civil appellate jurisdiction civil appeal number 301 of 1959.
appeal by special leave from the judgment and order dated
december 10 1958 of the allahabad high companyrt in first
appeal number 382 of 1958 arising out of the judgment and
order dated august 6 1958 of the election tribunal
kanpur in election petition number 284 of 1957.

c. chatterjee r. k. garg s. c. agarwal d. p. singh v.

sayid muhammad janardan sharma and m. k. ramamurthi
for the appellant. v. viswanatha sastri and k. p. gupta for the
respondent. 1959. numberember 20. the judgment of the companyrt was delivered
by
subba rao j.-this appeal by special leave is directed
against the judgment of the high companyrt of judicature at
allahabad setting aside that of the election tribunal
kanpur dismissing the petition filed by the respondent for
setting aside the election of the appellant as a member of
the parliament from the kanpur companystituency. in february-march 1957 elections were held to fill up a
parliamentary seat from the single-member companystituency number
331 kanpur. sri s. m. banerji sri suraj prasad and four
others were candidates for the said election. the said
persons filed their numberination papers between 19th and 29th
january 1957. the appellant was employed as supervisora
grade at the government ammunition factory kirkee and was
dismissed from service on january 24 1956 for a reason
other than companyruption or disloyalty to the state and he was
duly qualified to stand for the election. he also filed his
numberination paper within the prescribed time and ex facie it
complied with all the provisions of the representation of
the people act 1951  43 of 1951  as amended by act xxvii
of 1956  hereinafter called the act  and did number disclose
any disqualifications. the returning officer held scrutiny
of the numberination papers on february 1 1957. as no
objection was taken to the appellants numberination the
returning officer accepted it under s. 36 of the act without
making any enquiry. the polling took place on march 6
1957 and the result was declared on march 13 1957. the
appellant having secured the largest member of votes was
declared duly -elected. on april 24 1957 the respondent
who is one of the voters in the said companystituency presented
a petition before the election companymission new delhi
praying that the election of the appellant be declared void. in the petition he alleged ten grounds to sustain his
petition. the election companymission companystituted an election
tribunal in the manner prescribed by the act and referred
the petition to the said tribunal for trial. on july 17
1957 i.e. after the prescribed period
of limitation of 45 days had expired the respondent filed
an application for amendment of the election petition. the
amendments sought to be made in the election petition
were as follows

in paragraph number 5 clause i figure 9 between the
words under section and clause is a typing mistake for
figure 33. in place of figure
 9  figure 33 be substituted. in paragraph number 5 d  at the end of the paragraph the
following sentence be added
the numberination paper of the respondent presented before the
returning officer was number accompanied by a certificate of
the election companymission to the effect that he has number been
dismissed for disloyalty or companyruption. the improper
acceptance of the numberination paper being that of the
returned candidate there is a presumption that the result
of the election has been materially affected. on august 3 1957 the respondent filed anumberher application
for amendment seeking the second amendment in an
abbreviated form. the proposed amendment was as follows

in paragraph number 5 d  at the end of paragraph the
following sentence be added in the petition
and such a certificate did number accompany the numberination
paper of the respondent and the acceptance of his numberination
paper materially affected the result of the election. by an order dated august 12 1957 the election tribunal
dismissed the petition on the -round that the amendments
sought to introduce a new ground after the prescribed period
of limitation and therefore it had numberpower to allow the
same. after dismissing the application the tribunal took
up the main petition for disposal and after recording the
findings on the issues raised dismissed the same with
costs. against the said judgment the respondent preferred
an appeal under s. 116a of the act to the high companyrt. before the high companyrt the learned companynsel for the
respondent withdrew the prayer for amendment of
sub-paragraph  1  of paragraph  5  of the election petition
and companyfined his relief only to the amendment asked for in
paragraph 5 d  of the election petition i.e. he sought to
bring in the amendment under the head improper acceptance
of the numberination paper. the high companyrt found on the
construction of the pleadings that the allegations found in
the original petition were sufficient to bring in the case
under s. 100 1  d  i  of the act i.e. under the head
improper acceptance and therefore the amendment asked
for was only a clarification but number an introduction of a
new ground in the result the high companyrt set aside the
order of the tribunal and directed it to decide the issues
that arose out of the averment made in the amended para. 5 d  of the election petition. the present appeal was filed
by special leave against the said judgment of the high
court. the companytentions of the learned companynsel mr. n. c.
chatterjee for the appellant may be briefly put thus the
ground for relief in the election petition was based on
improper acceptance of the appellants numberination within the
meaning of s. 100 1  d  i  of the act and numberalternative
ground tinder sub-cl.  iv  of cl.  d  s. 100 1  was alleged. there was proper acceptance of the numberination paper and
therefore the high companyrt or the tribunal had numberpower to
introduce by amendment a new ground namely that the result
of the election had been materially affected by the number-
compliance with the provisions of the act and particularly
when the ground based upon s. 33 of the act. was given up by
the respondent. he relies upon for the first proposition on the decision of
this companyrt in durga shankar mehta v. thakur raghuraj singh
 1  and for the second on the decision of this companyrt in
harish chandra bajpai v. triloki singh  2 . mr. a. v. viswanatha sastry the learned companynsel for the
respondent companytends that the said two decisions were
wrongly decided and require reconsideration and that in
any event the amendment asked for clearly falls within the
scope of the later decision. he
 1  1955 1 s.c.r. 267.  2  1957 s.c.r. 370.
further companytends that on a fair reading of the relevant
allegations in the petition as originally presented it
would be clear that the respondent stated all the necessary
facts to sustain the ground he had taken in the amendment
petition and that by the amendment he was only seeking to
clarify the said ground. in any view he argues that the
appellate companyrt on a careful companystruction of the pleadings
has held that the petition in substance disclosed the said
ground and the question of companyrectness of the said decision
does number legitimately fall within the discretionary
jurisdiction of this companyrt under art. 136 of the
constitution. at the outset the relevant provisions of the act may be
numbericed. the said provisions read
s. 9  3  if any question is raised as to whether a
person who having held any office referred to in clause  f
 of section 7 has been dismissed is disqualified under that
clause for being chosen as a member of either house of
parliament or of the legislative assembly or legislative
council of a state the production of a certificate issued
in the prescribed manner by the election companymission to the
effect that such person has number been dismissed for
corruption or disloyalty to the state shall be companyclusive
proof that -he is number disqualified under that clause. s. 33  3  where the candidate is a person who having
held any office referred-to in clause  f  of section 7 has
been dismissed and a period of five years has number elapsed
since the dismissal such person shall number be deemed to be
duly numberinated as a candidate unless his numberination paper is
accompanied by a certificate issued in the prescribed manner
by the election companymission to the effect that he has number
been dismissed for companyruption or disloyalty to the state. s. 36  1  on the date fixed for the scrutiny of
numberinations under section 30 the candidates their election
agents one proposer of each candidate and one other person
duly authorized in writing by each candidate but numberother
person  may attend at such
time and place as the returning officer may appoint and the
returning officer shall give them all reasonable facilities
for examining the numberination papers of all candidates which
have been delivered within the time and in the manner laid
down in section 33.

the returning officer shall then examine the numberination
papers and shall decide all objections which may be made to
any numberination and may either on such objection or on his
own motion after such summary inquiry if any as he thinks
necessary reject any numberination on any of the following
grounds-
 a
 b  that there has been a failure to companyply with any of the
provisions of section 33 or section 34 or
 c
s. 100  1  subject to the provisions of sub-section  2
if the tribunal is of opinion-

 d  that the result of the election in so far as it
concerns a returned candidate has been materially affected-

by the improper acceptance of any numberination or

by any number-compliance with the provisions of the
constitution or of this act or of any other rules or orders
under this act
the tribunal shall declare the election of the returned
candidate to be void. the foregoing provisions so far relevent to the present
enquiry may be summarised thus if a candidate has been
dismissed from government service and a period of five years
has number elapsed since dismissal- he will have to file along
with the numberination paper a certificate issued in the
prescribed manner by the election companymission to the effect
that he has number been dismissed for companyruption or disloyalty
to the state. if it has number been done the returning
officer either suo motu or on objections raised by the
opposite party has to reject the numberination. if the
numberination paper does number disclose any such defect and if
the
returning officer has numberknumberledge of that fact he has no
option but to accept the numberination. the returning officer
may improperly accept a numberination paper though it
discloses the said defect and though an objection is
raised to its reception on that ground. section
100 1  d  i  of the act deals with improper acceptance of
any numberination and s. 100 1  d  iv  permits an attack on the
ground among others of number-compliance with the provisions
of the act. before we companysider the companytentions of the parties it would
be companyvenient to appreciate the true scope of the two
decisions of this companyrt in the light of the arguments
advanced by the learned companynsel. the first -decision is in
durga shankar mehta v. thakur raghuraj singh  1 . this
decision turns upon the provisions of sub-s.  1  c  and sub-
s.  2  c  of s. 100 of the representation of the people act
1951 before it was amended by act xxvii of 1956. sub-s.
 1  c  and sub-s.  2  c  in so far as they are material to
the present discussion companyrespond to s. 100 1  d  i  and s.
100 1  d  iv  respectively of the amended act. this case
arose out of an election held in december 1951 for the
double member lakhnadon legislative assembly companystituency in
madhya pradesh one of the seats being reserved for
scheduled tribes. the appellant and respondents 1 35 and
7 therein were duly numberinated candidates for the general
seat in the said companystituency while respondents number. 2 4
and 6 were numberinated for the reserved seat. numberobjection
was taken before the returning officer in respect of the
numberination of either the appellant or respondent number 2. the
appellant and respondent number 2 were declared elected to the
general and reserved seat respectively. the respondent number
1 filed an election petition against the appellant and the
other respondents for setting aside the election as wholly
void. one of the allegations was that the respondent number 2
was at all material times under 25 years of age and was
consequently number qualified to be chosen to fill a seat in
the legislative assembly of a state under art. 173 of the
constitution. the election tribunal held that the
 1   1955  1 s.c.r. 267.
acceptance by the returning officer of the numberination of
respondent number 2 amounted to an improper acceptance of
numberination within the meaning of s. 100 1  c  of the act
and on that ground declared that the entire election was
void. the candidate who was elected to the general seat
preferred an appeal to this companyrt and companytended that his
numberination had been properly accepted by the returning
officer and therefore if respondent number 2 was number duly
qualified to be elected his election alone should be
declared void on the ground that such disqualification shall
fall under sub-s.  2  c  of s. 100 and number under sub-s.
 1  c  thereof this companyrt accepted the companytention and in
that companytext defined the import of improper acceptance
within the meaning of s. 100 1  c  of the act. mukherjea
j. as he then was delivering the judgment of the companyrt
observed at p. 277
if the want of qualification of a candidate does number
appear on the face of the numberination paper or of the
electoral roll but is a matter which companyld be established
only by evidence an enquiry at the stage of scrutiny of the
numberination papers is required under the act only if there is
any objection to the numberination. the returning-officer is
then bound to make such enquiry as he thinks proper on the
result of which he can either accept or reject the
numberination. but when the candidate appears to be properly
qualified on the face of the electoral roll and the
numberination paper and numberobjection is raised to the
numberination the returning officer has numberother alternative
but to accept the numberination. this would be apparent from
section 36 subsection  7  of the act . . the learned judge proceeded to state at p. 278
it would have been an improper acceptance if the want of
qulification was apparent on the electoral roll itself or on
the face of the numberination paper and the returning officer
overlooked that defect or if any objection was raised and
enquiry made as to the absence of qualification in the
candidate and the returning officer came to a wrong
conclusion on the materials placed before him. when neither
of these things happened the acceptance of the
numberination by the returning officer must be deemed to be a
proper acceptance. this judgment therefore is a clear authority for the
proposition that if the want of qualification does number
appear on the face of the numberination paper and if no
objection is raised on that ground before the returning
officer the acceptance of the numberination must be deemed to
be a proper acceptance. mr. a.v. viswanatha sastry the learned companynsel for the
respondent attacks the companyrectness of this decision. broadly stated his criticism is that the proceedings before
the returning officer are summary proceeding and that the
election petition is number an appeal from the order of the
returning officer but is an original petition seeking to
set aside the election and that in such a petition the
aggrieved party has the right to seek to set aside the
election on all or any of the grounds mentioned in s. 100 of
the act and that as one of the grounds is the improper
acceptance of the numberination paper he companyld establish by
evidence that the acceptance of the numberination by the
returning officer was in the derogation of the statutory
provisions such as those relating to the absence of
qualification in the candidate or the filing of his
numberination paper unaccompanied by a certificate within the
meaning of s. 33 3  of the act. in support of this
contention reliance is placed upon anumberher decision of this
court in veluswami v. raja nainar  1 . the point raised and
decided in that case was whether an enquiry before the
election tribunal was number restricted to the material placed
before the returning officer relating to a ground but all
evidence bearing on that ground companyld be adduced before that
tribunal. there unlike here at the time of scrutiny of the
numberinations objection was taken to the numberination of the
candidate on the ground that he was the head master of the
national training school tiruchendur which was a govern-
ment-aided school and therefore be was disqualified under
s. 7 cls.  d  and  e  of the act. the returning

a.i.r. 1959 s.c. 422.
officer upheld the objection. in a petition to set aside
the election the returned candidate pleaded that the
candidate whose numberination was rejected was number qualified to
be chosen number merely on the ground put forward before the
returning officer but also on other grounds. this companyrt
held that. it is open to a party to put forward all grounds
in support or negation of the claim subject only to such
limitations as may be found in the act numberwithstanding that
some of the grounds were number taken before the returning
officer. the reason for the decision is found at p. 426 and
it reads
an election petition is an original proceeding instituted
by the presentation of a petition under s. 81 of the
act all the parties have the right to adduce
evidence and that is of the essence of an original
proceeding as companytrasted with a proceeding by way of
appeal. that being the character of the proceedings the
rule applicable is that which governs the trial of all
original proceedings that is it is open to a party to put
forward all grounds in support of or negation of the claim
subject only to such limitations as may be found in the
act. the learned judge elaborated the point at a subsequent stage
of the judgment thus
the enquiry which a returning officer has to make under s.
36 is summary in character. he may make such summary
enquiry if any as he thinks necessary be can act suo
motu. such being the nature of the enquiry the right which
is given to a party under s. 100 1  c  and s. 100 1  d  i
to challenge the propriety of an order of rejection or
acceptance of a numberination paper would become illusory if
the tribunal is to base its decision only on the materials
placed before the returning officer. when the attention of the companyrt was invited to the decision
in durga shankar mehta v. thakur raghuraj singh 1  the
court distinguished that decision in the following manner
this is number a direct pronumberncement on the point number in
controversy and that is companyceded.  1  1955 1 s.c.r. 267.
the two decisions can stand together and they deal with two
different situations in the former numberobjection was
raised at all to the numberination while in the
latter an objection was raised on the ground of
disqualification but in the election petition additional
grounds of disqualification were alleged and sought to be
proved one is companycerned with a case of improper acceptance
and the other with a case of improper rejection. though
some of the observations in the later decision may well have
been advanced to companye to a companytrary companyclusion in the
earlier decision venkatarama ayyar j. who was party to
both the decisions distinguished the earlier one on the
ground that it was number a direct pronumberncement on the
question raised in the later. the earlier decision is that
of five judges but the later is of three judges. the
learned judges who decided the later case did number see any
conflict between their decision and that of the earlier one. though there is some force in the argument advanced by mr.

v. viswanatha sastry and if it were res integra some
of us might be inclined number to agree with the reasoning and
the companyclusion of the earlier judgment this companyrt is bound
by its earlier decision and we do number see any justification
to refer the question to a larger bench particularly as we
have companye to the companyclusion that the high companyrt was number
justified in interfering with the order passed by the
tribunal in its discretion disallowing the material
amendment. the second case is a decision of four judges and it defines
the powers of the election tribunal in the matter of
amendment of pleadings. this decision also turns upon the
relevant provisions of act 43 of 1951 before it was amended
by act 27 of 1956. section 83 3  of the act before the
amendment companyresponds to s. 90 5  of the amended act. in
other respects so far as it is material to the question
raised numberchange has been introduced in the other relevant
sections. in this case the respondent in the appeal filed
an election petition challenging the election of the
appellants to the u.p. legislative assembly on the ground
that they had companymitted companyrupt practices the material
allegations being  i  that the appellants companyld in the
furtherance of their election enlist the support of certain
government servants  and  ii  that the appellant number 1 had
employed two persons in excess of the prescribed number for
his election purposes. numberlist of particulars of companyrupt
practices was attached to the petition. long after the
period of limitation prescribed for the filing of election
petitions the respondent applied for amendment of his
petition by adding the names of certain village headmen
 mukhias  as having worked for the appellants and later on
becoming their polling agents. the election tribunal
allowed the amendment on the ground that the allegations
sought to be introduced by the amendment were mere
particulars of the charge already made. holding that
corrupt practice had been companymitted by the appellants it
declared their election void under s. 100 2  b  of the act. the appellants preferred an appeal against that order to
this companyrt and companytended that the election tribunal had no
power either under s. 83 3  of the act or under order vi
rule 17 of the companye of civil procedure to allow the
amendment. in that companytext this companyrt elaborately
considered the scope of the power of the election tribunal
to amend the pleadings in an election dispute and summarized
its views in the following two propositions at p. 392

under s. 83 3  the tribunal has power to allow
particulars in respect of illegal or companyrupt practices to be
amended provided the petition itself specifies the grounds
or charges and this power extends to permitting new
instances to be given. the tribunal has power under 0. vi r. 17 to order
amendment of a petition but that power cannumber be exercised
so as to permit new grounds or charges to be raised or to so
alter its character as to make it in substance a new
petition if a fresh petition on those allegations will then
be barred. on the basis of those propositions this companyrt held that the
petition as originally presented did number allege that the
appellants had companymitted companyrupt practices and therefore
that the allegations sought to be introduced
by the amendment namely that two village headmen s. worked
for the appellants and later on became their polling agents
so radically altered the character of the petition as
originally framed as to make it practically a new petition
and so it was number within the power of the tribunal to allow
amendments of that kind. even if the tribunal had the power
under 0. vi r. 17 of the companye of civil procedure to permit
an amendment raising a new charge the companyrt held that it
did number under the circumstances exercise a sound and
judicial discretion in permitting the amendment in question. it may be numbericed that in that case the question turned upon
the companystruction of s. 83 sub-ss.  2  and  3  of the act. though in that case this companyrt was companycerned with the powers
of an election tribunal to amend the petition beyond the
period of limitation the discussion of the companyrt companyered a
wider field presumably because the companyrt intended to
settle the principles governing the power of election
tribunals to amend pleadings with a view to prevent
confusion and to stabilize the procedure. this companyrt
rejected the argument that 0. vi r. 17 of the civil
procedure companye does number apply to election petitions. it was
observed at p. 389
we are accordingly of opinion that the application of 0.
vi r. 17 civil procedure companye to the proceedings before
the tribunal is number excluded by s. 83 3 . it was companytended for the appellant in that case that even if
s. 83 3  of the act did number exclude the application of 0.
vi r. 17 civil procedure companye to the proceedings before
the tribunal the exercise of the power under that rule
must nevertheless be subject to the companyditions prescribed
by s. 81 for presentation of an election petition that one
of those companyditions was that it should be presented within
the time allowed therefor and that accordingly no
amendment should be allowed which would have the effect of
defeating that provision. after companysidering the english
decisions on the statutory provisions which are pari materia
with our enactments the companyrt held that the election
tribunal had numberpower to permit a new ground to be
raised beyond the time of limitation prescribed by s. 81 of
the act. mr. a. v. viswanatha sastry companytended that the
learned judges having rightly companyceded the power of the
election tribunal to amend the pleadings under 0. vi r. 17
civil procedure companye went wrong in limiting that power in
the way they did and that the reason advanced by them in
limiting that power equally applies to the pleadings in a
suit for it is said under the indian limitation act
every suit filed beyond the prescribed period of limitation
shall be dismissed although limitation has number been set up
as a defence. there is numberdoubt some force in this
contention but this argument was presumably advanced before
the learned judges and was negatived on the following ground
stated at p. 392
the tribunal sought to get over this difficulty by relying
on the principle well-established with reference to
amendments under 0. vi r. 17 that the fact that a suit on
the claim sought to be raised would be barred on the date of
the application would be a material element in deciding
whether it should be allowed or number but would number affect the
jurisdiction of the companyrt to grant it in exceptional circum-
stances as laid down in charan das v. amir khan  1 . but
this is to ignumbere the restriction imposed by s. 90 2  that
the procedure of the companyrt under the companye of civil procedure
in which 0. vi r. 17 is companyprised is to apply subject to
the provisions of the act and the rules and there being no
power companyferred on the tribunal to extend the period of
limitation prescribed an order of amendment permitting a
new ground to be raised beyond the time limited by s. 81 and
r. 119 must companytravene those provisions and is in
consequence beyond the ambit of authority companyferred by s.
90 2 . this passage indicates that the learned judges were aware of
the argument number advanced and for the reason mentioned by
them namely that unlike a civil suit wherein the companyrt can
extend the period of limitation in a proper case the
tribunal has numbersuch power rejected the argument. we are
bound by this decision
 1   1920  l.r. 47 i.a. 255.
as this stage we must guard against one possible
misapprehension. companyrts and tribunals are companystituted to do
justice between the parties within the companyfines of statutory
limitations and undue emphasis on technicalities or
enlarging their scope would cramp their powers diminish
their effectiveness and defeat the very purpose
for which they are companystituted. we must make it clear that
within the limits prescribed by the decisions of this companyrt
the discretionary jurisdiction of the tribunals to amend the
pleadings is as extensive as that of a civil companyrt. the
same well-settled principles laid down in the matter of
amendments to the pleadings in a suit should also regulate
the exercise of the power of amendment by a tribunal this
aspect has number been ignumbered by this companyrt in the aforesaid
decision and the companyrt observed at p. 394
it is numberdoubt true that pleadings should number be too
strictly companystrued and that regard should be had to the
substance of the matter and number the form. the foregoing discussion yelds the following results  1
sub-cls.  i  and  iv-  of s. 100 11  d  of the act provide
for two distinct grounds the former for the case of improper
acceptance of any numberination and the latter for that of
number-compliance with the provisions of the companystitution or of
the act or of any rules or orders made under the act  2
when the candidate appears to be properly qualified on the
face of the electoral roll and the numberination paper and no
objection is raised to the numberination the acceptance of the
said numberination by the returning officer must be deemed to
be proper acceptance  3  even if there is a proper
acceptance it is open to the petitioner to question the
validity of the election -under s. 100 1  d  iv  on other
grounds namely that the candidate whose numberination was
accepted was number qualified at all or companyld number be deemed to
be duly numberinated as a candidate for the reason that he did
number companyply with the provisions of s. 33 3  of the act and
 4  if the second ground in substance is number taken in the
petition-substance is more important than form-the tribunal
has numberpower after the prescribed period of limitation for
the filing
of the petition to allow an amendment introducing the second
ground. with this background we shall proceed to scrutinize the
pleadings in the light of the rival companytentions. the
election petition companytains seven paragraphs. the relief
claimed is that the election of the appellant from the
parliamentary companystituency number 331 kanpur be declared
void. the first paragraph gives the credentials of the
petitioner to enable him to file the petition. paragraphs 2
and 3 give the sequence of events which ended in the
declaration of the appellant as duly elected from the
constituency to the parliament. paragraph 5 states that the
election of the appellant is void and is liable to be set
aside on the ten grounds among others specified therein. paragraph 6 states that the cause of action accrued to the
petitioner on or about january 29 1957 when the numberination
papers were filed for the said election and subsequent
thereto. number companying to the grounds in sub-para a   b  and
 c  of para 5 it is stated that the appellant had been
dismissed by government from service on charges of
disloyalty and gross misconduct on january 24 1956 but he
did number submit to the aid order and filed a writ petition in
the high companyrt at calcutta questioning the validity of the
said order that under the circumstances he should be
deemed to be a government servant and therefore he was number
competent to be numberinated as a candidate for election to
parliament. sub-paragraph  d  is the most important
paragraph to the present enquiry and therefore it may be
extracted in full. it reads
that apart from the above mentioned reasons the numberination
paper of the respondent was also improperly accepted by the
returning officer in-asmuch-as the respondent having been
dismissed from government service did number obtain a
certificate in the prescribed manner from the election
commission to the effect that he had number been dismissed for
corruption or disloyalty to the state. this sub-paragraph in clear and unambiguous terms raises the
ground of improper acceptance of the numberination paper by the
returning officer i.e. the ground
covered by s. 100 1  d  i  of the act. the reason for
sustaining the said ground is stated to be that having been
dismissed from government service he did number
obtain a certificate in the prescribed manner from the
election companymission. ex facie this sub-paragraph
does number refer to s. 33 3  or to the companytents of that sub-
section. a numberination paper may be accepted by the
returning officer in spite of one or other of the following
two defects  i  the candidate who has been dismissed may
have filed the numberination -paper without its being
accompanied by a certificate issued in the prescribed manner
by the election companymission to the effect that he has number
been dismissed from service for companyruption or dis loyalty to
the state vide s. 33 3  and  ii  the candidate has been
disqualified for being chosen as a member of parliament
vide s. 9 3 . in this subparagraph in support of the ground
that the numberination of the appellant was improperly
accepted reference was made to the second defect and number to
the first. that this must have been the intention of the
respondent is also made clear from the circumstance that in
sub-para  i  reference was made to the latter sub-section
but number to the former. the argument that the opening words
of sub-para  d  that apart  indicate that this is a
ground in addition to the ground based on the number-obtaining
of a certificate in the prescribed manner and therefore
should only refer to the number-accompaniment of a certificate
has numberforce for sub-paras  a   b  and  c  which precede
sub-para  d  raise a different point altogether namely
that numberwithstanding the dismissal as the appellant had
filed a petition in the high companyrt questioning the validity
of the order of dismissal he was still a government servant
on the crucial date. be it as it may the important point
to be numbericed is that sub-paragraph  d  raises a ground
under sub-cl.  i  and number under subcl.  iv  of s. 100 1  d
of the act and even if the facts mentioned therein are
disannexed from the ground they refer only to the
disqualification of the appellant to stand as a candidate
for the election and number to the procedural defect companyered by
s. 33 3  of the act. subparagraphs  e   f  and  g  relate
to the objections
which are number material for the present inquiry. sub-
paragraph  h  companytains a general statement that the
appellant was disqualified to be chosen to fill the parli-
mentary seat. sub-paragraph  i  specifically refers to s.
9 3  of the act. we are number also companycerned with the
allegations in -sub-para  j . the foregoing analysis of the allegations in the petition so
far as they are relevant to the question raised discloses
the following two circumstances  i  the ground taken in
the petition was that there was an improper acceptance of
the numberination companyered by s. 100 1  d  i  for the reason
that the appellant having been dismissed from government
service did number obtain a certificate in the prescribed
manner and  ii  there was numberground which would fall under
sub-cl.  iv  of s. 100 1  d  of the act. viz. that the
appellant was number to be deemed to be duly numberinated as a
candidate as his numberination paper was number accompanied by a
certificate issued in the prescribed manner by the election
commission to the effect that he had number been dismissed for
corruption or disloyalty to the state. in the application
for amendment which was filed after the prescribed period of
limitation two amendments were asked for-one to sub-para

of para 5 and the other to sub-para  d  thereof. the
former was for substituting the figure 33 for the figure
9 and the latter to introduce a statement in that
paragraph to the effect that the numberination paper was number
accompanied by the prescribed certificate. the subsequent
petition as we have already numbericed sought for the same
amendment to para  5  d  in an abbreviated form. but what
is important to numberice is that even the proposed amendment
sought to bring in the said statement under the ground of
improper acceptance and number under s. 100 1  d  i  of the
act. the appellant filed a companynter-affidavit opposing both
the amendments. the tribunal numbericed the judgment of this
court-and applied the principles laid down therein to the
facts before-it. it also companysidered in detail the
allegations in the petition and arrived at the following
findings  i  all what has been urged throughout is that
the respondent was a government servant or a
dismissed government servant and numbercertificate having been
obtained from the election companymission about his dismissal
number being for companyruption or disloyalty he was number eligible
for election as a candidate to the house of the people
and  ii  sub-section  3  of s. 33 which is a provision
laying down a certain procedure was never in the mind of the
petitioner while the petition was being drafted or prepared
and that is why we find numberreference to the certificate number
being filed with the numberination paper. he companycludes his
discussion thus
it would thus be seen that the amendment sought by the
petitioner offends against the companyditions laid down by their
lordships of the supreme companyrt in harish chandra bajpai v.
triloki singh  1  relating to the application of order vi
rule 17 of the civil procedure companye to proceedings before an
elettion tribunal. it has been specifically laid down that
an amendment will number be allowed if the effect of it be to
permit a new ground or charge to be raised or to so alter
its character as to make it in substance a new petition. that would exactly be the effect of the amendment sought by
the petitioner
it will be seen therefore that the tribunal has put before
itself the companyrect principles governing its powers of
amendment and found on a companystruction of the allegations in
the petition that by the proposed amendment the respondent
was seeking to introduce a new ground after the period of
limitation. this order was made by the tribunal in the
exercise of its discretion in strict companyformity with the
principles laid down by this companyrt. the next question is whether the high companyrt was justified in
setting aside that order. it was argued before the high
court that the amendment application was wrongly refused and
that even as the election petition stood without the
amendment it companytained sufficient averment of facts to make
out a ground under s. 100 1  d  i  of the act and in the
alternative that it made out a ground under s. 100 1  d  iv
of the
 1   1957  s.c.r.370. act. before the high companyrt the learned companynsel for the
respondent withdrew his prayer for the amendment of sub-
para 1  of para 5 of the election petition with the result
the only paragraph on which reliance was placed by the
respondent was sub-para  d  of para 5. the high companyrt also
numbericed the judgment of this companyrt in harish chandra
bajpais case  1  and posed the following question for its
decision
the important thing is whether in substance the petition
contains the particular ground of attack or number. it proceeded to companysider whether the original subpara  d  of
para 5 companytained any ground and if so what? and whether a
new ground was sought to be raised in the garb of an
amendment. after reading the said sub-para it expressed
the view that the ground in its opinion would fall under
s. 100 1  d  i  of the act and that companyclusion was based on
the allegations in the said sub-para that there was an
improper acceptance of the numberination and that the appellant
had number obtained the necessary certificate from the election
commission. it has stated that in the circumstances of the
case the respondent meant to state that as the certificate
had number been obtained it companyld number have accompanied the
numberination paper. the learned judges of the high companyrt
concluded their discussion thus
we also think that the tribunal should have permitted the
amendment because the ground of attack had been clearly made
out and the only mistake companymitted by the appellant was number
to put it in proper words
in short the view of the high companyrt was that sub. para  d
contained the ground under s. 100 1  d  i  of the act and
what was asked for by way of amendment was only a
clarification of that ground. the high companyrt in our view has missed the real point
raised before it. we have already pointed out that in view
of the judgment of this companyrt in durga shankar mehtas case
 2 there was numberimproper
 1   1957  s.c.r. 370.  2   1955  1 s.c.r. 267.
acceptance of the numberination paper by the returning officer. for the numberination paper ex facie did number disclose any
defect or disqualification. the petition for amendment
asked for inserting a statement in sub-para  d  of para 5
under the ground of improper acceptance of the numberination
paper viz. that the prescribed certificate did number
accompany the numberination paper of the candidate and that at
the appellate stage the other proposed amendment based upon
s. 33 3  of the act was given up. the result was that no
relief for raising the ground under s. 100 1  d  iv  had
survived and that the ground under s. 100 1  d  i  was number
open to the respondent. in the circumstances the amendment
would be foreign to the scope of the enquiry under the
ground governed by s. 100 1   d  i  of the act. that apart companyld it be said that the high companyrt was
justified in the circumstances of this case to interfere
with the discretion of the tribunal ? an appellate companyrt has
numberdoubt an unquestioned right to review or modify the order
made by a subordinate companyrt but it is undesirable to do so
when the subordinate companyrt made an order in the exercise of
its discretion without exceeding the limits of its power
unless it acted perversely or unless the view taken by it is
clearly wrong. in this case the election tribunal neither
exceeded its powers number acted perversely and indeed its
order advanced the cause of justice in that it helped to
maintain the election of a candidate who was duly qualified
and who secured a large majority of votes over all the rival
candidates. we have carefully companysidered the reasons set
out in the judgment of the high companyrt in support of its
decision that the amendment should have been allowed by the
tribunal and in our opinion the said reasons are
unsatisfactory and on some points farfetched. in the
circumstances we do number see any justification after the
entire petition was disposed of for the high companyrt to
interfere with the said discretion. we therefore set aside
the order of the high companyrt.


civil appellate jurisdiction civil appeals number. 230
231 of 1982.
from the judgment and order dated 20.2.1981 of the
punjab haryana high companyrt in civil writ petition number 476
of 1981.

p. rao and c.m. nayar for the appellants. harbans lal and r.s. sodhi for the respondents. the judgment of the companyrt was delivered by n
ray j. these appeals on special leave are against the
judgment and orders passed by a division bench of the high
court of punjab haryana dismissing summarily the writ
applications being civil writ number. 476 and 484 of 1981 filed
by the appellants on the ground that the orders terminating
services of the petitioners did number attach any stigma to the
service career of any of the appellants-petitioners but
they are made in terms of employment. the appellants were appointed on ad-hoc basis as
surveyors on various dates between december 1976 to numberember
1977 through employment exchange. the terms of the order of
appointment are quoted hereinbelow -
the following officials are hereby appointed as
surveyors in the grade of rs. 140-6-170/8-210/l0
300 upto 28.2.1977 or upto the date till the
regular candidates are recommended by the board
whichever is less on ad-hoc basis and are posted
under the officers mentioned against their names. their services can be dispensed with any time
without any numberice or reason. these candidates
will
1026
have to produce their companycerned certificates to
the companycerned officers before the submission of
the joining report. the government of punjab in order to regularise the
services of all the ad-hoc employees who had companypleted the
minimum period of one years service on september 1980
issued a circular  annexure b  to the effect that the
services of the ad-hoc employees shall be regularised on
certain companyditions mentioned therein. on being directed by
respondents number. 3 and 4 the petitioners submitted the
requisite documents to the authorities companycerned for
regularisation of their services. the service of the
petitioners was however terminated with effect from
31.1.81 by the order of he chief companyservator of soils
punjab chandigarh respondent number2. the crucial question requires to be decided in the
instant appeals is whether the impugned order of termination
of services of the petitioners can be deemed to be an
innumberuous order of termination simpliciter according to the
terms and companyditions of the services without attaching any
stigma to any of the petitioners or it is one in substance
and in fact an order of termination by way of punishment
based on misconduct and made in violation of the procedure
prescribed by article 311 2  of the companystitution of india. in other words when the order of termination is challenged
as casting stigma on the service career the companyrt can lift
the veil in order to find out the real basis of the impugned
order even though on the face of it the order in question
appears to be innumberuous. in order to decide this issue it is necessary to
consider firstly the terms and companyditions of appointment. the appointments of the petitioners are purely temporary and
they have been appointed on ad-hoc basis upto a certain
date or upto date till the regular candidates are
recommended by the board whichever is later. it was also
provided therein that their services can be dispensed with
any time without any numberice or reason. the petitioners
undoubtedly worked as surveyors since the date of their
appointment which in some cases in december 1976 and in some
cases on different dates between numberember 1977 till 31st of
january 1981 when their services were terminated. in the
order of termination it has
1027
been stated and services of the employees are terminated
with effect from 31.1.81 because these posts are numberlonger
required. this order was made by the chief companyservator of
soils punjab respondent number2. an affidavit has been sworn by ashok kumar the
petitioner number2 on 18th march 1981 along with an
application for stay. in paragraph 3 of the said affidavit
it has been specifically stated -

that the petitioner number1 was accused of the
shortage of rs. 7317.50 vide companymunication number 1965 dated
12.11.1979 received from assistant soil companyservation
officer budlada district bhatinda. that the deponent who is petitioner number2 was
also accused of shortfall and a first information
report dated 20.8.1980  number2715  has been lodged
against him with police station nahiwala  district
bhatinda  in respect of the same. that darshan singh the petitioner number6 was
accused of shortages vide companymunication number l0351
dated 3.10.1980 received from the companyservator of
soils ferozepur. that satnam raj petitioner number8 was also
accused of misappropriation vide companymunication number
10360 dt. 3.10.1980.

that ramesh singh petitioner number12 was
accused of shortages to the tune of rs.14000 and
was informed accordingly by the respondents. that similar allegations were made against the
remaining petitioners and they were branded as
incompetent and unfit for government service. adverse entries were also made in the annual
reports. in paragraph 4 of the said affidavit it has been
further averred that the above facts are true and companyrect to
the knumberledge of the deponent. it has also been stated that
the
1028
petitioners had prayed in the high companyrt to summon and
scrutinize the official records which would have clearly
indicated that the impugned orders of termination were based
by way of punishment and casts stigma on the petitioners. in the companynter affidavit sworn by c.m. sethi chief
conservator of soils punjab chandigarh on behalf of
respondents number. 1 to 7 on april 4 1981 the statements in
paragraphs 3 4 and 5 of the said affidavit have number at all
been companytroverted. in paragraph 4 of the said affidavit it
has been stated that annual half yearly companyfidential reports
were written on the work and companyduct of all ad-hoc employees
including the petitioners in the department. therefore it
is number companyrect to say that they learnt of their adverse
reports from the return filed in the high companyrt for the
first time. an additional affidavit verified by c.m. sethi chief
conservator of soils respondent number2 on january 15 1982
was filed. it has been stated in paragraphs 3 4 and 5 of
the said affidavit
the claim of the petitioners that their record is
satisfactory and they have been performing their
duties efficiently was denied in companynection with
their claim for regular appointment only and it
was stated strictly in companynection with their claim
for regular appointment that some of them have
adverse record and there are
shortages embezzlements and that the departmental
selection companymittee companystituted by the government
did number recommend them as fit for regular
appointment in view of which they cannumber be made
regular. me petitioners are quoting that
information as a ground for termination of their
services out of companytext which is number companyrect and
is denied. the services of the petitioners were terminated on
the expiry of existing term of ad-hoc appointment
and number for the reason due to which they were
found to be number fit for regular appointment by the
departmental selection companymittee. according to the reports of the field officers the
1029
petitioners sarvshri natha singh balbir singh
ram chand darshan singh dalbir singh sat pal
nirmal singh and satnam raj who had earned adverse
reports during the years 1979-80 and upto 9/80
were duly companyveyed the adverse entries. it is
therefore denied that the adverse entries were
number companyveyed to them. an additional affidavit on behalf of the appellants has
been sworn by swinder singh one of the appellants on
8.8.84. in paragraph 4 of the said affidavit it had been
averred that the following appellants were number companymunicated
any adverse report - c

jarnail singh appellant number 1 in civil appeal
number 230/82. ii  ashok kumar appellant number 2 in civil appeal
number 230/82. d
iii  tajender singh appellant number 2 in civil
appeal number 231/82. iv  nachhattar singh appellant number 4 in civil
appeal number 231/82. e

bagga singh appellant number 7 in civil appeal
number 230/82. vi  ramesh singh appellant number 12 in civil appeal
number 230/82. vii  bura singh appellant number 5 in civil appeal
number 231/82. viii  joginder singh appellant number 7 in civil
appeal number 231/82. it has been stated in paragraph 5 -
that the above names of the appellants who were
number companymunicated any adverse reports are given in
view of the fact that the respondent state has
1030
maintained that appellants were companymunicated
adverse reports in accordance with the rules and
they were number companyfirmed in view of these adverse
entries in the companyfidential rolls of the
appellants . it has been stated in paragraph 6 of the said
affidavit -
that it is however admitted that the following
appellants were actually companymunicated adverse
reports as late and closer to their date of
termination of their services as is indicated in
the table below -
name of the date of date of
appellant report companymunication of the
report

roop chand 29.1.81 29/30.1.81

nathha singh 6.10.80 december 1980

dalbir singh number knumbern 24.1.1981

darshan singh 30.10.80 december 1980

satnam raj 25.10.80 december 1980

nirmal singh number knumbern december 1980

balbir singh number knumbern december 1980

ram chand siv number knumbern december 1980

savinder singh 28.10.80 end of january81

sakttar singh 25.10.80 december 1980
 issued on 3.11.80

partap singh 27.10.80 december 1980
 issued on 3.11.80

sat pal 25.10.80 2.1.1981
 issued on 2.1.81

tarsem lal 24.12.80 end of january 81.
it has been stated in paragraph 7 of the said
affidavit-
that the following persons who were recruited
around the same time and were taken in service
also earned adverse reports and faced charges of
1031
embezzlement but have been retained and a
regularised in service in preference to the
appellants -

gurbux singh s o sohan singh

mithoo ram s o muleand lal

gurcharan singh s o hazara singh

tulsa singh s o surjeet singh

vinay kumar sawhney

kabul singh s o tara singh

daulat ram s o gala ram

chander prakash s o sunder lal

nirmal singh s o sohan singh
 l0  gurbux singh s o geja singh

jaswant singh s o chanchal singh

ganda singh s o hardit singh

boota singh s o anumberh singh

manmohan sood s o arjun singh. it has been stated in paragraph 8 of the said
affidavit- d
that there were other persons who were recruited
later than the appellants but companytinue to remain
in service to the detriment of the companystitutional
rights of the appellants. it has been stated in paragraph 10 of the said
affidavit
that the respondent state framed false cases of
embezzlement against some of the appellants and
till todate numberproceedings have been taken number
any inquiries instituted against in regard to
those cases. it has been stated in paragraph 13 of the said
affidavit -
that the screening companymittee was presided over by
the chief companyservator of soils punjab chandigarh
shri c.m. sethi under whose administrative
control the appellants companyfidential record was
written and who has filed the companynter affidavit
on behalf of the respondents before this honble
court. 1032
in the affidavit verified by pritam singh chief
conservator of soils punjab chandigarh on 22nd numberember
1984 it has been stated in paragraph 4 that -
it is wrong that there were adverse remarks
against sarvshri jarnail singh ramesh singh and
bura singh which were required to be companymunicated
to them. in respect of others there were adverse
remarks which were companymunicated through letters
mentioned below

sh. ashok kumar according to the
record available
adverse remarks
were companyveyed by the
conservator of
soils ferozepur to
the divisional soil
conservation
officer bhatinda
vide letter number
11427 dated 28.10.80
for its further
communication to the
official companycerned. tejinder singh adverse remakrs were
conveyed by the
conservator of
soils ferozepur to
the divisional soil
conservation
officer bhatinda
vide number 11429 dated
27.10.80 for further
communication to the
official companycerned. nachhatar singh adverse remarks were
conveyed by the
conservator of
soils ferozepur to
the divisional soils
conservation
officer bhatinda
vide number
10355 dated 3.10.80
for further
communication to the
official companycerned. 1033

joginder singh adverse remarks were companyveyed
by the companyservator of soils
ferozepur to the divisional
soil companyservation officer
bhatinda vide number 11813 dated
4.11.80 for further
communication to the official
concerned

bagga singh companymunication reference is number
available on record. the services of the petitioners were terminated on
the expiry of existing term of ad-hoc appointment
and number for the reason due to which they were
found to be number fit for regular appointment by the
departmental selection companymittee. it has further been stated in paragraph 6 and 7 of the
said affidavit. that the adverse entries of the period varying
from 10/80 to 1/81 have been companymunicated to them
in december 1980 january 1981. as this period
is nearer to their date of termination of services
so they were to be companymunicated these remarks at
that time only. it is incorrect to the extent that the persons
named below earned adverse remarks and had charges
of shortages embezzlement. mithu ram s o mukan lal
ii  gurcharan singh s o hazara singh
iii  kabul singh s o tara singh
iv  daulat ram s o gala ram

chander prakash s o sunder lal
vi  gurbux singh s o geja singh
vii  jaswant singh s o chanchal singh
viii  ganda singh s o hardit singh
ix  boota singh s o anumberh singh

manmohan sood s o arjun singh
1034
however in the case of remaining persons namely
sarvshri  i  gurbux singh s o sohan singh  ii
tulsa singh s o surjit singh  iii  nirmal singh
s o sohan singh  iv  vinay kumar s o shri ram
there were adverse remarks against these persons
and the departmental selection companymittee examined
their record of service and found them fit for
regular appointment. me departmental selection
committee was fully companypetent to select or reject
any of the candidates for regular appointment in
accordance with the government instructions on the
subject. it has also been stated in paragraph 8 of the said
affidavit that the departmental selection companymittee in
accordance with the government instructions as companytained in
government numberification dated 28.10.1980 companysidered the
cases of all eligible persons including the appellants and
the persons cited in the list for appointment on regular
basis and the appellants were number found fit for appointment
on regular basis by the companymittee. thus the appellants were
afforded full opportunity to companypete and as such no
constitutional right of the appellants was infringed. it thus appears on a companysideration of the averments
made in the affidavit verified on behalf of the petitioners
as well as on behalf of the respondents that the impugned
order of termination of service of the petitioners had been
made on the ground that there were adverse remarks in the
service records of the petitioners as well as there were
serious allegations of embezzlement of funds against some of
the petitioners. it is quite clear that on companysideration of
all these adverse entries in the service record as well as
serious allegations relating to misconduct the petitioners
were number companysidered fit by the departmental selection
committee to recommend the petitioners for regularisation of
their services as surveyors. the impugned orders of
termination of services of the petitioners are really made
by way of punishment and they are number termination
simpliciter according to terms of the appointment without
any stigma as wrongly stated. it is indisputed that the
respondents number. 2 and 3 did number follow the mandatory
procedure prescribed by article 311 2  of the companystitution
in making the purported orders of termination of services of
the petitioners on the ground of misconduct and thus there
has
1035
been a patent violation of the rights of the petitioners as
provided in article 311 2  of the companystitution. there is no
room for any doubt that the impugned orders of termination
of services of the petitioners had been made by way of
punishment as the allegations of embezzlement of funds as
well as adverse remarks in the service records of these
petitioners were the basis and the foundation for number
considering the petitioners to be fit for being regularised
in their services in accordance with the government circular
dated october 28 1980. therefore it is clear and evident
in the companytext of these facts and circumstances of the case
that the impugned order of termination though companyched in the
innumberuous terms as being made in accordance with the terms
and companyditions of the appointment yet the impugned order of
termination of services of the petitioners were in fact made
by way of punishment being based on the misconduct. there is
also numberdenial of the specific averments made in the
paragraph 8 of the additional affidavit sworn by one of the
appellants swinder singh on august 8 1984 that persons who
were recruited later than the appellants were allowed to
continue and to remain in service to the detriment of the
constitutional rights of the appellants. the impugned order
of termination was therefore also assailed on the ground
of discrimination infringing articles 14 and 16 of the
constitution of india. it is vehemently urged on behalf of the respondents
that the orders of termination have been made in accordance
with the terms of the ad-hoc appointment of the petitioners
which provided that their services can be terminated at any
time without assigning any reason and as such the impugned
orders companyld number be assailed on the ground of attaching any
stigma to the service career of the petitioners. it has also
been urged that where the impugned order is perse innumberuous
and it is made in accordance with the terms of the
appointment the companyrt should number delve into the
circumstances which were taken into companysideration by the
authorities companycerned in making the order. in other words it
has been urged that in such cases it is number for the companyrt to
enquire into the basis of the order and to see if the same
was in fact made by way of punishment having evil
consequences or number. the petitioners are undoubtedly temporary ad-hoc
employees having numberright to the posts they hold. in the
case of parshotam lal dhiogra v. union of india 1958

c.r. 828 it has been observed by this companyrt as follows -
1036
in short if the termination of service is
founded on the right flowing from companytract or the
service rules then prima facie the termination
is number a punishment and carried with it numberevil
consequences and so article 311 is number attracted
but even if the government has by companytract 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
in-efficiency or other disqualification then it
is a punishment and the requirements of article
311 must be companyplied with
in the case of state of punjab anr. v. shri sukh raj
bahadur 19683 s.c.r. 234 the following prepositions were
laid down by this companyrt while companysidering the question
whether in case of termination of service of a temporary
servant or a probationer article 311 2  of the companystitution
would be affected or number. the prepositions are as follows -

the services of a temporary servant or a
probationer can be terminated under the rules of
his employment and such termination without
anything more would number attract the operation of
article 311 of the companystitution. the circumstances preceding or attendant on the
order of termination have to be examined in each
case the motive behind it being immaterial. if the order visits the public servant with any
evil companysequences or casts an aspersion against
his character or integrity it must be companysidered
to be one by way of punishment numbermatter whether
he was a mere probationer or a temporary servant. an order of termination of service in
unexceptionable form preceded by an enquiry
launched by the superior authorities only to
ascertain whether the public servant should be
1037
retained in service does number attract the operation
of article 311 of the companystitution. if there be a full-scale departmental enquiry
envisaged by article 311 i.e. an enquiry officer
is appointed a charge sheet submitted
explanation called for and companysidered any order
of termination of service made thereafter will
attract the operation of the said article. this decision was companysidered by this companyrt in the case
of state of bihar ors. v. shiva bhikshuk misra 1971 2

c.r. 191 in companynection with the reversion of an
officiating subedar major to his substantive post of
sergeant. in that case the respondent held the substantive
post of sergeant in the bihar police force till july 31
1946. on august 1 1946 he was promoted to the higher post
of subedar. in january 1948 he was further promoted to
officiate temporarily as subedar major. in october 1950 the
commandant of the bihar military police muzaffarpur wrote
to the deputy inspector of police armed forces suggesting
that he should be censured for having assaulted an orderly. thereafter the inspector general of police reverted the
respondent to the post of sergeant. m e said order of
reversion was challenged and it was held by this companyrt that
so far as we are aware numbersuch rigid principle
has ever been laid down by this companyrt that one has
only to look to the order and if it does number
contain any imputation of misconduct of words
attaching a stigma to the character or reputation
of a government officer it must be held to have
been made in the ordinary companyrse of administrative
routine and the companyrt is debarred from looking at
all the attendant circumstances to discover
whether the order had been made by way of
punishment. the form of the order is number
conclusive of its true nature and it might merely
be a cloak or camouflage for an order founded on
misconduct. it may be that an order which is
innumberuous on the face and does number companytain any
imputation of misconduct is a circumstance or a
piece of evidence for finding whether it was made
by way of punishment or
1038
administrative routine. but the entirety of
circumstances preceding or attendant on the
impugned order must be examined and the overriding
test will always be whether the misconduct is a
mere motive or is the very foundation of the
order. the order of reversion was held to be by way of
punishment and as such it was set aside. in the case of state of uttar pradesh ors. v. sughar
singh 1974 2 s.c.r. 335 a permanent head companystable in the

p. police force was appointed as officiating platoon
commander in the companybined cadre of sub inspector armed
police and platoon companymander. he was subsequently reverted
to the substantive post of head companystable in 1968. at the
time of reversion he was one among a group of about 200
officers most of whom were junior to him. two questions
arose namely whether the order of reversion is attendant
with any stigma and secondly whether there has been any
discrimination violating article 14 and 16 of the
constitution. it was held that so far as reversion is
concerned the order of reversion did number cast any stigma
number it has any evil companysequences as the respondent neither
lost his seniority in the substantive rank number there has
been any forfeiture of his pay or allowances. it was also
held that the order was liable to be quashed on the ground
of companytravention of article 14 and 16 of the companystitution
inasmuch as while the respondent had been reverted his
juniors were allowed to retain their present status as sub
inspector and they have number been reverted to the substantive
post of head companystable. it was further held that there was
numberadministrative reason for this reversion so the order
was held bad. the question whether the order terminating the service
of a probationer made according to the terms of appointment
can never amount to punishment in the facts and
circumstances of the case was companysidered by a bench of 7
judges of this companyrt in the case of shamsher singh anr. v.
state of punjab 1975 1 s.c.r. 814. in that case the
services of two judicial officers who were on probation were
terminated by the government of punjab on the recommendation
of the high companyrt under rule 7 3  in part of the punjab
civil services
1039
 judicial branch  rules 1951 as amended. the services of the
a probationers were terminated without saying anything more
in the order of termination. this was challenged on the
ground that though the order on the face of it did number
attach any stigma yet the attendant circumstances which led
to passing of the order if companysidered then the orders would
amount to have been made by way of punishment violating
article 311 of the companystitution. it has been observed
relying on the observations of this companyrt in parshotam lal
dhingra v. union of india by a.n. ray c.j. as follows -
numberabstract proposition can be laid down that
where the services of a probationer are terminated
without saying anything more in the order of
termination 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 companystitution. this decision was followed and relied upon in the case
of anumberp jaiswal v. government of india anr. 1984 2

c.r. 369. in that case the appellant being selected for
appointment in the i.p.s. were undergoing training as a
probationer. on a particular day all the trainees arrived
late at the place where p.t. unarmed companybat practice was to
be companyducted although prior intimation was sent to them in
this regard. this delay was companysidered as an incident which
called for an enquiry. the appellant was companysidered to be
one of the ring leaders who was responsible for the delay. explanation was called for from all the probationers. the
appellant in his explanation sincerely regretted the lapse
while denying the charge of instigating others in reporting
late. after receiving the explanations all the probationers
including the appellant were individually interviewed in
order to ascertain the facts. on the basis of the
explanation and interview but without holding any proper
enquiry the director recommended to the government of india
that the appellant should be
1040
discharged from the service. the government accordingly
passed an order of discharge of the appellant on the ground
of unsuitability for being a member of the i.p.s. mis order
was challenged in the writ petition. it has been held as
follows-
where the form of the order is merely a
camouflage for an order of dismissaly for
misconduct it is always open to the companyrt before
which the order is challenged to go behind the
form and ascertain the true character of the
order. if the companyrt 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 companyrt would number be debarred merely because of
the form of the order in giving effect to the
rights companyferred by law upon the employee. the order was held to be bad as it was made on the
ground of misconduct without affording reasonable
opportunity to the appellant to defend himself as provided
under article 311 2  of the companystitution. in the case of nepal singh v. state of u.p. ors. i.r. 1985 s.c. 84 the service of the appellant nepal
singh who was employed in temporary capacity as sub
inspector of police was terminated by an order of deputy
inspector general of police bareilly range and the order
merely stated that the appellants services were number
required any more and were terminated with one months pay
in lieu of numberice. this order was challenged on the ground
that lt amounted to punishment and since numberopportunity of
hearing as provided in the article 311 2  of the
constitution was afforded the impugned order was liable to
be quashed and set aside. it transpired at the time of
hearing that a disciplinary proceeding was initiated against
the appellant on the ground that he companytracted the second
marriage during the life time of his first wife and this act
was done without obtaining prior permission of the
government. mis disciplinary proceeding however was number
proceeded with. thereafter the superintendent of police
shahjahanpur drew up a list to the effect that he was a
corrupt officer and he was number straight-forward. the
impugned order was made thereafter. it was held that where
allegations of misconduct were levelled against a government
1041
servant and it was a case where provisions of article 311 2
of the companystitution should apply it was number open to the
competent authority to take the view that holding the
enquiry companytemplated by that clause would be a bother or a
nuisance and that therefore it was entitled to avoid the
mandate of that provision and resort to the guise of an ex
facie innumberuous termination order. in the instant case as we have stated already
hereinbefore that though the impugned order was made under
the camouflage or cloak of an order of termination
simpliciter according to the terms of the employment yet
considering the attendant circumstances which are the basis
of the said order of termination there is numberiota of doubt
in inferring that the order of termination had been made by
way of punishment on the ground of misconduct and adverse
entry in service record without affording any reasonable
opportunity of hearing to the petitioners whose services are
terminated and without companyplying with the mandatory
procedure laid down in article 311 2  of the companystitution of
india. the position is number well settled on a companyspectuous of
the decisions referred to hereinbefore that the mere form of
the order is number sufficient to hold that the order of
termination was innumberuous and the order of termination of
the services of a probationer or of an ad-hoc appointee is a
termination simpliciter in accordance with the terms of the
appointment without attaching any stigma to the employee
concerned. it is the substance of the order i.e. the
attending circumstances as well as the basis of the order
that have to be taken into companysideration. in other words
when an allegation is made by the employee assailing the
order of termination as one based on misconduct though
couched in innumberuous terms it is incumbent on the companyrt to
lift the veil and to see the real circumstances as well as
the basis and foundation of the order companyplained of. in
other words the companyrt in such case will lift the veil and
will see whether the order was made on the ground of
misconduct inefficiency or number. in the instant case we have
already referred to as well as quoted the relevant portions
of the averments made on behalf of the state respondent in
their several affidavits alleging serious misconduct against
the petitioners and also the adverse entries in the service
records of these petitioners which
1042
were taken into companysideration by the departmental selection
committee without giving them any opportunity of hearing and
without following the procedure provided in article 311 2
of the companystitution of india while companysidering the fitness
and suitability of the appellants for the purpose of
regularising their services in accordance with the
government circular made in october 1980. mus the impugned
orders terminating the services of the appellants on the
ground that the posts are numberlonger required are made by
way of punishment. it also appears on a companysideration of the averments
made in paragraphs 7 and 8 of the additional affidavit sworn
by one of the appellants swinder singh on august 8 1984
which has number been companytroverted at all by the respondent
that the respondents though terminated the services of the
petitioners on the ground that these posts are numberlonger
required have retained and regularised the service of ad-
hoc employees mentioned in paragraph 7 as well as ad-hoc
surveyors who were recruited later in the said post of
surveyors to the prejudice of the rights of the appellants
thereby violating the salutary principle of equality and
number-arbitrariness and want of discrimination and as
enshrined in articles 14 and 16 of the companystitution of
india. it is pertinent to refer here to the decision
rendered by this companyrt in sughar singhs case where it had
been held that the order of reversion reverting the
respondent from his officiating appointment to the post of
platoon companymander to the post of permanent head companystable
while retaining 200 other head companystables who were junior to
him in the officiating higher posts of platoon companymanders
was discriminatory and arbitrary being in companytravention of
the articles 14 and 16 of the companystitution. similar observations have been made in the case of
manager govt. branch press anr. v. d.b. belliappa 1979
2 s.c.r. 458. it has been held that the protection of
articles 14 and 16 of the companystitution will be available
even to a temporary government servant if he has been
arbitrarily discriminated against and singled out for harsh
treatment in preference to his juniors similarly
circumstanced. in that case the service of belliappa a
temporary class iv employee was terminated without assigning
any reason although in accordance with he companyditions of his
service three other employees similarly situated junior to
belliappa in the said
1043
temporary cadre were retained. the order of termination was
held to be bad as it offended the equity clause in article
14 and 16 of the companystitution. in the instant case ad-hoc services of the appellants
have been arbitrarily terminated as numberlonger required while
the respondents have retained other surveyors who are
juniors to the appellants. therefore on this ground also
the impugned order of termination of the services of the
appellants are illegal and bad being in companytravention of the
fundamental rights guaranteed under articles 14 and 16 of
the companystitution of india. in the premises aforesaid the impugned orders of
termination of the services of the appellants are liable to
be quashed cancelled and set aside.