Hardeep
Singh Vs. State of Haryana & Ors [1987] INSC 211 (13 August 1987)
SEN,
A.P. (J) SEN, A.P. (J) RAY, B.C. (J) CITATION: 1987 SCR (3)1138 1987 SCC Supl.
295 JT 1987 (3) 417 1987 SCALE (2)431
ACT:
Civil
Services: Punjab Police Rules 1934, Rules 12. 31 and 16. 24 (ix)(b)--Police
Constable on probation--Order of removal from service passed on account of
union activities--No charge sheet served--No enquiry held--Order, when can be
quashed.
Constitution
of India, 1950, Art. 311(2)--Whether a probationer is entitled to protection,
and if so, when.
HEADNOTE:
The
petitioner, a Constable in the Haryana Police Service, was removed from service
during the period of probation. However, he was not given any opportunity of
hearing against the purported order of dismissal from service. He challenged
the impugned order of removal on the ground that he was removed from service
because of his activities in the Haryana Police Association and it was in fact
a penal order and as such the same being made without complying with the
requirements of Article 311(2) as well as Rule 16.24(ix)(b) of the Punjab
Police Rules, 1934, it is wholly arbitrary, illegal and unwarranted.
It
was contended on behalf of the respondent that the impugned order is not an
order of dismissal from service and in fact this is an order of discharge made
under Rule 12.21 of the Rules since the appointing authority was of considered
opinion on the assessment of his conduct and performance that the petitioner
was unlikely to prove an efficient police officer.
Allowing
the writ petition to this Court,
HELD:
1. (i) The impugned order of removal/dismissal from service was in substance
and in effect an order made by way of punishment after considering the service
conduct of the petitioner. It is therefore quashed and it is directed that he
be reinstated in service with 50 per cent back wages from the date of
termination of his service till the date of his reinstatement. He would,
however, be entitled to his full salary and other allowances admissible W.E.F. the
date of his reinstatement. There would however be no break in continuity of
service for purposes of seniority and pension benefits. [1144D; 1145A-C] 1139
(ii) There is no doubt that the impugned order casts a stigma on the service
career of the petitioner and the order being made by way of punishment, the
petitioner is entitled to the protection afforded by the provisions of Article
311(2) of the Constitution as well as by the provisions of Rule 16.24(ix)(b) of
the Punjab Police Rules 1934. [1144E] (iii) It cannot be said that the impugned
order is an order simpliciter of removal from service of a probationer in
accordance with the terms and conditions of service. The impugned order
undoubtedly tent amounts to the dismissal from the service for reasons of
misconduct of the petitioner in discharge of the official duties as police
constable. [1144G-H]
2.
A probationer has no right to the post and if he is found by the concerned
authorities to be unsuitable for the post during the probation period his
service may be done away with. But nonetheless such a probationer has a right
to have an opportunity of hearing against the order of dismiss- al/removal from
the service if the same is made in effect by way of punishment or the same
casts a stigma on the service career of the petitioner. [1141G-H; 1142A] In the
instant case, the petitioner has not been served with any charges of misconduct
in discharge of his duties as a police constable nor has he ever been asked to
show cause against the said charges. The order of removal from service was made
because of his union activities namely participating in the call for expressing
the protest of the Association for improvement in service conditions by
abstaining from taking meals in the Mess on 15th August, 1982 although the
petitioner like other members of the association per- formed his duties on that
day and did not abstain from duty.
[1144E-G]
P.L. Dhingra v. Union of India, AIR 1958 (SC) 36; Samsher Singh v. State of
Punjab and ANR., AIR 1974 (SC) 2192;
Anoop
Jaiswal v. Government of India & ANR., AIR 1964 (SC) 636 and Alit Singh
& Ors. v. State of Haryana & Ors., W.P. No. 9345-94 98/1983, followed.
ORIGINAL
JURISDICTION: Writ Petition (Civil) No. 1615 of 1986. (Under Article 32 of the
Constitution of India). R.P. Gupta for the Petitioner. C.V. Subba Rao for the
Respondents.
1140
The Order of the Court was delivered by B.C. RAY, J. The petitioner who was
appointed as a constable in the Haryana Police Force on November 7, 1979 has
challenged in this writ petition the order dated August 24, 1982 issued by the
Commandant, 2nd Bn. Haryana Armed Police, Madhuban on the ground that the
impugned order of removal from service was in effect a penal order and as such the
same being made without complying with the requirements of Article 311(2) as
well as the Rule 16.24(ix)(b) of the Punjab Police Rules, 1934 is wholly
arbitrary, illegal and unwarranted and so the impugned order is liable to be
quashed and set aside and the petitioner to be reinstated in service. The facts
of the case in a nutshell are that the petitioner was enrolled as a constable
in the Haryana Police Service in November, 1979 and he had been discharging his
duties attached to his office duly and properly. The petitioner was a member of
an unregistered Haryana Police Association. The said association had been
convassing for improvement in the Service conditions of the police personnel
serving with the Haryana Police and on several occasions made representations
for improvement of the service conditions of the members of the police service.
As a part of its campaign for improvement in service conditions, the
association in the month of July gave a call to all its members to participate
in "a non taking of food campaign" which was to take place on 15th
August, 1982. On that day the petitioner and other police personnel numbering
about 16,000 consisting of constables and head-constables of Haryana Police
Force attended to their duties but they did not take their food in the Mess.
The protest undertaken by the Haryana police constables/ head-constables was a
symbolic and peaceful one and no incident whatsoever had occurred on that day.
The respondents, however issued order of dismissal/removal against 425 policemen
under rule 12.21 of the said rules without serving on them any charge-sheet and
without giving them any opportunity of hearing against the charges, prior to
the passing of the said order of dismissal/removal from service. About 154 of
such policemen challenged the order of their dismissal/removal from service in
writ petition Nos.
9345
to 9498 of 1983 before this Court and the Constitution Bench of this Court
after hearing set aside the said order of dismissal from service and directed
reinstatement in service without any break in their service.
The
petitioner because of his activities in the Association was served with the
impugned order of removal from service without being given any opportunity of
hearing and without being asked to show cause against the purported order of
dismissal from service. The 1141 petitioner has challenged the validity of this
impugned order in this writ petition. A return has been filed on behalf of the
respondents sworn by one Raj K. Vashishta, IPS, Commandant 2nd Bn. Haryana
Armed Police, Madhuban District, Karnal wherein in paragraph. 2 it has been
stated that the impugned order is not an order of dismissal from service and in
fact this is an order of discharge made under rule 12.21 of the Punjab Police
Rules, 1934 as applicable in Haryana. It has been further stated in paragraph 3
of the said affidavit that the petitioner deliberately suppressed the facts
that:
(i)
That for his absence from duty, without leave for more than 24 hours with
effect from 25.10.80 he had been awarded 5 days P.D. (ii) Again he had been
warned for absence without leave for five hours on 21.4.81.
(iii)
Notwithstanding the warnings and punishments awarded for absence from duty in
1980, and again in 1981, the petitioner did not show any improvements in his
performance and conduct and again absented from duty on 15th August, 1982.
It
has also been stated that a recruit constable who within a span of three years
of his enrolment repeatedly absents from duty and does not improve himself in
spite of warnings, is not likely to prove an efficient police officer.
It
has further been averred in the said affidavit that the petitioner was
discharged because the appointing authority (Superintendent of Police) was of
considered opinion on due assessment of his conduct and performance that he was
unlikely to prove an efficient police officer. These averments have been
verified as correct according to the information derived from the official
records and believed by the deponent to be true.
There
is no dispute that the petitioner was enrolled as a constable with effect from
November 7, 1979 and he was on probation which is for a period of three years.
It is also well settled that a probationer has no right to the post and if he
is found by the concerned authorities to be unsuitable for the post during the
probation period his service may be done away with. But nonetheless such a
probationer has a right to have an opportunity of hearing against the order of
dismissal removal from service if the same is made in effect by way of 1142
punishment or the same casts a stigma on the service career of the petitioner.
In other words if the order of dismissal/removal from the service is not one
simple on the ground that his service is no longer required but in substance
and in effect the same is made by way of punishment, the probationer like the
petitioner who has no right to the post is to be given an opportunity of
hearing. If such an order of dismissal/removal from service is made without
following the procedure envisaged in Article 311(2) of the Constitution of
India as well as rule 16.24(ix)(b) of the Punjab Police Rules, 1934 the same
will be illegal and bad and liable to be quashed. This position has been well
settled by this Court in the case of P.L. Dhingra v. Union of India, AIR 1958
(SC) 36 wherein it has been observed as under:- " ....... Passing on to
Article 311 we find that it gives a two-fold protection to persons who come
within the article, namely, (1) against dismissal or removal by an authority
subordinate to that by which they were appointed and (2) against dismissal or
removal or reduction in rank without giving them a reasonable opportunity of
showing cause against the action proposed to be taken in regard to them.
Incidentally it will be noted that the word "removed" has been added
after the word "dismissed" in both Clauses (1) and (2) of Art. 311.
Upon Art. 311 two questions arise, namely, (a) who are entitled to the
protection and (b) what are the ambit and scope of the protection?" "
........ Shortly put, the principle is that when a servant has right to a post
or to a rank either under the terms of the contract of employment, express or
implied, or under the rules governing the conditions of his service, the
termination of the service of such a servant or his reduction to a lower post
is by itself and prima facie a punishment, for it operates as a forfeiture of
his right to hold that post or that rank and to get the emoluments and other
benefits attached thereto. But if the servant has no right to the post, as
where he is appointed to a post, permanent or temporary either on probation or
on an officiating basis and whose temporary service has not ripened into a
quasi-permanent service as defined in the Temporary Service Rules, the
termination of his employment does not deprive him of any right and cannot,
therefore, by itself be a punishment. One test for determining whether the
termination of the service of a government servant is by way of punishment is
to ascertain 1143 whether the servant, but for such termination, had the right
to hold the post. If he had a right to-the' post as in the three cases
hereinbefore mentioned, the termination of his service will by itself be a
punishment and he will be entitled to the protection of Art.
311."
" ........ 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, never the less, 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 Art. 311 must be complied with." In the case of Samsher
Singh v. State of Punjab and ANR., AIR 1974 (SC) 2 192 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 mis-conduct or inefficiency or for similar reason without a proper
enquiry and without his getting a reasonable opportunity of showing cause
against his discharge it may in a given case amount to removal from service
within the meaning of Article 311(2) of the Constitution." It has been
further observed that the form of the order may be innocuous but if the order
is really by way of punishment then the protection under Article 311(2) will
come into play and the probationer will be entitled to have an opportunity of
hearing before the impugned order of dismiss- al/removal from service is made.
The substance of the order and not the form could be decisive.
In
a later decision of this Court i.e. Anoop Jaiswal v. Government of India and
ANR., AIR 1984 (SC) 636 following the aforesaid two decisions this Court has
observed that:
1144
"The form of the order is not decisive as to whether the order is by way
of punishment and that even an innocuously worded order terminating the service
may in the facts and circumstances of the case establish that an enquiry into
allegations of serious and grave character of misconduct involving stigma has
been made in infraction of the provision of Art. 311(2). 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 whom 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." In the instant case it is clear and evident from
the averments made in paragraph 3, sub-para (i) to (iii) and paragraph (v) of
the counter-affidavit that the impugned order of removal/dismissal from service
was in substance and in effect an order made by way of punishment after
considering the service conduct of the petitioner. There is no doubt that the
impugned order casts a stigma on the service career of the petitioner and the
order being made by way of punishment, the petitioner is entitled to the
protection afforded by the provisions of Article 311(2) of the Constitution as
well as by the provisions of Rule 16.24(IX)(b) of the Punjab Police Rules,
1934. The petitioner has not been served with any charges of misconduct in
discharge of his duties as a police constable nor has he ever been asked to
show cause against the said charges. The order of removal from service was made
because of his union activities namely participating in the call for expressing
the protest of the association for improvement in service conditions by
abstaining from taking meals in the Mess on 15th August, 1982 although the
petitioner like other members of the association per- formed his duties on that
day and did not abstain from duty.
It
cannot be said in the facts and circumstances of the case that the impugned
order is an order simplistic of removal from service of a probationer in
accordance with the terms and conditions of the service. The impugned order
undoubtedly, Tent amounts to dismissal from service by reason of misconduct of
the petitioner in discharge of the official duties as police constable. This
matter is fully covered by the decision dated October 17, 1984 of the
Constitution Bench in Ajit Singh & Ors. v. State of Haryana & Ors.,
(W.P. Nos. 9345-9498/1983) and we are bound to follow the same.
1145
In the premises aforesaid the writ petition succeeds and is allowed, the
impugned order of discharge of the petitioner from Haryana Police Force under
rule 12.21 of the Punjab Police Rules, 1934 passed by the Commandant, 2nd Bn.,
Haryana Armed Police is quashed and it is directed that he be reinstated in
service with 50% back wages from the date of termination of his service till
the date of his reinstatement. He would, however, be entitled to his full
salary and other allowances admissible with effect from the date of his
reinstatement. It is further directed that there would be no break in
continuity of service for purposes of seniority and pensioner benefits. No
costs.
M.L.A.
Petition allowed.
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