defined misconduct, misbehaviour or misdemeanour. In a given case, the competent authority may, while deciding the issue of suitability of the probationer to be confirmed, ignore the acts of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanour constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non-stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct.” 37. In the case of Dr. Mrs Sumati P. Shere (supra), even in the case of contractual appointment, the Apex Court in paragraph-5 held as under : “5. We must emphasize that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, give-and-take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies; indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.” 38. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.” 38. In the case of Anoop Jaiswal (supra), the Apex Court further found that even if decision has been taken to set an example for others including those other probationers, who are similarly situated so that they may learn a lesson therefrom, but the said argument was negatived by the Apex Court. In the said case, the Apex Court found that the real foundation for the order of discharge of the appellant-probationer was the alleged act of misconduct. 39. In the case of Anoop Jaiswal (supra), a report was called regarding the incident which has taken place in the training period as certain probationers, who where selected for appointed in the IPS was undergoing training as probationers. On a particular day, all the trainees arrived about 22 minutes late at the place where P.T./unarmed combat practice was to be conducted. Similar is the case in hand and the discharge order has been passed only on the basis of misconduct. 40. In the case of Samsher Singh (supra), Seven Judges Bench was considering the legal propriety of the discharge of two judicial officer of the Punjab Judicial Service, who were serving as probationers and in the said case, the Apex Court in paragraphs 63 & 80 held as under : “63. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Constitution. 80. ………The form of the order is not decisive as to whether the order is by way of punishment. 80. ………The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside.” 41. In the case of Gujarat Steel Tubes Ltd. V. Mazdoor Sabha, (1980) 2 SCC 593 , the Apex Court held in paragraphs 53 & 54 that when a termination simpliciter can be termed as punitive, which are as under : “53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used. 54. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used. 54. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here.” 42. Reliance placed by the learned counsel for the High Court on the case laws that principles of natural justice are not strictly adhered to in given circumstances. The incumbent is required to show that prejudice has caused to him on account of alleged violation of principles of natural justice. If the prejudice is not established, then violation of principles of natural justice cannot be termed to be fatal for the case. 43. In the case of Ashok Kumar Sonkar (supra), the issue involved was that the appellant therein was not having the requisite qualification as on the cut off date. In that background it was held by the Apex Court that the principles of natural justice may not be applicable in a given case unless prejudice is shown and moreover, application of the said principles is not necessary where it would be a futile exercise. If the selection of the appellant therein was illegal as he was ineligible to be considered for appointment, the cancellation of his appointment without affording any opportunity of hearing to him by the Visitor of the University concerned was held to be proper. 44. The case of Manjeet Singh (supra) also lays down the principle of law as contemplated under Section 18 (3) (d) of the Industrial Dispute Act. It was held that the workmen cannot be heard to say that the award was not binding on them only because they were not parties. 44. The case of Manjeet Singh (supra) also lays down the principle of law as contemplated under Section 18 (3) (d) of the Industrial Dispute Act. It was held that the workmen cannot be heard to say that the award was not binding on them only because they were not parties. It was held by the Apex Court that the workmen are not expected to be impleaded or heard in a reference with all India implications, as in the case in hand, the principles of natural justice were also not required to be complied with as the same would have been an empty formality. Since the award was binding between the parties, therefore, there is no applicability of principles of natural justice. 45. Case of P.D. Agrawal (supra) also deals with the same situation and it was held by the Apex Court that the order vitiates only when some real prejudice is caused to the complainant by such omission. The said principles are applied having regard to the fact situation in each case. There has been a change in the earlier concept that even a small violation of the said principles would be fatal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. The Apex Court in the said case found that the charge was found disproved and was found to be severable, therefore, the case was taken up for consideration on other points. The remedy being discretionary under Article 136 and dismissed the SLP. 46. In the case of S.G. Kotturappa (supra), the Apex Court held that the question as to what extent principles of natural justice are required to be complied with would depend upon the fact situation obtaining of each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of termination of services of an employee is to apply the objective criteria for arriving at the subjective satisfaction. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of termination of services of an employee is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with. 47. So far the question of judicial officer being not an ordinary Government servant and he cannot be treated alike any Government servant and rather he stands on a different footing and so far his termination on the basis of any misconduct is concerned, the misconduct committed by judicial officer has been dealt with strictly by the Apex Court in various cases and broad principle which has been laid down is that the judicial officer has to be kept on a different footing and the Court has to apply a different criteria while assessing the misconduct committed by the judicial officer and also assessing its right to be retained in service. 48. R.C. Chandel (supra), Shiveshwar Narayan (supra) and Uday Singh (supra), in all these cases, the same principle of law has been laid down and it has been held that a judicial officer is not an ordinary Government servant but exercises sovereign judicial power and hence, must be above suspicion. Personality of an honest judicial officer is ultimate guarantee to justice. Judicial officers hold office of great trust and responsibility and hence their judicial conduct must be beyond suspicion. Slightest dishonesty of the judicial officer may have disastrous effect. 49. In the case of Uday Singh (supra), the Apex Court held that since the respondent therein being a judicial officer was required to maintain discipline in judicial service and that was a paramount matter as acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the officer. Confidence of the litigating public gets affected or shaken by lack of integrity and character of judicial officer and hence, the Apex Court refused to interfere. 50. Confidence of the litigating public gets affected or shaken by lack of integrity and character of judicial officer and hence, the Apex Court refused to interfere. 50. In the case of Rajesh Kohli (supra) also, the principles of natural justice was also not applicable and the facts prevailing therein were that the Full Court of the High Court after assessment of the work and conduct of the appellant therein has extended the probation, but proceeded to recommend his termination on account of the fact that there was a criminal complaint against him for his conduct when he was an advocate and second, complaint of misbehaviour and problem causing in District of posting, third the petitioner had not joined his place of posting for certain period for which an explanation had been sought from him. The Apex Court noticed that the principles of natural justice were not followed, but the High Court has solemn duty to consider and appreciate service of a judicial officer before confirming him in service and for this, not only judicial performance but also probity as to how one has conducted himself is important, then the principles of natural justice would not be attracted. On an assessment of his work and conduct during the period of probation, a decision is taken as to whether or not his service is satisfactory and also whether or not on the basis of his service and track record his service should be confirmed or extended for further scrutiny of his service if such extension is permissible or whether his service should be dispensed with and terminated. It was held that even if an order of termination with reference to unsatisfactory service is passed, the same cannot be termed to be stigmatic. To the same effect is the case of L.A. Balakrishna (supra). 51. In the case of D.B. Belliappa (supra), the Apex Court in paragraph 26 held as under : “26. Coming back to the point, we have a vague feeling that it was, perhaps, open to the appellant to say in view of the complaint alluded to in the snow-cause notice against the integrity and fidelity of the respondent, that the former had lost confidence in the latter and considered him unsuitable to be continued in the post which was one of trust and confidence. But it will be hazardous for us to base our decision on any such speculation, when the appellant, himself, instead of taking any such plea, has, with obdurate persistency stuck to the position that the respondent’s service has been terminated without any reason, which comes perilously near to admitting that the power reserved to the employer under the conditions of the employment, has been exercised arbitrarily.” 52. In the case of Daya Shankar (supra), the charge against Munsif was of using unfair means in LL.M. examination. The Apex Court held that judicial officers cannot have two standards; one in the Court and another outside the Court and they must have only one standard of rectitude, honesty and integrity, but in the said case a full fledged enquiry was held and the enquiry report was considered by the Full Court and the Full Court recommended on 21.8.1982 for termination of the appellant therein. The facts of the said case are altogether different from the present case. 53. In the case of Ram Gopal Chaturvedi (supra), the Apex Court found that the order on the face of it did not cast any stigma on the appellant’s character and integrity nor did it visit him with any evil consequences and it was not passed by way of punishment. In the said case, it was found that the appellant therein was associated with a young girl against the wishes of her father and other members of her family and the Chief Justice of Madhya Pradesh made enquiries into the matter and on February 19, 1954, he admonished the appellant therein for this disreputable conduct. Then again observation was made by the Chief Justice that though no charge-sheet was served on the appellant nor any departmental enquiry was held against him but it was found that it was immaterial that the order was preceded by an informal enquiry into the appellant’s conduct, therefore, he could be terminated by way of order of simpliciter as his services were not found to be satisfactory. 54. Case of Nawal Singh (supra) deals with compulsory retirement of an officer, therefore, it is not of much help to the opposite parties. 55. Case of Ashok Kumar Yadav (supra) is also beside the point and has no applicability in the present case. 56. 54. Case of Nawal Singh (supra) deals with compulsory retirement of an officer, therefore, it is not of much help to the opposite parties. 55. Case of Ashok Kumar Yadav (supra) is also beside the point and has no applicability in the present case. 56. Case of Kaushal Kishore Shukla (supra) was a case dealing with appointment of an adhoc or temporary Government servant effected on the basis of assessment of suitability on consideration of adverse entry and preliminary enquiry report. Therein the Apex Court held that the enquiry, which was held against the respondent was preliminary in nature and not on suitability and continuance in service. It was not based on any misconduct or any incident, therefore, the said case is distinguishable in comparison to the facts of the present case. 57. The Division Bench of this Court in the case of Paras Nath Pandey v. Director, North Central Zone, Cultural Centre, Allahabad, 2008(10) ADJ 283 (DB), enunciated the following principles in paragraph 57, which reads as under : “57. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under: (a) The termination of services of a temporary servant or probationer under the Rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution. (b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences. (c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order. (d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct. (e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary. (f) “Motive” and “foundation” are distinct, though the distinction is either very thin or overlapping. “Motive” is the moving power, which impels action for a definite result, or to put it differently. “Motive” is that which incites or stimulates a person to do an act. “Foundation”, however, is the basis, i.e., the conduct of the employee. When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation. (g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it wouldnot. (h) Whether the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even through the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive. (i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed. (j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the Rules before terminating an probationer or temporary employee is held, it would not make the order punitive. (k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive. (l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceeded on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee. (l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceeded on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee. (m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive. (n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct. (o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive: (I) “want of application”, (ii) “lack of potential”, (iii) “found not dependable”, (iv) “under suspension”, (v) “work is unsatisfactory”, (vi) “unlikely to prove an efficient officer”. (p) Description of background facts also have not been held to be stigmatic. (q) However, the words “undesirable to be retained in Government service”, have been held stigmatic. (r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive.” 58. No doubt all these cases put the judicial officer on a different footing, but when the question of application of law arises, then it has to be considered as to whether the petitioners would be entitled for the protection of the legal position prevailing under law and also the proposition of law laid down by the Apex Court. No doubt all these cases put the judicial officer on a different footing, but when the question of application of law arises, then it has to be considered as to whether the petitioners would be entitled for the protection of the legal position prevailing under law and also the proposition of law laid down by the Apex Court. We feel that the petitioners would be entitled for the benefit of the legal position settled by the Apex Court wherein it has been held that if the termination simpliciter/discharge is based on misconduct, then certainly principles of natural justice would be applicable and the order would be bad. 59. Learned counsel for the petitioners has also shown stigmatic effect of the impugned orders dated 19.9.2014 and 22.9.2014 as the State Government has rejected right of lien of Asharam Pandey one of the petitioners with respect to his previous post, Assistant Prosecution Officer. The Government of U.P. not only rejected the lien but even the selection of Asharam Pandey on the post of Assistant Prosecution Officer through examination held in 2002 was recommended for cancellation. The argument, therefore, of the counsel for the opposite parties is that the Rule has been modified and the petitioners are not debarred from seeking future employment as there has been amendment in sub-rule (5) of Rule 24 of the Rules, which reads as under : “(5) A person, whose services are dispensed with under sub-rule (4) shall not be entitled to compensation.” The unamended sub-rule (5) of Rule 24 of the Rules reads as under : “(5) A person, whose services are dispensed with under sub-rule (4) shall not be entitled to compensation and shall also not be eligible for reappointment to the service.” 60. So the argument of the learned counsel for the opposite parties that the Rule has been amended and it does not carry its effect is of no avail. So the argument of the learned counsel for the opposite parties that the Rule has been amended and it does not carry its effect is of no avail. May be that the said rider has been removed, but it is to be noted that the post of District Judge (HJS) cadre examination notified by Karnataka High Court under Karnataka Judicial Service (Recruitment) Rule 2004, contains a clear cut bar for those candidates, who have been discharged from judicial service during probation period and because of the discharge order passed here against the petitioners, they could not appear in the said examination and therefore, the same is punitive and stigmatic in character and also affected future prospect of the petitioners being disqualified for future appointment. 61. Prior to the alleged incident, work and conduct of the petitioners were found to be satisfactory and performance was also found to be satisfactory and the Director, JTRI has also issued certificate indicating the successful completion of training but on account of the aforesaid incident, an endorsement has been made in the said certificate wherein it has been indicated that due to an incident which took place in the night of 7th September, 2014, services of the trainee officers have been dispensed with. This endorsement is itself sufficient proof of the fact that the incident of 7th September 2014 is the basis for termination of services of the petitioners. Therefore, the alleged incident of 7th September, 2014 has played the main role in termination of services of the petitioners. It is to be noted that various officers may have set up various pleas in the writ petitions that they are teetotaler and they did not take wine or they were not associated with the incident and they were away from the said place and they were only involved in pacifying the matter. A specific pleading has been made that on the next day, the matter was amicably settled between all the judicial officers and everything came to an end. 62. The petitioners are the young judicial officers and they are newly inducted officers and were not having required experience of service and how to conduct themselves in the Court and out side the Court and also that the incident was a fall out of an altercation between the parties, which is a normal human conduct. 62. The petitioners are the young judicial officers and they are newly inducted officers and were not having required experience of service and how to conduct themselves in the Court and out side the Court and also that the incident was a fall out of an altercation between the parties, which is a normal human conduct. Even many people while talking to each other without under the influence of intoxication, they enter into altercation. The enquiry report also goes to indicate that no lewd remark was made against any lady and the earlier report submitted, therefore, is contrary to that extent submitted by Sri S.K. Pachauri, OSD (Enquiries). The petitioners on account of their inexperience and being young officers should have been given opportunity to improve rather than straight away terminating them from service on the basis of the alleged incident. Some of them are married and have children and family has to survive and some of them are unmarried, who are likely to be married in near future and their marriage prospect has also been dimmed by the aforesaid incident. 63. On consideration of the entire facts and circumstances of the case, the writ petitions are liable to be allowed. 64. All the writ petitions are accordingly allowed. A writ in the nature of certiorari is issued quashing the impugned orders dated 19.9.2014, 22.9.2014 and 15.6.2015. It is further directed that the opposite parties shall reinstate the petitioners. However, the opposite parties will be at liberty to proceed as per law. Petitions Allowed. In view of difference of opinion between the members of the Bench, let the record of these writ petitions be placed before Hon’ble the Chief Justice under Chapter VIII Rule 3 of the Rules of the Court for nomination of Bench.