V.K Singh V. Union Of India And Others | Allahabad High Court | Law

A.N Varma, J.:— An episode during a trek by a group of I.A.S Probationers including the petitioner as part of their training between 1st and 3rd October, 1981, resulted not only in the discharge of the petitioner from the Indian Administrative Service under the impugned order passed by the Central Government, but also in the quitting on that-issue of Sri P.S Appu, a very senior Civil Servant, who was then the Director of the Lal Bahadur Shastri National Academy of Administration, Mussoorie. The episode and its aftermath generated country wide reaction, echoing through the entire national Press and becoming in its wake the subject of considerable heated debate in Parliament.

2. Initially the Central Government soft pedaled the issue, taking a lenient view of the conduct and behaviour of the petitioner, an I.A.S Probationer undergoing training in the aforesaid Academy, and decided to let him off with a warning. But subsequently on Sri Appu's taking a premature voluntary retirement in protest against what he described as the cavalier fashion in which the Central Government glossed over so serious a matter by letting off the petitioner, and, later, as a result of the letter of Sri Appu addressed to the Prime Minister Mrs. Indira Gandhi expressing his deep sense of shock at the total in difference shown by the Central Government over a grave issue arising from what he considered an act of gross misconduct committed by the petitioner during the trek mentioned above, the Central Government reconsidered the matter and passed the impugned order dated 5th March, 1982, discharging the petitioner from Indian Administrative Service ostensibly on the ground that he was unsuitable for being a member of the said Service purporting to exercise powers under Clause (b) of Rule 12 of the Indian Admin istrative Service (Probation) Rules, 1954. The question which was the subject of main debate at the Bar is the perennial one, namely, whether the impugned order which is innocuous on its face, is, in truth and substance, an order of discharge simpliciter or is one intended to punish the petitioner so as to attract the application of Article 311(2) of the Constitution of India.

3. In order to answer the question posed above, it will be necessary to project the background of facts and surrounding circumstances in which the impugned order came to be passed. A brief resume of the facts would, therefore, be necessary.

4. After passing the I.A.S Examination held in 1908, the petitioner was selected for appointment to the Indian Administrative Service through a letter of appointment dated August 6, 1981. On September 1, 1981 the petitioner joined the Lal Bahadur Shastri National Academy of Administration, Mussoorie as an I.A.S Probationer. The petitioner was earlier selected for the National Defence Academy where he continued from 1968 to 1971. In the year 1971 he was withdrawn from the National Defence Academy. Thereafter he joined the Indian Foreign Service (B) in 1978 and while in that service, he appeared at the I.A.S Examination and was declared successful as mentioned above in 1980.

5. Trekking the Himalayas is part of the training imparted to I.A.S probationers. The probationers are divided into several groups for that purpose. The petitioner was assigned group B which consisted of 40 probationers, 8 of whom were lady probationers. K. Alaudin, an I.A.S Probationer from South India was made the group leader and Miss Renu Singh, an I.A.S probationer from Uttar Pradesh was made its treasurer. The route prescribed for this group was Mussoorie-Badrinath-Vallery of Flowers-Hem-kund Kedarnath and back to the Academy on October 3, 1981.

6. During this trek which lasted for about three days, the petitioner's behaviour and conduct appears to have caused considerable resentment, and even fear among the fellow probationers accompanying the petitioner. Both sides gave different versions of precisely what happened. The petitioner asserts that some of the probationers including the group leader and the group treasurer repeatedly used abusive language against the petitioner calling him ‘uncivilized Behari bastard’, despite remonstrance.

7. The version of the Government, on the other hand, is different. According to the report of the Deputy Director of National Academy to whom the enquiry was entrusted by the Director of the Academy, throughout this trekking mission the petitioner was under the influence of alcohol and in that state he was getting into heated arguments and disputes with the group leader and the group treasurer and in a state of inebriation Sri V.K Singh, the petitioner, threatened the lady probationers with a fire arm, brandishing that weapon at other fellow probationers throughout. The lady probationers got so much terror stricken by the petitioner brandishing the fire arm that they locked themselves up in one room and piled their luggage against the door to serve as an improvised barricade. When the group returned to the academy on October 3, 1981 the Director of the Academy Sri Appu came to know of the episode. He deputed the Deputy Director and the Associate Director to ascertain the facts of the matter. All the probationers of the trekking group No. 2 were verbally advised by the Academy authorities to file their statements. The petitioner was also asked to give his own version, but he pleaded for more time. Meanwhile the Director found that the fellow probationers were not forthcoming to give their statements allegedly out of scare, and consequently he asked the petitioner to go on leave with a view to enable the Deputy Director and Associate Course Director to carry out the enquiry in a proper atmosphere so that the fellow probationer gave their statements uninhibited by the fear of the petitioner. It is stated that the statements of the fellow probationers were recorded. Thereafter the Deputy Director submitted his report to the Director of the Academy.

8. According to the enquiry report, the petitioner had misbehaved with the fellow probationers. He had got drunk and threatened the group leader and the group treasurer with a firearm. So much scare had been caused by the petitioner's brandishing a firearm that the fellow probationers including the lady probationers had locked themselves up in a room and went without food on that account. The substance of the finding is that the petitioner behaved like a drunken bully abusing and terrorising his fellow probationers as mentioned above. On the aforesaid report the Director of the Academy wrote a confidential letter dated October 28, 1981 to the Central Government stating all these facts. In the letter, the Director said that appropriate action should be taken against the petitioner for ‘gross misconduct on the part of Vijai Kumar Singh.’ The Director further stated in that letter as follows:

“The report also shows that at Badrinath in the evening of October 1, under the influence of liquor, he misbehaved with his fellow probationers. The report reveals four grave acts of misconduct. These are briefly discussed below……. These four incidents show that V.K Singh behaved like a drunken bully and abused and terrorised his fellow probationers including girls. It is to be regretted that none of the 31 male probationers in the group proved to be man enough to deal with this buliy effectively. Perhaps, they were unnerved by the fact that he was brandishing a firearm…….. As a matter of fact, he committed grave offences punishable under the criminal law of the land. The fact that he apologised the next day is of little consequence because apology can be no atonement for the grave offences committed by him………………………………….after having given my anxious consideration to all the facts and circumstances of the case, I have come to the conclusion that V.K Singh is guilty of conduct unbecoming a member of Indian Administrative Service. This is a case where dismissal from service under Rule 11(2) of Indian Administrative Service (Probation) Rules, 1954 will be the appropriate punishment. However, I am inclined to take a charitable view because V.K Singh has a young wife and a child. The facts brought out in Alok Sinhas report, however, make it absolutely clear that V.K Singh is unfit to be a member of the Indian Administrative Service and that he lacks the qualities of mind and character expected of a member of the Service. I would, therefore, recommend that instead of dismissing him from Service, he may be discharged under Rule 12(b) and 12(bb) of the Indian Administrative Service (Probation) Rules, 1954. A discharge under Rule 12 will not debar him from future government employment or from reverting to his earlier government employment on which he holds a lien”.

9. The Central Government disagreed with Sri Appu as to the action which he proposed against the petitioner and through a confidential letter dated February 4, 1982 addressed to Sri Appu, the Secretary of the Department of Personnel and Administration Reforms, Ministry of Home Affairs, New Delhi, wrote as follows:

“Government has carefully considered the report of gross misconduct of Shri Vijai Kumar Singh and your recommendation to discharge him. Government consider that adopting a reformative approach would be preferable to deterrent action, in this case. Accordingly Government have decided that a strict warning be issued to Sri Vijai Kumar Singh and a watch kept over his conduct and behaviour for one year. Further, a six monthly report may be sent on the probationer during this period for consideration of the Government.”

10. Sri Appu appears to have felt greatly revolted by the above reaction of the Government. He considered the action proposed by the Government, namely, a warning to the petitioner an eyewash and entirely inadequate and in protest immediately went on long leave preparatory to retirement. This was widely publicised in the national press some of which said that Sri Appu had recommended a strong action to the Government and that on the Governments deciding to let off the petitioner with a mere warning Sri Appu had gone on leave preparatory to retirement in protest. After taking this step Sri Appu wrote a letter dated March 3, 1982 to the Prime Minister in which he expressed grave concern at the action of the Government in dismissing the whole affair by ruggesting that a mere warning to the petitioner would be sufficient. Sri Appu impressed upon the Prime Minister that a case involving such grave misconduet on the part of an I.A.S probationer ought not to have been disposed of in what he described a cavalier manner by the Ministry of Home Affairs. In the counter-affidavit as well as in the statements made on the floor of the House by Giani Zail Singh (the then Home Minister) and by Sri E. Venkatasubbhiah the Minister of State for Home Affairs, it stand conceded that it is this letter of Sri Appu which induced the Government to take a fresh look at the matter as a consequence of which the Government came to the conclusion that the appropriate order to be passed in this case would be one discharging the petitioner from the service on the ground that the petitioner was unsuitable to the same. An order was consequently passed by the Central Government on March 5, 1982 discharging the petitioner from the service under clause (b) of Rule 12 of the Indian Administrative Service (Probation) Rules, 1954.

11. Before we deal with the contentions of the learned counsel for the parties it would be convenient to extract here some of the relevant rules. Rule 11 of the Indian Administrative Service (Probation) Rules, 1954 reads thus:—

“11. Discipline and conduct— (1) while at the Academy, every probationer shall be under the disciplinary control of the director and shall obey such general or special orders as may be given by him from time to time.

(2) A probationer shall be liable to be removed or dismissed from Service if he fails to obey any order which he may receive from the Central Government or from any other competent authority of if in the opinion of the Central Government he was wilfully neglected his probationary studies or duties or is guilty of conduct unbecoming a member of the Service:

Provided that before any action is taken against a probationer under this sub-rule, the procedure prescribed in Rule 5 of the All India Services (Discipline and Appeal) Rules 1955, shall be followed:

Provided further that before any final orders are passed against a probationer under this sub-rule, the Commission shall be consulted.”

12. Rule 12 (under which the impugned order purports to have been passed) of the aforesaid rules provides:

“12. Discharge of a probationer-A probationer shall be liable to be discharged from the Service or as the case may be reverted to the permanent post, on which he holds a lien, or would hold a lien had it not been suspended, under the Rules applicable to him prior to his appointment to the Service.”

(a) if he fails to pass the final examination in the circumstances mentioned in Rule 9;

(b) if the Central Government is satisfied that the probationer was ineligible for recruitment to the service or is unsuitable for being a member of the Service, or

(bb) if he is found lacking in qualities of mind and character needed for the Service or in the constructive outlook and human sympathy needed in the public services generally; or

(c) if he fails to comply with any of the provisions of these rules.”

13. For the petitioner Sri S.S Bhatnagar challenged the impugned order mainly on the ground that though the order appears to be, on its face, innocuous, in truth it is an order of removal passed under sub-rule (2) of Rule 11 without following the procedure prescribed under Rule 5 of All India Services (Discipline and Appeal) Rules, 1955 and without giving to the petitioner the opportunity contemplated under Article 311(2) of the Constitution.

14. It was not disputed by the respondents that no opportunity was afforded to the petitioner either under Rule 5 of the All India Services (Discipline and Appeal) Rules 1955 or under Article 311(2) of the Constitution before the impugned order of discharge was passed against the petitioner.

15. Elaborating the above contention Sri S.S Bhatnagar submitted that from the letters of Sri Appu dated October 28, 1981 addressed to the Secretary to the Government of India, Ministry of Home Affairs written immediately on the conclusion of the aforesaid enquiry into the episode mentioned above and that dated March 3, 1982 addressed to the Prime Minister as well as the statements made in the Lok Sabha by the Home Minister as well as the Minister for State for Home Affairs, the conclusion was inescapable that the alleged misconduct and misbehaviour of the petitioner said to have been committed by the petitioner in the course of the trekking mission was the direct cause and foundation of the impugned action and consequently it must be held that the impugned order is an order of punishment removing the petitioner from Service and not an innocent order of discharge under Clause (b) of Rule 12.

16. Sri Jagdish Swarup, learned counsel for the Union of India, countered these submissions by submitting that the impugned action squarely fell within Rule 12(b), having been passed on the ground that the petitioner was unsuitable for being a member of the Service and this conclusion, learned counsel, urged, was based on considerations relevant to the enquiry whether the petitioner was suitable for being a member of the Service. He submitted that it is not for this Court to Judge whether or not the petitioner was suitable for the Service.

17. Both sides cited a large number of authorities on the question as regards when an order of discharge which is innocuous on its face may be regarded as an order of punishment so as to attract Article 311(2) of the Constitution. It is, however, not necessary to deal with each of those cases, in our opinion, a recent pronouncement of the Supreme Court in the case of Anoop Jaiswal v. Government of India in Civil Appeal No. 3040 of 1982, rendered on January 24, 1984, completely concludes the controversy. The decision is directly in point and its facts are in pari materia with those of the present case. This decision itself is based on a very authoritative pronouncement of the Supreme Court in the case of Shamsher Singh v. The State of Punjab . 1974 2 SCC 831. The decision was rendered by a constitution Bench consisting of seven learned Judges. The entire law on the subject of this controversy was analysed in considerable depth. Chief Justice Ray speaking for the Court in Shamsher Singh's case summed up the law thus:

“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.

Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is a suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other defect not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal or an inquiry. But in those cases the authority may hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2) he can claim, protection. (emphasis added)

18. His Lordship the Chief Justice then proceeded to examine the facts of the case and held that the order of termination was passed by way of punishment inasmuch as the enquiry officer had recorded statements of witnesses behind the back of concerned officer in respect of certain allegations of misconduct and had, on that basis, made a report to the High Court which, in its turn, recommended to the Government on the basis of that report that the officer was not suitable to be retained in Service. This recommendation had resulted in the discharge of the officer which, the Supreme Court held was in the background of the aforesaid facts, clearly one amounting to removal from Service.

19. From an analysis on the decision in Shamsher Singh's case, it seems to us fairly settled that where an order of discharge is based on an enquiry into specific allegations of misconduct, inefficiency or corruption and the like in contradistinction to a general enquiry which may be conducted by the authority with a view to satisfying himself whether on account of inadequacy for the job or for any temperamental or other failing not involving moral turpitude, the petitioner is unsuitable for the job, the order of discharge, though innocent on its face, shall amount to an order of punishment so as to attract Article 311(2).

20. Their Lordships of the Supreme Court in Anoop Jaiswal's case applied the dictum of Shamsher Singh's case to the Facts of that case and observed as follows:

“In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymnasium and acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non committal, it cannot stand alone, though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character, if on reading the two together the court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.”

21. Their Lordships further observed:

“As narration of the facts of the case leaves no doubt that the alleged act of misconduct on June 22, 1981 was the real foundation for the action taken against the appellant and that the other instances stated in the course of the counter affidavit are mere allegations which are put forward only for purposes of strenthening the defence which is otherwise very weak. The case is one which attracted Article 311(2) of the Constitution as the impugned order amounts to a termination of service by way of punishment and an enquiry should have been held in accordance with the said constitutional provision.”

(emphasis added).

22. The facts of the present case are, in our opinion, indistinguishable from those of Anoop Jaiswal's case. Like the present case, there also the petitioner was a probationer governed by the Indian Police Service (Probation) Rules 1954; Rules 11 and 12 of which are identical with those of the rules 11 and 12 of the Indian Administrative Service (Probation) Rules, 1954. There also, like the present case, Anoop Jaiswal was discharged-in the middle of the period of probation from service by simple order of termination which did not, on its face, carry any stigma but which had been passed as a result of an enquiry conducted behind the back of the probationer into specific acts of misconduct which was the real foundation for the action taken against the probationer. In Anoop Jaiswal's case also the Director had written to the Central Government on the basis of an enquiry conducted exparte that the petitioner was guilty of an act of misconduct and on the basis of that report the order of discharge was passed by the Central Government under rule 12.

23. In the present case the impugned order of discharge was passed entirely on the basis of the allegations of misconduct and misbehaviour said to have been committed by the petitioner in the course of trekking mission mentioned above. In paragraph xxxiii of the counter affidavit filed on behalf of the Government in this case as well as in the statements made by the Home Minister and the Minister of State for Home Affairs in parliament, the clear stand taken by the Government was that the subsequent decision taken by the Central government to discharge the petitioner from service had been taken in consequence of Sri Appu's letter dated March 3, 1982 addressed to the Prime Minister which had highlighted certain aspects of the case.

24. The contents of Sri Appu's letter dated March 3, 1982 therefore, assume considerable importance. In this letter Sri Appu said that the petitioner was guilty of gross misconduct and that he had in the course of the trek ‘committed several culpable offences while under the influence of alcohol’. He further observed: ‘I took that stand because I was convinced that if a probationer who had indulged in such gross misbehaviour was let off lightly, it would become impossible to maintain the desired level of discipline at the Academy and that the Director and Faculty would lose all credibility’. He said that the decision of the Central Government to let off the petitioner with a mere warning inspite of his grave misconduct would have disastrous effect on discipline and morale in the Service in general and at the National Academy in particular.

25. Shorn of details, the substance of Sri Appu's letter is that the petitioner was, in view of his behaviour towards other probationers accompanying him in the trek, was guilty of conduct which was unbecoming of a member of the Service. The point which was stressed by Sri Appu was that the petitioner was guilty of such gross misconduct in the course of the trek that he was wholly unworthy of this Service and that hie continuance in the Service would have disastrous effect on the discipline and morale in the Service as well as in the National Academy. It is this letter and this aspect which, on the own showing of the respondents, had induced the Government to revise its earlier decision and to discharge the petitioner from service. That being so, the conclusion is incapable that the allegations of misconduct were the cause and direct foundation of the impugned action. The sequence of events and the attending circumstances, the statements made by the members of the Government in Lok Sabha, the opinion expressed by the Director in his report to the Ministry as well as the letter addressed by him to the Prime Minister, all lead to the conclusion that in truth and substance, the petitioner was being discharged on the ground that he was guilty of conduct which was unbecoming of a member of the Service that is misconduct pure and simple.

26. Sri Jagdish Swarup, however, strenuously argued that the impugned action was taken on the ground that the petitioner was found unsuitable for the Service. He submitted that some fact finding enquiry had to be instituted in order to assess whether or not the petitioner was suitable for Service. The enquiry which was conducted against the petitioner was in the nature of a preliminary fact finding enquiry with a view only to ascertain the suitability of the petitioner. Consequently, he submitted that the mere fact that the petitioner was discharged following such enquiry would not, per se, lead to the inference that the petitioner was being punished.

27. We regret our inability to accept the above contentions. As mentioned above, a distinction has to be drawn between an enquiry made generally to assess the suitability of a probationer before being confirmed in the Service and an enquiry which is instituted to investigate specific allegations of misconduct or conduct involving moral turpitude. This distinction was stressed and recognized both in Shamsher Singh's case as well as in Anoop Jaiswai's case. It was also emphasized in yet another case, namely, Appar Apar Singh v. The State of Punjab . 1970 III S.C 338 at p. 348 para 27. Their lordships observed at page 349:

“If the State is able to establish its plea that the enquiry conducted by the two Deputy Directors was only to find out the suitability of the appellant to be continued as principal and that as he was found to be unsuitable he was reverted then the order cannot be considered to be by way of punishment. We, however, find considerable difficulty in accepting this plea of the State. From the facts given by us in setting out the circumstances leading to the filing of the writ petition, it is clear that the enquiry conducted by the two Deputy Directors was not with a view to find out the suitability or otherwise of the appellant to be continued as Principal. On the other hand, the enquiry was held with a view to investigate into the allegations made by the Principal against some of the members of the staff and the allegations made by Prof. Kapur against the appellant.”

28. In the present case, the enquiry fell into the latter category. The petitioner was on the very threshold of his training in the Academy as a probationer. The enquiry instituted was in regard to specific allegations of misconduct and misbehaviour involving moral turpitude which, if found true, would undoubtedly be unbecoming of a member of the Service.

29. Sri Jagdish Swarup next submitted that the opinion whether the petitioner is suitable for the Service or not within the meaning of Rule’ 12(b) was founded on the satisfaction of the Central Government and unless it is found that no reasonable person could have formed that opinion it should not interfere with the impugned order.

30. We cannot agree. It is too late in the day to contend that this Court cannot go behind the form of the order and find out whether the order which is innocent on its face, is in substance one of the punishment and removing the probationer from Service. The law on the subject has now been firmly settled by a series of decisions in the Supreme Court. The ground on which we are persuaded to interfere, is that though the impugned order purports to be an innocent order of discharge under Rule 12(b) in truth it is one intended to punish the probationer by way of removal on the ground that he was guilty of conduct which was unbecoming of a member of the Service. We are not interfering with the order by substituting our own opinion for that of the Government as regards the suitability of the petitioner to be retained in Service.

31. We may, however, add that if the facts stated in the letter of Sri Appu as well as in his report to the Secretary of the Ministry had been established after holding a proper enquiry by giving an opportunity to the petitioner to defend himself against the charges of misconduct and if the Government had then passed an order of removal under Rule 11(2), there would have hardly existed any ground for interfering with the discretion exercised by the Government, as the allegations were of a serious nature and were such that if found true the conclusion that the petitioner deserved to be removed on the ground that he was guilty of conduct which was unbecoming of a member of the Service, may have been wholly unexceptionable, having regard to high degree of rectitude and standard of behaviour which is quite justly expected of a member of such a coveted Service. But that, however, is not the case here inasmuch as no enquiry either under Rule 5 of the All India Services (Discipline and Appeal) Rules, 1955 or under Article 311(2) of the Constitution was admittedly instituted in the present case. The impugned order is being struck down only on the ground of non-compliance of these provisions.

32. Sri Jagdish Swarup's next argument was that under Explanation (viii) to Rule 6 of the All India Civil Service (Discipline and Appeal) Rules, 1969, termination of the Service, appointed on probation during or at end of the period of probation in accordance with the terms of the Service or the Rules and orders covering such probationer could not amount to penalty within the meaning of Rule 6 which lays down the minor or major penalties which can be inflicted on a member of an All India Service.

33. We find no merit in this contention. Explanation (viii) to Rule 6 referred to above has no application to a case where the order is in substance one of removal though cloaked as an order of termination of the service simpliciter. Further Explanation (viii) cannot override the guarantee enshrined under Article 311(2) of the Constitution.

34. Sri Jagdish Swarup next submitted that the speeches made by the members of the Government in Lok Sabha could not be equated with the decision of the Central Government. Learned counsel placed reliance on Article 53 of the Constitution and submitted that in order that a decision may be characterized as the order passed by the Central Government it must be expressed to be made in the name of the President of India. The argument has, in our opinion, no substance. It is settled law that in order to judge the real nature of an order of termination surrounding and attendant circumstances are relevant. Consequently the statements made by the members of the Government in Lok Sabha characterising the impugned action as punishment designed to terminate the services of the petitioner could not be dismissed as in relevant or inadmissible merely because they have not been expressed in the form of a formal order. In any case, in the counter affidavit filed in this case the clear stand taken by the Government is that the impugned action was taken because of the letter of Sri Appu addressed to the Prime Minister in which certain aspects had been stressed as necessary for maintaining the best traditions of the Service. The aspect stressed was that the petitioner was guilty of conduct which was unworthy of a member of the Service and that he should, therefore, be discharged.

35. Sri Jagdish Swarup submitted that Anoop Jaiswal's case was distinguishable. According to him, it was a case in which the Director of the Academy wanted to punish Jaiswal and he wanted to make Jaiswal's case an example for others in the Academy. In that background the Supreme Court held that the order of discharge was one which was passed by way of punishment.

36. We are not impressed by this argument. In our opinion, the fact of Anoop Jaiswal's case are indistinguishable. In the present case also the argument is the same, namely, that the Director wanted to punish the petitioner for what he considered an act of misconduct on the part of the petitioner which was unbecoming of a member of the Service.

37. Sri Jagdish Swarup also placed reliance on two decisions of the Supreme Court reported in Oil and Natural Gas Commission v. Dr. Md. S. Iskander Ali . 1980 3 SCC 428 and Champaklal Chimman lal v. Union of India . A.I.R 1964 S.C 1854. neither of which to our mind, lends any support to the respondents' case. The decision in Oil and Natural Gas Commissions case (supra) is clearly distinguishable on the ground that was a case where the appointment of the officer could be terminated at any time by one month's notice to be given on either side, unlike the case of I.A.S probationers who have a right to the post which can be put an end to only in accordance with Rules 11 and 12 read with the All India Services (Discipline and Appeal) Rules, 1969, The decision in the case of Champaklal Chimmanlal Shah (supra) is equally unhelpful. In that case, a distinction was drawn between a preliminary enquiry and a formal enquiry into the charges of misconduct, etc. That such a distinction exists admits of no doubt. Our conclusion in the present case, however, is that in the present case the enquiry was not one confined to judge the suitability of the petitioner as a probationer to be confirmed in the Service but one launched at the very threshold of the training into concrete allegations of misconduct and misbehaviour during the trekking mission.

38. We may now dispose of a subsidiary submission made on behalf of the petitioner. The argument was that the Central Government having once decided to let off the petitioner in respect of the same allegations of misconduct by a warning to be issued to the petitioner and the said decision of the Government as conveyed by the letter of the Secretary dated February 4, 1982 to the Director having been communicated to the petitioner and he was made aware of the contents thereof, it was not open to the Central Government to inflict another punishment.

39. We are unable to agree. It is not disputed that in point of fact the warning was never issued or administered to the petitioner nor did it go down in the service records. The decision was never implemented. Further a mere non-recordable warning has not been mentioned amongst the punishments specified under Rule 6 of the All India Service (Discipline and Appeal) Rules, 1969.

40. The above discussion disposes of the various points urged on either side.

41. Our conclusion, therefore, is “that the alleged acts of misconduct said to have been committed by the petitioner during the trek were the direct cause and foundation of the impugned order of discharge dated March 3, 1982 and inasmuch as no-opportunity was given to the petitioner to defend himself either under Article 311(2) of the Constitution or under Rule 5 of the All India Services (Discipline and Appeal) Rules, 1969, the same is liable to be struck down as being void and ineffectual in law. As the impugned order is being struck down only on the ground of non-compliance of provisions of Article 311(2) of the Constitution and Rule 11(2) of the Indian Administrative Service (Probation) Rules, 1954, it is being made clear that it will be open to the Central Government to take disciplinary proceedings against the petitioner even now under the aforesaid provisions for the alleged misconduct of the petitioner. While the interim matter was being disposed of by this Court on May 14, 1982, Sri Jagdish Swarup appearing for the respondents gave an undertaking upon instructions given to him by Smt. Chitra Chopra, Deputy Secretary to the Government, Ministry of Home Affairs that in case the writ petition succeeds the respondents shall hold for the petitioner a special examination within the meaning of Rule 8 of the Indian Administrative Service (Probation) Rules, 1954 and that the petitioner will be permitted to complete the remainder of the training at the Academy and to state that the same would also be taken into consideration for the purposes of determining his inter se seniority amongst the probationers with the year of allotment, 1981 so that the seniority of the petitioner amongst the probationers of that year is not disturbed. The respondents shall, therefore, abide by that undertaking and act accordingly.

42. In the premise, the petition succeeds and is allowed. The impugned order dated March 5, 1982 passed by the Central Government (Annexure VIII) to the writ petition) is quashed. The petitioner shall now be re-instated in Service forthwith and the Government shall abide by the undertaking referred to hereinabove. There will, however, be no order as to costs.