Rajinder Kaur Vs. Punjab State & ANR
[1986] INSC 165 (8 August 1986)
SEN, A.P. (J) SEN, A.P. (J) RAY, B.C. (J)
CITATION: 1986 AIR 1790 1986 SCR (3) 500 1986
SCC (4) 141 JT 1986 86 1986 SCALE (2)203
CITATOR INFO:
RF 1991 SC1310 (8)
ACT:
Punjab Police Rules, 1934, Vol. 7, Rule
12.21- Constitution of India, Article 311(2): Temporary constable- order of
discharge from service in innocuous terms-Based on allegation of
misconduct-Whether unconstitutional and liable to be quashed.
HEADNOTE:
The appellant, a temporary lady constable,
was discharged from service by an order under Rule 12.21 Volume 7 of the Punjab
Police Rules 1934 on the allegation that she was unlikely to prove an efficient
police officer. A representation made by her to the Deputy Inspector General of
Police against that order was rejected. A revision filed by the appellant
against the latter order was dismissed. A suit filed by her challenging the
order of discharge as bad, arbitrary and against the principles of law was
dismissed.
This order was confirmed by the District
Judge and the High Court in appeal.
In the appeal to this Court by special leave
it was contended for the appellant that the impugned order of discharge from
service was made not in accordance with the said Rule, in accordance with the
terms and conditions of the service, but was made by way of punishment on the
ground of her misconduct, as found on the basis of the investigation of certain
allegations behind her back, without giving her any opportunity of hearing in
the enquiry or to cross-examine the witnesses.
Allowing the appeal, the Court, ^
HELD: The impugned order of discharge, though
couched in innocuous terms and stated to be made in accordance with the
provisions of Rule 12.21, Vol.7 of the Punjab Police Rules, 1934, was really a
camouflage for an order of dismissal from service on the ground of misconduct
as found on an enquiry into the allegations behind her back. It was penal in
nature as it cast a stigma on the service career of the 501 appellant. This
order was made without serving the appellant any chargesheet without asking for
any explanation from her without giving any opportunity to show cause against
the purported order of dismissal from service and without giving any
opportunity to cross-examine the witnesses. It, therefore, contravenes Art.
311(2) of the Constitution and is liabie to be quashed and set aside. [503F-G;
504B; 506B- C] P.L. Dhingra v. Union of India, [1958] SCR p. 828 at 862, K.H.
Phadnis v. State of Maharashtra, [1971] SCR (Supp.)) p. 118, State of Bihar
& Ors. v. Shiva Bhikshuk Mishra, [1971] 2 SCR 191 at 196, Shamsher Singh
& Anr. v.
State of Punjab, [1975] 1 SCR p. 814 at 837
and Anoop Jaiswal v. Government of India & Anr., [1984] 2 SCR p. 453,
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
2327 of 1986.
From the Judgment and order dated 10.10.1984
of the Punjab and Haryana High Court in R.S.A. No. 2198 of 1984.
K. N. Rai for the Appellant.
R. S . Sodhi for the Respondents.
The Judgment of the Court was delivered by E
RAY, J. After hearing the learned counsel for both the parties and on
consideration of the question of law involved in this petition.
Special Leave is granted. Arguments heard.
The appellant petitioner was appointed as a
lady constable in Hoshiarpur District on 7.5.1979. After completion of training
she was posted in March, 1980 in the police lines, Hoshiarpur. The
Superintendent of Police, Hoshiarpur discharged the appellant from service by
an order dated 9.9. 1980 under Rule 12.21 volume 7 of the Punjab Police Rules,
1934. The said order is in the following terms:
"Lady Constable Rajinder Kaur No. 732 is
unlikely to prove an efficient police officer. She is, therefore, hereby
discharged from the Police Force Under P.P. 12.21 with effect from today (9.9.1980).
502 Issue orders in O.R. and all concerned to
notice and necessary action." This order was made, it has been stated in
the petition, without serving any charge-sheet on her and without asking her to
explain any charge. The order also has not recorded any reason for her
discharge from service.
Against this order the appellant made a
representation to the Deputy Inspector General of Police, Jullunder Range. The
said representation was rejected on 17.10.1980. The appellant filed a revision
against the order of the Deputy Inspector General of Police and the same was
also dismissed on 15.4.1981. The appellant thereafter filed a civil suit No.
327/ASSJ/82 in the Court of Additional Senior Sub-Judge, Hoshiarpur on
16.11.1981 challenging the order of discharge as bad, arbitrary and against the
principles of law. The said suit was dismissed by the Additional Senior
Sub-Judge, Hoshiarpur on 28.2.1983. Thereafter, the appellant Sled an appeal
before the District Judge, Hoshiarpur on 31.3.1983 and it was numbered as Civil
Appeal No. 45 of 1983. The said appeal was dismissed on 7.5. 1984 and the
judgment of the Trial Court was confirmed. A Regular Second Appeal No. 2198 of
1984 was filed before the High Court of Punjab and Haryana at Chandigarh.. The
said Second Appeal was dismissed on 10.10.1984. Hence the instant application
for grant of special leave to appeal under Article 136 of the Constitution has
been filed in this Honourable Court by the appellant.
The main argument advanced on behalf of the
appellant is that the impugned order of discharge from service was made not in
accordance with Rule 12.21 of the Punjab Police Rules, 1934 in accordance with
the terms and conditions of the service but it was made by way of punishment.
An enquiry was made by Deputy Police Superintendent, Garhshankar as to the
character of the appellant into the allegation that she stayed at Mahalpur for
1 or 2 nights with one constable, Jaswant Singh and evidences were recorded
therein without giving the appellant any opportunity of hearing in the enquiry
and without giving her any opportunity to cross- examine the witnesses and the
impugned order was made after the completion of the investigation on the ground
of her misconduct which casted a stigma on her service career. The order in question
is, therefore, not an innocuous one though expressed in innocuous terms. It is
made by way of punishment, the ground being her misconduct as found on the
basis of the investigation of certain allegations behind her back.
It was urged on behalf of the respondents
that the order dis- 503 charging the appellant from service was not made by way
of punishment. The order was made in accordance with the terms of Rule 12.21 of
the said Rules which empowers the authorities to do away with the service of the
constable at any time within three years of her enrolment, if she is found
unlikely to prove an efficient police officer, by the Superintendent of Police
and no appeal has been provided for under the Rules against the said order of
discharge. It was, therefore, urged that the order being made in accordance
with the conditions of service of the appellant and so it is unchallengeable
before this Court by filing a special leave petition to appeal.
Admittedly, the appellant was appointed as a
lady constable on 7.5.1979 and she was posted in March, 1980 in the police
lines, Hoshiarpur after completion of her training. It has been stated in para
15 of the petition that on an allegation made by the department against the
appellant that she spent two nights with a constable an investigation was
caused to be made into the said allegation against her conduct and on the basis
of that investigation the impugned order of discharge was made by the
Superintendent of Police, Hoshiarpur. In para 15 of the counter affidavit sworn
on behalf of respondents it has been stated that the Superintendent of Police,
Hoshiarpur, got conducted a confidential enquiry through a Deputy
Superintendent of Police regarding the conduct of the appellant. On an overall
assessment of the work and conduct of the appellant, the Superintendent of
Police, Hoshiarpur came to the conclusion that she was not likely to become an
efficient Police officer and thus passed an order discharging her from service
in accordance with the conditions of the service. These averments made in para
15 of the counter-affidavit have been verified to be true and correct to the
knowledge of the deponent based upon the information derived from the record of
the case. Thus, it is clear from these averments that the impugned order of
discharge though stated to be made in accordance with the provisions of Rule
12.21 of the Punjab Police Rules, 1934, is really made on the basis of the
misconduct as found on enquiry into the allegation behind her back by the
Deputy Superintendent of Police, Garhshankar. It is not disputed that the
enquiry was made without serving her the charge- sheet and without giving her
any opportunity to explain the charges and the allegations levelled against
her. The enquiry was conducted behind her back and on the basis of the result
of the investigation she was discharged from service. Therefore in these
circumstances, it does not lie in the mouth of the respondents to submit before
this Court that the order is an innocuous one and it is an order made simply in
accordance with the conditions of her 504 service under Rule 12.21 of the said
Rules. On the other hand, in the background of these facts and circumstances it
is crystal clear that the impugned order of discharge from service of the
appellant was made on the ground of her misconduct and it is penal in nature as
it casts a stigma on the service career of the appellant.
The next question arises is whether the
appellant who is yet to be confirmed in the service and has no right to the
post in question, the impugned order can be assailed as violative of the
protection given by Article 311(2) of the Constitution. This point has been
well-settled by several decisions of this Court.
This Court has stated in no uncertain terms
in the case of P. L. Dhingra v. Union of India, [1958] SCR p. 828 at 862 as
follows:
"But even if the Government has, by
contract or under the rules, the right to terminate the employment without
going through the procedure prescribed for inflicting the punishment of
dismissal or removal or reduction in rank, the Government may, nevertheless,
choose to punish the servant and if the termination of service is sought to be
founded on misconduct, negligence, inefficiency or other disqualification, then
it is a punishment and the requirements of Article 311 must be complied
with." This decision has been relied upon by this Court in the case of
K.H. Phadnis v. State of Maharashtra, [1971] SCR (Supp.) p. 118 where it has
been held that even in the case of reversion of an employee who has been repatriated
from the temporary post of Controller of Food Grains Department to his parent
department of Excise and Prohibition, to which he had a lien might be sent back
to the substantive post in ordinary routine administration or because of
exigencies of service. Such a person may have been drawing a salary more than
that of his substantive post but when he is reverted to the parent department
the loss of salary cannot be said to have any penal consequences. The matter
has to be viewed as one of substance and all relevant factors have to be
considered in ascertaining whether the order is a genuine one of accidence of
service in which a person sent from the substantive post to a temporary post
has to go back to the parent post without any aspersion against his character
or integrity, or whether the order amounts to a reduction in rank by way of
punishment.
505 lt has been further observed by this
Court in the case of State of Bihar & Ors. v. Shiva Bhikshuk Mishra, [1971]
2 S.C.R. 191 at 196.
"The form of the order is not conclusive
of its true nature and it might merely be a cloak and camouflage for an order
founded on misconduct. It may be that an order which is innocuous on the face
and does not contain any imputation of misconduct is a circumstance or a piece
of evidence for finding whether it was made by way of punishment or
administrative routine. But the entirety of circumstances preceding or
attendant on the impugned order must be examined and the overriding test will
always be whether the misconduct is a mere motive or is the very foundation of
the order." In the case of Shamsher Singh & Anr. v. State of Punjab,
[1975] 1 S.C.R. p.814 at 837 it has been observed as under:
"No abstract proposition can be laid
down that where the services of a probationer are terminated without saying
anything more in the order of termination than that the services are terminated
it can never amount to a punishment in the facts and circumstances of the case.
If a probationer is discharged on the ground of misconduct, or inef- ficiency
or for similar reason without a proper enquiry and without his getting a
reasonable opportunity of showing cause against his discharge it may in a given
case amount to removal from service within the meaning of Article 31 l (2) f
the Constitution." lt has been observed by this Court in the case of Anoop
Jaiswal v. Government of India & Anr., [1984] 2 S.C.R. p.453 as under:
"Where the form of the order is merely a
camouflage for an order of dismissal for misconduct it is always open to the
Court before which the order is challenged to go behind the form and ascertain
the true character of the order. If the Court holds that the order though in
the form is merely a determination of employment is in reality a cloak for an
order of punishment, the Court would not be debarred, merely because of the
form of the order, in giving effect to the rights conferred by law upon the
employee." 506 On a conspectus of all these decisions mentioned
hereinbefore, the irresistible conclusion follows that the impugned order of
discharge though couched in innocuous terms, is merely a camouflage for an
order of dismissal from service on the ground of misconduct. This order has
been made without serving the appellant any charge-sheet, without asking for
any explanation from her and without giving any opportunity to show cause
against the purported order of dismissal from service and without giving any
opportunity to cross-examine the witnesses examined, that is, in other words
the order has been made in total contravention of the provisions of Article
311(2) of the constitution. The impugned order is, therefore, liable to be
quashed and set aside. A writ of certiorari be issued on the respondents to
quash and set aside the impugned order dated 9.9.1980 of her dismissal from
service. A writ in the nature of mandamus and appropriate directions be issued
to allow the appellant to be reinstated in the post from which she has been
discharged. The appeal is thus allowed with costs. The authorities concerned
will pay all her emoluments to which she is entitled to in accordance with the
extant rules as early as possible in any case not later than eight weeks from
the date of this judgment.
P.S.S. Appeal allowed.
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