PETITIONER: <ORG> Vs. RESPONDENT: UNIED BANK OF INDIA & ORS. DATE OF JUDGMENT: 08/08/2000 BENCH: S.RAJENDRA BABU & SHIVARAJ V. PATIL JUDGMENT:

L...I...T.......T.......T.......T.......T.......T.......T..J RAJENDRA BABU, J. :

This petition is filed against the judgment passed by <ORG> affirming a decree passed by the learned Single Judge of <ORG> for a sum of Rs.1015.50 lakhs on application of the respondent for judgment upon admission as provided under Order XII, Rule 6 of the Code of Civil Procedure. The facts leading to the suit are as follows:

<ORG> subcontracted construction of students' dormitories/dining hall for <ORG> Iraq. Respondent Nos. 1 to 3 functioned as consortium to finance the said project. Certain disputes having arisen petitioner filed suits against the respondent Banks that the debits raised are illegal etc. <ORG> (<ORG>) filed a suit for recovery of certain sums of money and an application made therein under Chapter XIII-A of the Original Side Rules and <ORG> rejected the same and Respondents 1 and 3 Banks and <ORG> were also impleaded by an amendment in the said suit. Respondent No.1 filed a suit for recovery of certain sum of money with certain other reliefs and in that suit, application for judgment upon admission was allowed. Appeal thereon being unsuccessful, this petition is filed.

The application filed by <ORG> for judgment on admission covers only a part of the suit claim. The <ORG> relied upon (I) Balance Sheet of the petitioner for year ending 31st March, 1989 with reference to Schedules 'C', 'D' and 'E'; (ii) Minutes of the meeting of Board of Directors held on 30th May, 1990 which noticed the discussion at the meeting and issues that could be deemed to have been settled as result thereof. (iii) letter dated 4th June, 1990 communicating the resolution and minutes of the meeting of the Board of Directors held on May 30, 1990.

In the said minutes in the meeting held on 30th May, 1990, it was mentioned as follows:-

"IT WAS RESOLVED THAT :

In consideration of <ORG>, Connaught Circus Branch, New Delhi, having agreed to the continuation of the previously sanctioned aggregate credit limits amounting to Rs.17.45 crores and in consideration of the <ORG> having agreed to continue the operation of the various borrowing accounts with outstanding dues, as stated hereinbelow in detail, the Company agrees to duly execute a fresh set of documents as required by the <ORG> there against.

That Mr. <NAME>, the Managing Director of the Company be and is hereby authorised to execute the said documents and the official seal of the Company be affixed thereon.

It is also resolved that the Company disputes the amount of Rs.3,08,01,000 debited to its Cash Credit Account on 01.08.89 which along with interest stands at Rs.3,60,62,579 as on 31.03.90.

That the company accepts its liability as per details stated hereinbelow:

Natures Present Sanctioned Amount Due (Rs. In lakhs) (Rs. In lakhs) Cash Limit/OD 65.00 101.16 Inland Guarantee 401.31 23.18 <ORG> 1082.60 793.73 Jordan Guarantee 209.30 101.85 Term Loan 5.00 Nil Loan Account Nil 16.88 --------- --------- 1745.07 1036.80 ======= =======

That, also due to fluctuations in Exchange Rate there has been difference in amount due under Jordan Guarantee amounting to about Rs.21 lakhs which is not reflected in details shown above."

A copy of the aforesaid resolution was sent to the plaintiff with the following note as indicated in the letter dated 4th June, 1990:

"a) We do not confirm the debit entry of Rs.3,60,62,579/- representing your share of the invoked guarantee with interest upto 31.3.90 which has been effected by you unauthorisedly against the illegal payment made by <ORG>. We are enclosing a copy of the reply given to the Legal Notice received by us from them. The reply is self-explanatory. You will agree that before effecting the said payment consisting of such a large amount, a reference ought to have been made to us.

b) The loan account of <ORG> amounting to Rs.4,03,820 is not accepted and is totally denied. We have repaid your <ORG> the Convertible was loan for Baghdad along with interest in full. The debit in your ledger is on account of the <ORG> not giving effect to the reduced interest rate as directed by <ORG>. At their request a copy of the <ORG> circular was given to them and had also been sent to you.

c) That fresh documents are executed against the consideration of permitting us to operate the sanctioned limits there against as they stand. The debit entry of Rs.3,60,62,579 and entries for interest thereon will have no bearing on the actual amount due as confirmed by us in our Board Resolution.

d) Almost two years ago an unofficial freeze was imposed on our Inland Guarantee limits for reasons never communicated to us. Thus, you had denied fresh Guarantees for Bid Bonds etc. to tender for new works and the company's huge fleet of Construction equipments and trained personnel perforce thereby remained idle since the last one and a half year."

The petitioners filed an affidavit-in-opposition to contend that:

1. That the defendant No.1's suit is barred by limitation;

2. That the resolution dated 30.5.90 was passed subject to a condition that the inland guarantee limit would be resumed and that as the condition was not fulfilled, the resolution was no binding;

3. That the defendant No.1's suit was liable to be stayed under Section 10 CPC because the matter in issue in the suit was also directly and substantially in issue in the previous suits filed by others

4. That the suit of the defendant No.1 is bad for misjoinder of parties.

The defendants further contended that, insofar as resolution dated 30.5.90 and a letter dated 4.6.1990 are concerned, they are to the effect that they are matters of record and save what are matters of record and save what would appear from the letter dated 30.5.1990 all allegations to the contrary are disputed and denied. It is categorically denied that there is any admission of liability by the first respondent to the Petitioner to the extent of Rs.10,15,80,090 as on 30th March 1990 or that since the said alleged admission of the liability the claim of the Petitioner has increased and it is now more than Rs.24 crores, as wrongly alleged, if at all.

At the time of hearing it appears it was contended: 1. that the amount claimed by the plaintiff from the defendants was part of the consortium agreement under which <ORG>, <ORG> and <ORG> agreed to advance money to defendant No. 1 in the proportion of 50:25:25. It was stated that <ORG> has filed a suit against the defendants for recovery of all the amounts advanced by the consortium to the defendant No.1 and that suit was still pending, therefore, they were estopped from filing that suit and making an independent claim against the defendant No.1. 2. That in the suit filed by <ORG> an application had been moved by <ORG> for final judgment under Chapter XIII-A on the basis of the same documents which were sought to be relied upon by the plaintiff. The trial judge had rejected the same. 3. That payments had been made subsequent to the admission and loan was recalled only in 1993 just prior to the filing of the suit. 4. That several claims have been included in the suit in respect of which another suit has been filed in <ORG> and, therefore, the amount could not be recovered. 5. The claim of the plaintiff had been covered by a counter guarantee issued by <ORG> and the extent of payment made by it to the plaintiff and the suit was for the reason not maintainable at the instance of defendant No. 1.

6. That the defendants in the suit had filed a separate suit in which he had claimed for certain reliefs which would nullify the claim made by the plaintiff in the suit.

The learned trial judge found that there is an unequivocal admission of the contents of the documents and what is denied is the extent of admission and the increase of the liability admitted. The learned trial judge took the view that the pre- requisites of Order XII, rule 6 CPC had been satisfied in this case and that on a plain reading of the resolution of the <ORG> dated 30.5.90 there could be no doubt that the Petitioner had made a clear, unambiguous and unconditional acknowledgement of its liability to the <ORG>. The language of the resolution would show that the extent of the admission in the resolution is for Rs.10,15,80,000/-, if not for Rs.10,36.80 lakhs. The figure of Rs.1015.80 lakhs is firm admission being the figure arrived at after deducting Rs.21 lakhs claimed by the defendants by reason of fluctuation of the exchange rate and that was the amount claimed by the Petitioner in the suit. This admission made in the course of the <ORG> of Directors' resolution had not been explained by the Petitioner in the affidavit-in-opposition but on the other hand had reiterated the same. The arguments raised before the trial court were considered to be contrary to the pleadings raised in the case. Therefore, the application was allowed.

On appeal, <ORG> noticed these very facts and also noted that discrepancy, if any, between the appellant's particulars and the particulars in respect of which a judgment was sought on admission was not made the subject-matter of challenge either in the affidavit-in- opposition before the trial Judge or in the arguments thereof and characterized the same as a point of accounting discrepancy which could not be raised at the stage of appeal and dismissed the same.

Learned Counsel for the appellant contended that Order XII Rule 6 comes under the heading 'admissions' and a judgment on admission could be given only after due opportunity to the other side to explain the admission, if any, made; that such admission should have been made only in the course of the pleadings or else the other side will not have an opportunity to explain such admission; that even though, the provision reads that the court may at any stage of the suit make such order as it thinks fit effect of admission, if any, can be considered only at the time of trial; that the admission even in pleadings will have to be read along with order VIII Rule 5(1) of <ORG> and <ORG> need not necessarily proceed to pass an order or a judgment on the basis of such admission but call upon the party relying upon such admission to prove its case independently; that during pendency of other suits and the nature of contentions raised in the case, it would not be permissible at all to grant the relief before trial as has been done in the present case; that the expression 'admissions' made in the course of the pleadings or otherwise will have to be read together and the expression 'otherwise' will have to be interpreted ejusdem generis'.

As to the object of the Order XII Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled." We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.

The next contention convassed is that the resolutions or minutes of meeting of the <ORG>, resolution passed thereon and the letter sending the said resolution to the respondent bank cannot amount to a pleading or come within the scope of the Rule as such statements are not made in the course of the pleadings or otherwise. When a statement is made to a party and such statement is brought before the <ORG> showing admission of liability by an application filed under Order XII Rule 6 and the other side has sufficient opportunity to explain the said admission and if such explanation is not accepted by the <ORG>, we do not think the trial court is helpless in refusing to pass a decree. We have adverted to the basis of the claim and the manner in which the trial court has dealt with the same. When the trial judge states that the statement made in the proceedings of the <ORG> meeting and the letter sent as well as the pleadings when read together, leads to unambiguous and clear admission with only the extent to which the admission is made is in dispute. And the court had a duty to decide the same and grant a decree. We think this approach is unexceptionable.

Before the trial judge, there was no pleading much less an explanation as to the circumstances in which the said admission was made, so as to take it out of the category of admissions which created a liability. On the other hand, what is stated in the course of the pleadings, in answer to the application filed under Order XII Rule 6 CPC, the stand is clearly to the contrary. Statements had been made in the course of the Minutes of the Board of Directors held on 30th May, 1990 to which we have already adverted to in detail. In the pleadings raised before the Court, there is a clear statement made by the respondent as to the undisputed part of the claim made by them. In regard to this aspect of communicating the resolution dated 30th May, 1990 in the letter dated 4th June, 1990 what is stated in the affidavit-in-oppostion in application under Order XII Rule 6 CPC is save, what are matters on record and save what would appear from the letter dated 30th May, 1990 all allegations to the contrary are disputed and denied. This averment would clearly mean that the petitioner does not deny a word of what was recorded therein and what is denied is the allegation to the contrary. The denial is evasive and the learned judge is perfectly justified in holding that there is an unequivocal admission of the contents of the documents and what is denied is extent of the admission but the increase in the liability is admitted.

Even without referring to the expression 'otherwise' in Rule 6 of Order XII CPC, we can draw an inference in the present case on the basis of the pleadings raised in the case in the shape of the applications under that Rule and the answering affidavit which clearly reiterates the admission. If that is so, interpretation of the expression 'otherwise' becomes unnecessary.

The learned counsel for the appellant relied on a decision of this Court in <NAME> Vs. <NAME> & Others, 1956 S.C.R.451, as to when an admission becomes relevant. In <NAME> (supra) which is locus classicus on the subject states that merely because a written admission made in a different context, such admission may not become relevant if the party making it has a reasonable explanation of that. But that is not the position in the present case at all. Learned counsel for the appellant further adverted to the decision in <NAME> & Anr. Vs. <NAME> and Anr., 1999 (8) SCC 396 in which the court was concerned with a case of the effect of not filing a written statement and whether a decree could be passed only on that basis. That was a suit for specific performance and it was held it could not be granted without even writing a detailed judgment and adverted to various provisions of Code of Civil Procedure and reference was made to Order XII Rule 6 by way of analogy and referred to the dictum in <CITATION> , 1959 SCR 111, to state that Order XII Rule 6 should be read along with proviso to Rule 5 of Order 8 CPC. In that case, what was noticed was that in cases governed by Section 42 and Section 43 of Specific Relief Act, 1877, the court is not bound to grant declaration prayed for on the mere admission of the claim by the defendant if the court has reason to insist upon a clear proof apart from admission. The result of a declaratory decree confers status not only on the parties but for generations to come and so it cannot be granted on a rule of admissions and, therefore, insisted upon adducing evidence independent of the admission. That is not the position in the present case at all. We fail to see how this decision can be of any use to the petitioner. The decision in re <ORG>, AIR 1974 Calcutta 170 pertains to the manner in which the balance sheet should be read and has no bearing on the case. The decision in <CITATION> . <ORG>, 1974 M.P.75, is to the effect that the Rule is wide enough to afford relief not only in cases of admissions in pleadings but also in the case of admission de hors pleadings. <CITATION> ., AIR 1988 Delhi 153, and <ORG> vs. <ORG>, AIR 1962 J & K 66 cannot have any relevance because the facts in arising cases and the present case are entirely different.

Learned counsel for the Petitioner contended that admissions referred to in Order XII, Rule 6 CPC should be of the same nature as other admissions referred to in other rule preceding this Rule. Admissions generally arise when a statement is made by a party in any of the modes provided under Sections 18 to 23 of the Evidence Act, 1872. Admissions are of many kinds : they may be considered as being on the record as actual if that is either in the pleadings or in answer to interrogatories or implied from the pleadings by non- traversal. Secondly as between parties by agreement or notice. Since we have considered that admission for passing the judgment is based on pleadings itself it is unnecessary to examine as to what kinds of admissions are covered by Order XII, Rule 6 CPC.

We are not impressed with the contention of the learned counsel for the appellant that there is no admission for the purpose of Order XII Rule 6 at all, nor that the admission if any is conditional because we cannot spell out any conditions stated therein nor the dismissal of application filed by <ORG> in the suit has any relevance. Therefore, we are of the view that this case deserves to be dismissed with advocates' fees quantified at Rs. 10,000/-.


<NAME>, J.

1. <ORG> through its Secretary has filed the above Writ Petition to issue a Writ of Declaration declaring the ceiling on the wages of the employees with regard to entitlement for Bonus in Section 2(13) of the Payment of Bonus Act as illegal and unconstitutional and consequently direct the respondents 1 and 2 not to impose ceiling on the wages of the employees Class III and IV Categories with regard to entitlement for Bonus and direct the respondents 2 and 3 to pay arrears of bonus for the period from 1986 to 1993.

2. The case of the petitioner <ORG> is briefly stated hereunder: The petitioner <ORG> is <ORG> of the UCO Bank Employees' <ORG> which is a registered Trade Union and has been recognised by the third respondent. Most of the employees of the third respondent were getting bonus until they crossed the limit of Rs.2,500/-. The Secretary of the petitioner Union who is the deponent of the affidavit filed in support of the above writ petition was getting bonus till 1986 and thereafter became eligible as a result of the ceiling on wages at Rs.2,500/-. <ORG> of which the petitioner <ORG> is an affiliate made representations to <ORG> for amendment of Section 2(13) to remove the ceiling so as to make all employees particularly Class IV and III eligible to get bonus. Since nothing has been done so far by the Government, the <ORG> was constrained to approach this Court by way of the present writ petition.

3. Joint Director, <ORG>-first respondent herein, has filed a counter affidavit disputing various averments made by the petitioner. Section 2(13) of the Payment of Bonus Act, 1965, defining 'Employees' by which employee drawing more than 2,500 rupees would be ineligible for bonus. <ORG> may from time to time revise the eligibility limit and calculation ceiling taking into account the economic situation prevailing in the country, capacity to pay, etc. These ceilings were last revised in the year 1985. Further, the Payment of Bonus Act , 1965 envisages minimum statutory bonus of 8.33 per cent and a maximum of 20 per cent. The scheme of payment of Bonus to persons employed in certain establishments is on the basis of profit or productivity. The Government can revise a ceiling on salary or wage for entitlement of bonus depending on the conditions prevailing in the country. <ORG> while amending Section 2 (13) by Act 67 of 1985, substituted the words as "two thousand and five hundred rupees" for the words "one thousand and six hundred rupees". The amendment is with reference to salary or wages earned by the employees and not with reference to class III or IV employees. Section 10 of the Payment of Bonus Act, 1965 provides for payment of statutory minimum bonus of 8.33 percent and maximum of 20 per cent.

4. In the light of the above pleadings, I have heard Mr. <NAME>, learned counsel for the petitioner Employees' Association; Mr. <NAME>, learned Additional Solicitor General for respondents 1 and 2 and Mr. <NAME> for third respondent.

5. Mr. <NAME>, learned counsel for the petitioner <ORG>, by drawing my attention to Section 2(13) of the Payment of Bonus Act, 1965, would contend that the ceiling imposed therein is bad, unjustified, unrealistic and violative of Article 14 of the Constitution of India. He also contended that there is no such ceiling under Gratuity Act , Workmen Compensation Act and other Social Welfare Legislation. On the other hand, Mr. <NAME>, learned Additional Solicitor General, appearing for respondents 1 and 2, after pointing out the history of the enactment, contended that it is a legislation policy and it is for the <ORG> which alone can prescribe and increase the ceiling. He also contended that inasmuch as the Payment of Bonus Act is self contained, the same cannot be compared with the other legislation and the judicial decisions arising from those enactments. According to him, it must be left to the wisdom of the <ORG>. Mr. <NAME>, appearing for the third respondent, adopted the argument of the learned Additional Solicitor General.

6. In order to appreciate the rival contentions, it is useful to refer the definition "employee"

in Section 2(13) of the Payment of bonus Act, 1965 (hereinafter referred to as "the Act").

" Section 2(13) "employee" means any person (other than an apprentice) employed on a salary or wage not exceeding three thousand and five hundred rupees per mensem in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work of hire or reward, whether the terms of employment be express or implied;"

Section 12 of the Act is also relevant which speaks about calculation of bonus with respect to certain employees.

" Section 12 . Calculation of bonus with respect to certain employees.- Where the salary or wage of an employee exceeds two thousand and five hundred rupees per mensem, the bonus payable to such employee under Section 10 or, as the case may be, under Section 11 , shall be calculated as if his salary or wage were two thousand and five hundred rupees per mensem."

It is to be noted that at the time of enactment of the Act in 1965, the ceiling of a salary or wage was fixed at Rs.1,600/-, it was subsequently enhanced to Rs.2,500/-, and by Amendment Act 34/1995, the ceiling was raised to Rs.3,500/- with effect from 1-4-93. It is clear that after filing of the writ petition, the ceiling was increased from Rs.2,500/- to Rs.3,500/-. Mr. <NAME>, learned counsel for the <ORG> has contended that having included skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work in any industry, the eligibility criteria and fixing ceiling is unrealistic and unjustified. He further emphasized that the persons incharge of supervisory or managerial or administrative work undoubtedly get salary or wages more than the ceiling prescribed, accordingly they are forced to out of the pension benefit, which cannot be sustained. It is also stated that there is no ceiling to claim gratuity under the Payment of Gratuity Act , 1972 or compensation under Workmen Compensation Act .

7. Now I shall consider decisions cited by Mr. <NAME> in support of his claim that ceiling provided under Section 2(13) of the Act is bad and irrational. The first decision is in the case of <ORG> v. S.B.I., (1989 Supp. (1) S.C.C. 236). The grievance of the petitioners therein is that the instant Pension Plan governing the employee of the erstwhile <ORG> is outdated and does not provide reasonable pension required for survival. Before <ORG>, the submission was twofold: Firstly, the ceiling of Rs.1,300/- is unrealistic and secondly the calculation of pension at 50 per cent of the basic salary is uncalled for as it introduces a second ceiling. <ORG> has accepted the first contention, namely, that the ceiling of Rs.1,300/- is unrealistic. After holding that once it is realised that pension is a right and not a bounty, it would not be proper to leave the quantum of pension at the discretion of the Trustees in each case, <ORG> opined that the figure of Rs.1,300/- in the proposed Rule 20 (1) (a) should be replaced by the figure of Rs.2,400/-. First of all, the said decision deals with payment of pension under <ORG> Employees Pension and Gratuity Fund Rules and Regulations. On the other hand, we are dealing with bonus under a statute, namely, Payment of Bonus Act , 1965. Even in the said decision, <ORG> has altered the amount in the proposed rule. In such a circumstance, I am of the view that the said decision is not helpful to the petitioner's claim.

8. The next decision relied on by Mr. <NAME> is in the case of <CITATION> , . In that case the tenants of residential buildings were paying monthly rent exceeding Rs.400/- excepted from the protection of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. After holding that there is no justification at all for picking out the class of tenants of residential buildings paying a rent of more than four hundred rupees per month to deny them the rights conferred generally on all tenants of buildings residential or non-residential by the Act, that the tenants of non-residential buildings cannot be said to be in a disadvantageous position as compared with tenants of residential buildings and that the argument based on protection of the weaker section of the community is entirely inconsistent with the protection given to tenants of non-residential buildings who are in a position to pay much higher rents than the rents which those who are in occupation of residential buildings can ever pay, <ORG> struck down Section 30(ii) of the Act as violative of Article 14 of the Constitution of India.

9. <CITATION> , , <ORG>, while considering Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, has held that law should be just to all sections of the society and it should not be unjust to one and give disproportionate benefit to the other.

10. He also relied on M/s <NAME> v. State of J and K , wherein Their Lordships have held that in granting largess, the Government action must satisfy test of reasonableness and public interest.

11. Among these decisions, the decisions, namely, and (cited supra) arose under Rent Control Act, whereas (cited supra) is with reference to grant of largess by the <ORG>. Mr. <NAME>, learned Additional Solicitor General, by pointing out that unless those provisions are in pari materia with Payment of Bonus Act ,1965, the same cannot be cited as a binding decision for the issue in question. In this regard, he very much relied on a recent decision of <ORG> in <CITATION> . The following conclusion of Their Lordships is relevant: (para 5) "5......It is true that the courts while construing a provision of an enactment often follow the decisions by the courts construing similar provision of an enactment in pari materia. The object behind the application of the said rule of construction is to avoid contradiction between the two statutes dealing with the same subject. But in the present case, what we find is that the Madhya Bharat Land Revenue and Tenancy Act contains one integrated scheme providing for remedy to a pucca tenant claiming restoration of possession under Section 91 and 93 of the Act. The Madhya Bharat Land Revenue and Tenancy Act was repealed by the M.P. Land Revenue Code. In the repealing Act i.e. M.P. Land Revenue Code we do not find any provision like Section 93 of the Act. We are, therefore, of the view that Sections 91 , 92 and 93 of the Act are not in pari materia with the provision of Section 250 of the M.P. Code. It is not a sound principle of construction to interpret a provision of an enactment following the decisions rendered on a similar provision of an enactment when two statutes are not in pari materia....."

11(a). <CITATION> ., reported in (2001) 3 <ORG> Cases 135, the <ORG> has held thus: (para 19) "19. We have considered the arguments of both the parties. In our view it is clear that the interpretation has to be on the basis of the expression "agricultural produce" as set out in Section 2(a) of the said Act. In so determining decisions based on different statutes, statutes such as sales tax laws can be of no assistance. All the cases relied upon by Mr. <NAME> are cases under the taxing statutes where the interpretation has been given on the basis of the terms as defined in those statutes."

12. <CITATION> have held thus: (paras 12 and 13) "12. <CITATION> it was held that cognate and pari-materia legislation should be read together as forming one system and as interpreting and enforcing each other. <CITATION> it was held that Code of Civil Procedure has to be read along with the Limitation Act . <CITATION> , it was held that Prevention of Corruption Act should be read along with the Evidence Act . <CITATION> . Chhoitaka Bibi it was held that the Code of Civil Procedure has to be read along with the Court Fees Act . <CITATION> this Court observed that the Companies Act should be read along with the Transfer of Property Act .

13. From the aforesaid decisions it clearly follows that it is permissible to read the provisions of the two Acts together when the same are complementary to each other..."

13. <CITATION> ((2001) 7 <ORG> Cases 71), <ORG> has considered the issue relating to interpretation of Statutes. The following conclusion is relevant (para 13) "13. We have considered the submission made by the parties. The settled principles of interpretation are that the court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly, if there is a defect or an omission in the words used by by legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there."

14. <CITATION> , the following conclusion is pressed into service: (para 52) "52. There is no provision in the Act which negates the power of <ORG> to grant pardon. <ORG> has power to grant pardon at any stage of the proceedings. The power under Section 307 cannot be denied merely because no commitment of the case is made to <ORG>. Learned Solicitor-General, in our view, rightly contends that the other statutes are only an external aid to the interpretation and to rely upon the omission of a provision which is contained in another different enactment, it has to be shown that the two Acts are similar which is not the position here. The scheme of the two Acts is substantially different as has been earlier noticed by us...."

15. <CITATION> have arrived at the following conclusion: (para 23) "23. We find that Kantilal Trikamlal case supports the view taken in Getty Chettiar case . Added to this, Section 2(15) of the Estate Duty Act, defining "property" came up for consideration in Kantilal Trikamlal case (cited supra). We may state here itself that the words and expressions defined in one statute as judicially interpreted do not afford a guide to construction of the same words or expressions in another statute unless both the statutes are pari materia legislation or it is specifically so provided in one statute to give the same meaning to the words as defined in the other statute. The aim and object of the two legislations, namely, the Gift Tax Act and the Estate Duty Act are not similar."

16. All the above decisions of <ORG> make it clear that the words and expression defined in one statute as judicially interpreted do not afford a guide to construction of the same words or expressions in another statute unless both the statutes are pari materia legislations. Further, it is clear that the other statutes are only an external aid to the interpretation and to rely upon the omission of a provision which is contained in another different enactment, it has to be shown that the two Acts are similar. It is also clear that it is permissible to read the provisions of the two Acts together when the same are complementary to each other. It is also stated that the <ORG> while construing a provision of an enactment often follow the decisions by the courts construing similar provision of an enactment in pari materia. The object behind the application of the said rule of construction is to avoid contradiction between the two statutes dealing with the same subject. But, in the present case we are concerned with the ceiling prescribed for Payment of Bonus to the Employees. The cases relied on by Mr. <NAME> are cases under Tamil Nadu Buildings (Lease and Rent Control) Act and Bombay Rent Control Act where the interpretation has been given on the basis of the terms as defined in those statutes. Accordingly, as rightly argued by the learned Additional Solicitor General, those principles cannot be applied to the present case.

17. Another decision very much relied on by the learned Additional Solicitor General is in the case of <CITATION> (2001 (1) CTC 309). Before <ORG>, one of the contentions of the petitioner was that the bonus, which the <ORG> has directed the Management to pay was in the nature of deferred wages, that impugned legislation had the effect of freezing wages, and that <ORG> not being vested with the power to reduce the wages, the legislation is invalid on that account as well. On behalf of <ORG>, it was contended before <ORG> that the power of legislation is plenary and it is open to the law maker to amend or repeal existing legislation so long as it acts within its field of legislative competence, and that such power extends to taking away vested rights. It was further submitted that in matters of economic policy, the <ORG> has wide latitude and is to be allowed play at the joints. While construing the amendment made in the <ORG> <ORG> of India Act , <ORG> has concluded thus: (para 28 and 39) "28. The legislation with which we are concerned in this case has already been set out. The amendment made by the impugned enactment is to the <ORG> <ORG> of India Act and other enactments concerning other public sector <ORG>s. By Section 7(1) of the <ORG> <ORG> of India Act, the <ORG> was vested with the power to change the conditions of service of those of its employees, who had earlier served in the Imperial <ORG>. Those employees cannot assert that they have a vested unalterable right in their terms and conditions of the employment. So far as other employees are concerned, by Section 43 of the Act, the <ORG> is empowered to determine the terms and conditions of service. The <ORG> <ORG> of India Act , as also the other Acts amended by this amending Act, are not beyond the pale of the legislative power of the <ORG>. <ORG> has undoubted power to legislate on the topic of bonus and <ORG> is not precluded from legislating on that topic in enactments other than the Payment of Bonus Act . The principles, including custom, on basis of which bonus is payable, are capable of being altered by legislation.

39. The argument that the impugned legislation is invalid on the ground that it has expropriated the wages of the workmen bonus, according to petitioner being deferred wages, is wholly untenable. Bonus, after the enactment of the Payment of Bonus Act is a statutory right. The bonus though calculated on basis of wages, can no longer be termed as a deferred wage, though that description had been given to it by the <ORG> prior to the enactment of the Bonus Act . While bonus may form part of wages for purpose of some of the other enactments governing employees, the right to receive bonus and the extent is as regulated or permitted under the Bonus Act ...."

It is settled that in matters of economic policy, the <ORG> must have a larger area in which to make its decisions without the supervision of the <ORG>, as the <ORG> is the better Judge of what the policy should be in relation to matters of economic. Likewise, <ORG> has power to legislate on the topic of bonus. The <ORG> having legislated that bonus to the employees of <ORG> shall be payable only in accordance with and to those eligible under the Payment of Bonus Act , it is no longer open to the employees to claim bonus on the basis of custom de hors the provisions therein. Likewise, bonus after the enactment of Payment of Bonus Act , 1965, is a statutory right. The right to receive bonus and extent is as regulated or permitted under the Bonus Act .

18. To sum up, after the enactment of the Payment of Bonus Act , the right to receive bonus and the extent is as regulated or permitted under the Bonus Act . There is no scope for claiming bonus de hors the provisions therein. Though in other enactments, the differential treatment or ceiling is found to be bad, in view of the fact that those enactments cannot be compared with the Payment of Bonus Act , those decisions are not helpful to the case on hand. The reference made to the Rent Control legislation of the State of Tamil Nadu and Bombay, Payment of Gratuity Act , Workmen Compensation Act are not in pari materia with section 2(13) of the Payment of Wages Act. In such a circumstance, it is not fair principle of construction to interpret a provision of enactment following a decision rendered in a similar provision of the enactment when the statutes are not in pari materia. The cases relied on by Mr. <NAME> are cases under different statutes where the interpretation has been given on the basis of the terms given in those statutes. It is also settled law that it is permissible to read the provisions of two Acts together when the same are complementary to each other. It is true that in <CITATION> (2002 (1) LLJ 918, a Division Bench of <ORG> has held that prescribing wage ceiling of Rs.1,600/- per month under Payment of Wages Act , 1936 had become obsolete and unreal and issued appropriate direction for change in the Act. In our case, I have already referred to the fact that at the time of enactment of Bonus Act , the ceiling was fixed at Rs.1,600/- and the same was increased to Rs.2,500/- and again by Act 34/1995, it was further increased to Rs.3,500/-. Likewise, the figure mentioned in Section 12 of the Act also increased periodically. I have already held that Section 12 speaks about computation of bonus. In the light of the fact that <ORG> is very well aware of the grievance of persons concerned and it increases the ceiling limit then and there, I am of the view that while holding that the impugned legislation is valid, no direction is required to be given by this Court. I hold that Section 2(13) of the Payment of Bonus Act, 1965 defining an employee is constitutional and the same is valid in law. The Bonus Act envisages minimum statutory bonus of 8.33 per cent and a maximum of 20 per cent. The scheme of payment of bonus to persons employed in certain establishments is on the basis of profit or productivity. <ORG> may from time to time revise the eligibility limit taking into account the economic situation prevailing in the country, capacity to pay etc. Inasmuch as the ceiling limit was increased to Rs.3,500/- in 1995, this Court hopes that <ORG> may revise the eligibility limit, more particularly, in view of increased salary/wage payable to Class III and IV employees. With the above observation, I hold that Section 2(13) defining an employee in the Payment of Bonus Act , 1965 is constitutional, valid in law and the same is not liable to be struck down. Accordingly, the Writ Petition fails and the same is dismissed. No costs. Consequently, both the <ORG>., are closed.


PETITIONER: UNION OF INDIA & ORS. Vs. RESPONDENT: N.R. BANERJEE & ORS. DATE OF JUDGMENT: 16/12/1996 BENCH: K. RAMASWAMY, G.T. NANAVATI ACT: HEADNOTE: JUDGMENT:

O R D E R Leave granted.

These appeals by special leave arise from the orders of <ORG>, Jabalpur Bench, made on August 14, 1996 in OA Nos.219/95 and 237/96. The controversy involved relates to promotion to the post of Senior General Manager in <ORG> under India Ordinance Factories Services Rules. The question for consideration is; as to when the vacancies in the above posts would arise? The grade and scale of pay for the said post is Rs.3700-8000/-. For the year 1994-95, panel of successful candidates was required to be prepared. According to the appellants, there were no clear vacancies as on April 1994. Four members in the above grade were to retire in that year. Proposal for filling up the ensuing vacancies from <ORG> was sent to the <ORG> on December 22, 1993. The <ORG> had communicated to <ORG> its approval on February 8, 1994. A.C.Rs. of the eligible candidates were approved on August 16, 1994 and the incumbent members joined as members of the Board on August 22, 1994, September 03, 1994, October 6, 1994 and March 1, 1995. Consequently the <ORG> met on March 15, 1995 for selection of Officers to fill up the four vacancies.

On this factual matrix, it is contended for the appellants that the crucial date for the <ORG> meeting for selection should be April or May 1995 for selection of candidates to fill up the vacancies of the year 1994-95. The A.C.Rs. recorded of all the candidates falling within the zone of consideration and approved by the <ORG>, as on March 31, 1994, are required to be looked into and merits adjudged. The <ORG>, therefore, was not right in directing the <ORG> to ignore the A.C.Rs. for the year 1994 and consideration of the candidates eligible by then upto March, 1993. The <ORG> was to be constituted as on April 1, 1994. Resultantly, the direction were given in paragraphs 25 and 28 for consequential action. <NAME>, learned Additional Solicitor General, contends that the view of the <ORG> is not correct in law. As per the procedure, preparation of the panel of candidates for consideration by the <ORG> to fill up the clear vacancies as on April 1994 is necessary. A.C.Rs. are prepared on the basis of the performance during financial year which would be October 1 of the year. In this case, the A.C.Rs. of the incumbents are written on the financial years basis;. It was approved by the <ORG> in March 31, 1995. Therefore, the <ORG> could not have got approved A.C.Rs. before that date, namely, as held by the <ORG> on March 19, 1993. The direction, therefore, that the <ORG> in its proceedings should take into consideration A.C.Rs. of all the eligible candidates as on April, 1993 is incorrect. Though, prima facie, we are impressed with the arguments of <NAME>, on deeper probe and on going through the procedure laid by <ORG>, we find no force in the contention. Preparation of the action Plan for consideration by the <ORG> of the respective claims of the officers within the Zone and thereafter for setting in motion the preparation of panel on year wise basis, is elaborately mentioned. In case of their failure to do so, what further procedure is required to be followed is also indicated in the rules. It thereby manifests the intention of the rue-maker that the appellant-<ORG> should estimate the anticipated vacancies, regular vacancies and also vacancies arising thereafter due to various contingencies and it should also get the A.C.Rs. prepared and approved. it is also made clear that the <ORG> should sit on regular basis to consider the cases of the eligible candidates within the zone of consideration. The object is clear that the <ORG> should keep the panel ready in advance so that the vacancies arising soon thereafter may be filled up from amongst the approved candidates whose names appear in the panel. In that behalf, it is seen that in the guidelines issued by the <ORG> in Part I of clause (49) dealing with Functions and Composition of Departmental promotion Committee etc. necessary guidelines have been enumerated. It envisages that a post is filled upon by promotion where the Recruitment Rules so provide. In making promotions, it should be ensured that suitability of the candidates for promotion is considered in an objective and impartial manner. In other words, the consideration of the candidate is not clouded by any other extraneous considerations like caste, creed, colour, sect, religion or region. In consideration of claims, merit alone should enter into objective and impartial assessments. The object appears to be that the A.C.Rs. be written by competent officer and approved by superior officer objectively and impartially without being influenced by any extraneous and irrelevant consideration, to augment efficiency in public service and to improve competence. For the purpose of selection, <ORG> should be formed in each Ministry/Department/Office, whenever an occasion arises, for promotions/confirmations etc. The D.P.Cs. so constituted shall judge the suitability of officers for:

(a) promotions to selection as well as non-selection posts;

(b) confirmation in their respective grades/posts;

(c) assessment of the work and conduct of probationers for the purpose of determining their suitability for retention in service of their discharge from it or extending their probation; and

(d) consideration of cases of <ORG> servants for crossing the Efficiency Bar.

Rule 2.1 relates to composition of the <ORG> for Group A and Group B Officers. Members included in DPCs should be officers who are at least one step above the posts in which promotion/confirmation is be made as indicated thereunder. This is consistent with the law laid by this Court in <CITATION> . [(1996) 8 Sec 762] wherein it was held that the object of writing the confidential report is two-fold, i.e., to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. The officer should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to his efficacy and efficiency of public service, the confidential reports should be written by a superior officer of high rank. There should be another higher officer in rank above the officer who has written confidential report to review such report.

Part II of the guidelines relating to the frequency of meeting of the <ORG> Para 3.1 indicates that the D.P.Cs should be convened at regular annual intervals to draw panels which could be utilised for making promotions against the vacancies occurring during the course of a year. In other words, the life of the penal is one year. For this purpose, it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel, by collecting relevant documents like A.C.Rs., integrity certificates, seniority list etc. for placing before the <ORG>

<ORG>. should be convened every year, if necessary, on fixed date, i.e. 1st of April or May. In the middle of the para, by way of amendment brought on May 13, 1995, it postulates that very often action for holding <ORG> meeting is initiated after the vacancy has arisen. This results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of <ORG>. should be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year. Under para 3.2, the requirement of convening annual meetings of the <ORG>. should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year in question. It would, thus, be seen that <ORG>. are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required material should be collected in advance and merit list finalised by the appointing authorities and placed before the <ORG> for consideration. This requirement can be dispensed with only after a certificate is issued by the appointing authority that there are no vacancies to be filed by promotion, or that no officers are due for confirmation, during the year in question.

Part III deals with preparatory action plan for consideration for promotion. Para 4.1 reads as under;

"It is essential that the number of vacancies in respect of which a panel is to be prepared by a <ORG> should be estimated as accurately as possible. For this purpose, the vacancies to be taken into account should be the clear vacancies arising in a post/grade/service due to death, retirement, resignation, regular long term promotion and deputation or from creation of additional posts on a long term. As regards vacancies arising out of deputation, only those cases of deputation for periods exceeding one year should be taken into account, due note, however, being kept also of the number of the deputationists likely to return to the cadre and who have to be provided for. Purely short term vacancies created as a result of officers proceeding on leave, or on deputation for a shorter period, training etc., should not be taken into account for the purpose of preparation of a panel. In cases where there has been delay in holding <ORG>s for a year or more, vacancies should be indicated year- wise separately."

Crucial date for determining eligibility has been dealt with thereunder. By an amendment brought w.e.f. July 19, 1989, it is stated that relevant dates for determining eligibility of the officers for promotion would be, where A.C.Rs. are written calendar yearwise, 1st July of the year and where the A.C.Rs. are written financial yearwise, 1st October of that year. The other details prescribed in Chapter IV are not material for the purpose of this case. Part 6.4.1 deals with preparation of yearwise panels by D.P.C. which reads as under;

"Where for reasons beyond control, the <ORG> could not be held in year(s), even though the vacancies arose during that year (or years), the first <ORG> that meets thereafter should follow the following procedures :

(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.

(ii) Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.

(iii) Prepare a `Select list' by placing the select list of the earlier year above the one for the next year and so on;

It would, thus, be seen that the authorities are required to anticipate in advance the vacancies for promotion on regular basis including long term deputation posts and additional posts created and then to take the action plan in finalising the A.C.Rs. preparation of the select list and place necessary material before the D.P.C. for consideration of the candidates within the zone of consideration, as are found eligible for the relevant year/years.

<ORG> in the present case was directed to consider the cases of all the eligible candidates within the zone of consideration so that there will not be any heart burning among the eligible persons whose claims have been withheld for consideration for promotion to the higher post. In S.K. Rizvi & Ors. vs. <ORG> [1993 Supp. (3) SCC 575] the mandatory duty of the preparation of the select list of the officers for promotion to <ORG> has been indicated in para 35 of the judgment at page 605 thus: "We, therefore, hold that preparation of the select list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the State Government concerned and this Court takes serious note of wanton infraction".

It would thus be seen that the claims of the candidates eligible have to be considered for promotion objectively and dispassionately, with a sense of achieving many-fold purpose (1) affording an opportunity to an incumbent to improve excellence, honesty, integrity, devotion to public duty; (2) inculcating discipline in service; (3) afford opportunity to every eligible officer within zone of consideration for promotion to higher post or officer; and (4) ensuing that the Committee regularly meets and considers their claim objectively, impartially with high sense of responsibility in accordance with the procedure and finalisation of the list in advance so as to fill up vacancies arising in the year from the approved panel without any undue delay. They are the salutory principles, purpose and the policy behind the above rules and the <ORG> should follow them.

Considered from that perspective, the question arises: whether the view taken by the <ORG> is justified in law? It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right in him/her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary. <CITATION> [(1991) 2 SCR 567], <ORG> had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The <ORG> is under no legal duty to fill up all or any of the vacancies even thought he <ORG> acts in arbitrary manner. <CITATION> . [(1993) Supp. 3 SCC 268] it was held that mere inclusion of one's name in the panel does not confer on him/her any indefeasible right to appointment. It was further held that the purpose of making panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated. <CITATION> . [] it was held that the mere fact that a candidate's name finds a place in the select list as a selected candidate for appointment to a post, does not confer on him/her an indefeasible right to be appointed in such post in the absence of any specific rule entitling him to such appointment. <CITATION> 1986 & Ors. [] it was held that a person who is selected and empanelled does not on account of empanelment alone acquire any indefeasible right to appointment. Empanelment is, at the best, a condition of eligibility for the purposes of appointment and that by itself does not amount to selection or creation of a vested right to appointment unless relevant rules state to the contrary. However, in the light of the above principles and in the light of the clear rules extracted hereinbefore, it is seen that the exercise of preparation of the panels is undertaken well in advance to fill up the clear vacancies of anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, yearwise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. <CITATION> [AIR 1987 SC 847], this Court had pointed out with respect to the prescription of the limitation of one year of the waiting list thus.

"The reason underlying the limitation of the period of list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the post in the succeeding year and being selected for appointment."

It is true that the material furnished before us would indicate that action was taken on December 22, 1993 by <ORG> and circulated for action to be taken by the Government and thereafter <ORG> was consulted. Action taken on this material should have been taken much earlier to the date on which it was taken since they knew that four members were due to retire in August, September, October 1994 and March 1995. There were anticipated vacancies likely to arise on permanent basis and promotion to them was to be made on regular basis. In other words, they were all clear vacancies. So they were to be finalised before April 1994 and the confidential reports should have been approved before 31st March 1993 and all eligible candidates within the zone of consideration as on the date of D.P.C. were entitled to be considered. The direction given be the <ORG> referred to above is clearly in accordance with the procedure indicated hereinbefore. Therefore, we do not find that the orders are vitiated by any error of law warranting interference.

The appeals are accordingly dismissed. No costs. Since the <ORG> has given time to constitute the <ORG> and finalise the matter within 45 days, time is extended for 45 days from today. It is needless to mention that all those found eligible are required to be appointed.


PETITIONER: <NAME> Vs. RESPONDENT: STATE OF U.P. & ORS. DATE OF JUDGMENT: 25/04/2000 BENCH: D.P.Wadhwa, S.S.Ahmad JUDGMENT:

<NAME>, J.

Leave granted. What is "motive"; what is "foundation"; what is the difference between the two; these are questions which are said to be still as baffling as they were when <NAME>, J. in <NAME> vs. <ORG> of Punjab, (1974) 2 SCC 831 = 1975 (1) SCR 814 = AIR 1974 SC 2192, observed as under : "Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however, harmlessly the order may be phrased. And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be `the substance of the matter' and the `foundation' of the order. When does `motive' trespass into `foundation'? When do we lift the veil of `form' to touch the `substance'? When the <ORG> says so. These `Freudian' frontiers obviously fail in the work-a-day world." But, as we shall presently see, the law, on account of recent judgments concerning the services of a probationer, is fairly well-settled and there is no cause for being confounded or bewildered. The perplexity which, at one time, surrounded the torrid question involved in this case has yielded to the clarity of reasons propounded by this <ORG> from time to time in recent times to which a reference shall be made during the course of this discussion. The appellant was recruited on 1.10.1985 as a Constable in <ORG>, U.P. under the U.P. Pradeshik Armed Constabulary Act, 1948. He completed his training on 6th of September, 1986 and was, thereafter, placed on probation for a period of two years. He completed his period of probation on 5th of September, 1988 but a year later, on 19th of July, 1989, his services were terminated by a simple notice in terms of Rule 3 of the U.P. Temporary <ORG> Servants (Termination of Service) Rules, 1975. The order of termination was challenged by the appellant before <ORG> which, by its judgment dated 18.1.1993, allowed the claim petition and set aside the order dated 19.7.1989 by which the services of the appellant were terminated. Respondents 1 and 2, thereafter, approached the High <ORG> through a Writ Petition which was allowed on 27th of November, 1997 and the judgment passed by the <ORG> was set aside. Learned counsel for the appellant has contended that the order by which the services of the appellant were terminated, though innocuous apparently, was, in fact, punitive in nature. The appellant, it is contended, could not have been removed from service without holding a regular departmental enquiry. It is further contended that the courts including the <ORG> constituted under the U.P. Public Services (<ORG>) Act, 1976 have full jurisdiction to go behind the order to find out whether it was an order of termination simpliciter or it was an order passed by way of punishment. It is pointed out that this aspect of the matter was considered by the <ORG> which, on the basis of the facts set out in the counter-affidavit filed on behalf of the respondents as also the entire service record of the appellant which was produced before it, came to the conclusion that the order was punitive in nature. This finding, it is contended, could not have been disturbed by the High <ORG> in a Writ Petition under Article 226 of the Constitution. Learned counsel for the respondents has, on the contrary, contended that the appellant was a temporary employee and, therefore, his services could be terminated at any time by giving him a month's notice in terms of U.P. Temporary <ORG> Servants (Termination of Service) Rules, 1975. In the Counter-Affidavit filed before the <ORG> before which the order dated 19.7.1989 (termination order) was challenged by the appellant, it was, inter alia, stated that on 24th of June, 1989 while camping at Ghat Varanasi for Flood Relief Training, a quarrel had taken place between two Constables as a result of which Constable <NAME> used filthy and unparliamentary language against Constable <NAME>. He also caused injuries to Constable <NAME> by kicks and fists. He was joined by Constable <NAME>. Other Constables also joined the fray. A preliminary enquiry was conducted by <NAME>, Assistant Commandant, P.A.C. and a few constables including the appellant were found guilty of indiscipline and misbehaviour and it was for this reason that the services of the appellant were terminated. The respondents admitted in the counter- affidavit that there was no adverse material against the appellant before the incident in question. The original records which were produced before the <ORG> and were scrutinised by it indicated that the order by which the services of the appellant were terminated was passed on account of his alleged involvement in the quarrel between the constables at the Ghat Varanasi Camp. The <ORG> has found as under:- "The preliminary enquiry file No.Ja-2/89 relating to the petitioner and other constables of 34th Bn. P.A.C. Varanasi from page 21/34 to 22/33 dated 26.6.89 shows that the enquiry was conducted by Sri <NAME>, Assistant Commandant, 34th Bn. P.A.C. Varanasi and in the preliminary enquiry report he concluded at pages 21/34 to 22/37 that the petitioner along with others had indulged in a misconduct of hurling blows and used filthy language to the superior officers of the Department and he was found guilty along with others for the said misconduct and misbehaviour. Thereafter on internal page 6 the impugned order of termination dated 19.7.89 was passed in respect of the petitioner and on the same day he was served the copy of the order." It was in view of the above finding that the termination order was held to be punitive in nature and was consequently set aside by the <ORG> but the High <ORG> relying upon the decision of this <ORG> in <CITATION> ,  = 1991 (1) SCR 29, quashed the order of the <ORG>. The first contention of the learned counsel for the appellant is about the status of the appellant. Learned counsel has contended that the appellant could not have been legally removed from service, except by way of disciplinary action in accordance with the requirements of Article 311(2) of the Constitution. It is contended that after completion of the period of probation, the appellant had acquired `permanent' status and, therefore, his services could not have been terminated by a mere notice or a month's pay in lieu thereof. This argument cannot be accepted. An assertion that on completion of the period of probation the appellant had acquired `permanent' status is based on a misreading of the provisions of Para 541 of <ORG> Regulations, relevant portion of which is quoted below : "541. (1) Recruits will be on probation for a period of two years, except that -- (a) those recruited directly in <ORG> or <ORG> will be on probation for three years, and (b) those transferred to <ORG> will be governed by the directions contained in paragraph 84 of the Police Regulations. If during the period of probation their conduct and work have been satisfactory and they are approved by the Deputy Inspector General of Police at the end of the period of probation for service in the force the Superintendent of Police will confirm them in their appointment." A perusal of the above provision would indicate that the period of probation is two years. The Regulation is silent as to the maximum period beyond which the period of probation cannot be extended. In the absence of this prohibition, even if the appellant completed two years of probationary period successfully and without any blemish, his period of probation shall be treated to have been extended as a `permanent' status can be acquired only by means of a specific order of confirmation. This <ORG> in <CITATION> (1968) 3 SCR 1 = AIR 1968 SC 1210 ruled out the proposition of automatic confirmation on completion of the period of probation. This <ORG> ruled that the `permanent' status can be acquired only by a specific order confirming the employee on the post held by him on probation. To the same effect is the decision in <NAME> vs. <ORG>  = 1980 (1) SCR 487 = AIR 1980 SC 57. <CITATION>  = 1991 (2) SCR 320 = AIR 1991 SC 1402, the same principles were reiterated. In view of the above, the contention that the appellant had acquired `permanent' status cannot be accepted. His status was that of a probationer. Now, it is well-settled that the temporary <ORG> servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The courts can, therefore, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is as innocent as worded. (See: <CITATION> , AIR 1958 SC 36 = 1958 SCR 828). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the <ORG> to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was "founded" on those factors or other disqualifications. Following the decision of <NAME> case (supra), this <ORG> in <CITATION> , AIR 1960 SC 689, held that if the services of a probationer are terminated on the basis of an enquiry into the allegations of misconduct and inefficiency, the order would be punitive. It was pointed out that in the case of a probationer, it is always open to the <ORG> to hold an enquiry merely to assess the merits of the employee to find out whether he was fit to be retained in service and confirmed. In another case relating to a probationer, namely, in <CITATION> , 1961 (1) SCR 606 = AIR 1961 SC 177, where the services were governed by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules which provided that where the services of a probationer were intended to be terminated either during the period of probation or at the end of that period for any fault or on account of his unsuitability, he would be apprised of the grounds of unsuitability and would also be afforded an opportunity to show-cause against it before orders are passed against him, it was held that the termination order would not become punitive merely because of an antecedent enquiry but the real object or purpose of the enquiry had to be found out whether it was held merely to assess the general unsuitability of the employee or it was held into charges of misconduct or inefficiency etc. <CITATION> , AIR 1963 SC 1552 = 1964 (2) SCR 135, which again was a case relating to a probationer, it was held that on account of Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules if the enquiry was held for the limited purpose of finding out whether the employee was fit to be retained or not, the said enquiry would not make the order punitive as the enquiry could not be related to any misconduct of the employee. This view was reiterated in <CITATION> , AIR 1964 SC 449. <CITATION> , AIR 1963 SC 531 = 1963 Supp.(3) SCR 716, the order by which the services of the employee were terminated was an order simpliciter in nature, which was innocuously worded, but it was held by this <ORG> that the form of the order was not decisive and the <ORG> could go behind that order to find out whether it was founded upon the misconduct of the employee. These cases, namely, <CITATION> AIR 1960 SC 689; <CITATION> (1961) 1 SCR 606 = AIR 1961 SC 177; <CITATION> (1963) Supp. (3) SCR 716 = AIR 1963 SC 531; and <CITATION> AIR 1964 SC 449 were considered by this <ORG> in <CITATION> (1964) 5 SCR 190 = AIR 1964 SC 1854 where the services of the appellant, who was a temporary employee, were terminated by giving him a simple notice specifying therein that the services would stand terminated with effect from the date mentioned therein. But, before the termination of his services, he was called upon to explain certain irregularities and was also asked to submit his explanation, but no regular departmental enquriy was held. It was held that since no punitive action was taken against the appellant, there was no question of the applicability of Article 311(2) of the Constitution. In another significant decision in <CITATION> (1968) 3 SCR 234 = AIR 1968 SC 1089 where the respondent, who was officiating in <ORG> (Executive Branch) was reverted to his substantive post in <ORG> after issuing him a charge sheet to which a reply was submitted by the respondent but the disciplinary enquiry was not proceeded with, and an order of reversion was passed, it was held that the order could not be treated to have been passed by way of punishment. The <ORG> laid down the following propositions : "1. 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 not attract the operation of Art. 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service is unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Art. 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Art. 311 , i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article." These principles as also the principle laid down in <NAME>'s case (supra) were reiterated by this <ORG> in <CITATION> ; <CITATION>  = 1971 (2) SCR 191 = AIR 1971 SC 1011; <CITATION> . (1974) 3 SCR 754 = AIR 1974 SC 1317 =  and it was laid down that in order to attract the provisions of Article 311(2) it has to be seen whether the misconduct or negligence was a mere motive for the order of reversion or termination or whether it was the very foundation of that order. It was again reiterated that the form of the order was not conclusive of its true nature and the <ORG> has to examine the entirety of circumstances preceding or attendant on the order of termination. To the same effect is the decision of this <ORG> in <CITATION>  = 1974 (2) SCR 335 = AIR 1974 SC 423, which related to reversion and in which reliance was placed on two earlier decisions in <CITATION> AIR 1962 SC 8 = 1962 (1) SCR 886 and <CITATION> AIR 1962 SC 794 = 1962 Supp. (2) SCR 92. It was, however, laid down that if the order visits the employee with penal consequences, the order would be punitive. It was for this reason that the order of reversion in that case was held to be bad. In the same year, came the <ORG> decision of this <ORG> in <NAME> vs. <ORG> of Punjab  = AIR 1974 SC 2192 = 1975 (1) SCR 814, in which "Motive" and "Foundation" theory was reiterated and it was laid down that the question whether an order terminating the services of a temporary employee or a probationer was by way of punishment or not would depend on the facts and circumstances of each case. The form of the order, it was observed, was not conclusive and an innocuously worded order, terminating the services of a temporary employee or a probationer may, in the facts of the case, be found to have been passed on account of serious and grave misconduct in utter violation of Article 311(2) of the Constitution. This decision was followed in <CITATION> AIR 1975 SC 1096 =  and the termination order, regarding which a concurrent finding of fact was recorded by the trial court, the lower appellate court and also by the High <ORG> in second appeal that it was punitive in nature, was held to be bad. While the judicial pronouncements stood at that stage, the entire case law was reviewed by this <ORG> in <CITATION> AIR 1976 SC 2547 =  = 1977 (1) SCR 462, in which it was contended that the legal and Constitutional position with regard to an order of termination was not settled as there were conflicting decisions of this <ORG> on that question. This contention was not accepted and on a review of the entire case law, including the Seven- Judge Bench decision in <NAME>'s case (supra), it was laid down that the <ORG> has consistently held that the "motive", in passing an order of termination or reversion, operating in the minds of the <ORG>. was not a relevant factor for determining whether the order was passed by way of punishment. What was determinative of the true nature of the order was not its exterior form but the "foundation" on which it was based. If misconduct or negligence was the foundation of the order of termination, or for that matter, reversion, the order would be punitive in nature. The <ORG> also referred to the decision in <CITATION>  = AIR 1976 SC 1766 = 1976 (3) SCR 540, in which it was observed as under : "We think that the principles involved in applying Article 311(2) having been sufficiently explained in <NAME> case (AIR 1974 SC 2192) (supra) it should no longer be possible to urge that <NAME> case (supra) could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But the application of the same law to the different circumstances and facts of various cases which have come up to this <ORG> could create the impression sometimes that there is some conflict between different decisions of this <ORG>. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts." ( Emphasis supplied ) Termination simpliciter of a temporary <ORG>. servant on the ground of unsuitability does not attract the provisions of Article 16 , nor is the protection under Article 311(2) of the Constitution available to a temporary <ORG>. servant unless the termination involved "stigma", was the dictum laid down by this <ORG> in <CITATION>  = AIR 1981 SC 965 = (1981) 3 SCR 165. <CITATION>  = (1980) 1 LLJ 137 = 1980 (2) SCR 146 = AIR 1980 SC 1896, it was laid down that a <ORG> or <ORG> is entitled to find out the true nature of the termination order, namely, whether it is punitive or not. In this regard, the form of the order will not be decisive and the <ORG> can lift the veil to see the true nature of the order. The <ORG> observed that the substance, not semblance, governs the decision. The <ORG> further observed that what was decisive was the plain reason for the discharge and not the strategy of a non-enquiry. If the basis was not the misconduct, the order could be saved. The <ORG> further observed that the mere fact that after being satisfied of the guilt the <ORG>. abandons the enquiry and proceeds to terminate the services by a simple order, would not be the relevant factor in considering the true nature of the order. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion would be "dismissal" even if full benefits, as on simple termination, are given and non-injurious terminology is used. The tests for determining whether termination was a termination simpliciter or by way of punishment laid down in earlier decisions were reiterated in <CITATION> .)  = (1980) 2 LLJ 155 = 1980 (3) SCR 603 = AIR 1980 SC 1242 and <CITATION> .  = (1980) 2 LLJ 161 = (1980) LIC 747. The latter was a case of termination simpliciter on account of the drive launched by the Inspector General of Police for weeding out Police Officers who were unsuitable or unfit to be continued in service. On the facts and circumstances of that case, it was held that the question whether the appellant, who was a temporary servant, should be retained in service, directly arose during the drive launched to weed out unsuitable officers and it was for this reason that the termination order was upheld, particularly as there was nothing to show that the termination order was made by way of punishment. In another decision which, incidentally, again is <CITATION> .  = AIR 1985 SC 84 = (1985) 2 SCR 1, the <ORG> held that where the services of a temporary <ORG>. servant are terminated on the ground that his reputation for corruption makes him unsuitable for retention in the service, the <ORG>, or for that matter, any statutory employer, must take great care when proceeding to terminate a career on the ground of unsuitability, to ensure that its order is founded on definable material, objectively assessed and relevant to the ground on which the termination is effected. It was observed that the <ORG> will view with great disfavour any attempt to circumvent the requirement of Article 311(2).  <CITATION>  = 1984 (2) SCR 453 = AIR 1984 SC 636, it was found on a consideration of the entire record that the real foundation for the order of discharge of the appellant- probationer was the alleged act of misconduct. This, it was observed, made the impugned order punitive in nature and was, therefore, held to be bad. <NAME> vs. <ORG> of U.P. & Ors. (1988) 2 LLJ 99 was a case of a temporary Constable in <ORG> whose services were terminated by an apparently innocuous order. On scrutiny it was found that the services were terminated on account of his alleged participation in activities of unrecognised <ORG>. The termination order, therefore, was held to be bad as having been passed without following the procedure prescribed under Article 311(2) of the Constitution. <CITATION> . 1987 Supp. SCC 739 = AIR 1987 SC 2408 = 1988 (1) SCR 501, it was held that for finding out the effect of the order of termination, the concept of "motive" and "foundation" has to be kept in mind. It was further observed that no strait-jacket test can be laid down to distinguish the two, namely, the `motive' and the `foundation'. Whether motive has become the foundation has to be decided by the <ORG> with reference to the facts of a given case. It was also observed that `motive' and `foundation' are certainly two points of one line - ordinarily apart but when they come together, `motive' gets transformed and merged into `foundation'. It was also observed that since in regard to a temporary employee or an officiating employee an assessment of the service is necessary, merely because the <ORG> proceeds to make an assessment and records its views, it would not be available to be utilised to make the order of termination, following such assessment, punitive in character. It was observed by this <ORG> that in the relationship of master and servant there is a moral obligation to act fairly. There should be an assessment of the work of the employee and if any defect is noted in his working, the employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiency, indifference or indiscretion may be with the employee by inadvertance and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, it was observed, it would be arbitrary to give a movement order to the employee on the ground of unsuitability. <CITATION>  = 1991 (1) SCR 29, which has been relied upon by the High <ORG> in the impugned judgment, it was held that merely because a preliminary enquiry was held against a temporary <ORG>. servant, would not be a ground to hold that an order, otherwise innocuous on the face of it, by which the services were terminated, was punitive in nature. The decision in <CITATION> .  = 1985 (2) SCR 1 = AIR 1985 SC 84 was held to be per incuriam as in that case, <NAME>'s case (supra) was not considered, but the <ORG> did observe that if on an overall assessment of the work and conduct of the employee the authority competent in that behalf to terminate the service, is satisfied that on account of the employee's general unsuitability and inefficiency or misconduct it would not be in the public interest to retain him in service, it may either terminate the services by an innocuous order or may proceed to take punitive action by holding a regular departmental enquiry. The <ORG>, however, emphasised that the termination has to be in accordance with the terms and conditions of service regulated by relevant rules. <CITATION> 1998 (8) SC 585 = , which related to a probationer, the whole legal position was reviewed by Brother M. <NAME>, J., in an illuminating and research- oriented judgment and after considering various decisions including the decision in <NAME> case (supra) and a still later decision in <CITATION>  = 1994 (3) Scale 12, so as to trace the development of law relating to this aspect of service jurisprudence, laid down that there has not been any conflict of opinion inter se various judgments including those laying down the "Motive" and "Foundation" theory. It was held that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. Benefit and protection of Article 311(2) of the Constitution is available not only to temporary servants but also to a probationer and the court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated. The whole case law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulam; right, the order is valid; left, the order is punitive. It was urged before this <ORG>, more than once including in <NAME> case (supra) that there was a conflict of decisions on the question of order being a simple termination order or a punitive order, but every time the <ORG> rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this <ORG> in various decisions to be applied to a different situation. But the concept of "motive" and "foundation" was always kept in view. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive". "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. Applying these principles to the facts of the present case, it will be noticed that the appellant, who was recruited as a Constable in the <ORG>, U.P., had successfully completed his training and had also completed two years of probationary period without any blemish. Even after the completion of the period of probation under Para 541 of <ORG> Regulations, he continued in service in that capacity. The incident in question, namely, the quarrel was between two other Constables in which the appellant, to begin with, was not involved. When the quarrel was joined by few more Constables on either side, then an enquiry was held to find out the involvement of the constables in that quarrel in which filthy language was also used. It was through this enquiry that appellant's involvement was found established. The termination was founded on the report of the preliminary enquiry as the employer had not held the preliminary enquiry to find out whether the appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years ago but was held to find out his involvement. In this situation, particularly when it is admitted by the respondent that the performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct. There is another aspect of the matter. Para 541 of <ORG> Regulations provides as under : "541. (1) Recruits will be on probation for a period of two years, except that -- (a) those recruited directly in <ORG> or <ORG> will be on probation for three years, and (b) those transferred to <ORG> will be governed by the directions contained in paragraph 84 of the Police Regulations. If during the period of probation their conduct and work have been satisfactory and they are approved by the Deputy Inspector General of Police at the end of the period of probation for service in the force the Superintendent of Police will confirm them in their appointment. (2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his services. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge. (3) Every order passed by a Superintendent under sub-paragraph (2) above shall, subject to the control of the Deputy Inspector General, be final." Where, therefore, the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purpose, then the termination has to be brought about in that manner. The probationer-constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the reply is found to be convincing, he may not be deprived of his services. If this procedure is followed and the services are terminated thereafter, it would not amount to a punitive action. The rule being mandatory in nature, compliance thereof would not alter the nature of the order passed against the probationer. This aspect was considered by this <ORG> in two decisions, namely, <CITATION> (1961) 1 SCR 606 (supra) and <CITATION> (1964) 2 SCR 135 (supra) in terms of Rule 55-B of the Civil Services (Classification, Control & Appeal) Rules, which, in all respects, is akin to Para 541 of <ORG> Regulations quoted above. Relevant portion of Rule 55-B which was extracted in the case of <CITATION> (supra) is quoted below : "Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment." Immediately after quoting the Rule, the <ORG> observed: "Notice to show cause whether the employment of the respondent should be terminated was, by Rule 55 B made obligatory." The <ORG>, after considering that the <ORG> had complied with the requirements of Rule 55-B came to the conclusion that the order of termination of services of the probationer was not punitive in nature. <CITATION> (supra), the <ORG>, while considering the provisions of Rule 55-B, observed as under : "Therefore in a case covered by r.55-B all that is required is that the defects noticed in the work which make a probationer unsuitable for retention in the service should be pointed out to him and he should be given an opportunity to show cause against the notice, enabling him to give an explanation as to the faults pointed out to him and show any reason why the proposal to terminate his services because of his unsuitability should not be given effect to. If such an opportunity is given to a probationer and his explanation in reply thereto is given due consideration, there is in our opinion sufficient compliance of r.55-B. Generally speaking the purpose of a notice under r.55-B is to ascertain, after considering the explanation which a probationer may give, whether he should be retained or not and in such a case it would be sufficient compliance with that rule if the grounds on which the probationer is considered unsuitable for retention are communicated to him and any explanation given by him with respect to those ground is duly considered before an order is passed." ( Emphasis supplied ) In two other cases, namely, <CITATION> (supra) and <NAME> vs. <ORG> of Punjab (supra), the question of termination of services of a probationer was considered and it was laid down that the form of the order was not conclusive and the court could go behind the order to find out the real foundation of that order. <CITATION> 1998 (8) SC 585, which has been decided by Brother <NAME>, J., was also a case where the services of a probationer were terminated. As we have already seen above, there has been total non-compliance with the provisions of Para 541 of <ORG> Regulations and services of the appellant were terminated without ever issuing him any notice intimating the grounds on which his services were proposed to be terminated nor was his explanation ever obtained. The services were terminated because he was found involved in a quarrel between two other Police Constables. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the High <ORG> is set aside and that of the U.P. Public Services <ORG> is restored, but without any order as to costs.

rights are dismissed. There shall be no order as to costs.