State
of Punjab & Ors Vs. Sukhwinder Singh
[2005] Insc 351 (14
July 2005)
Cji
R.C. Lahoti, G.P. Mathur & P.K. Balasubramanyan G.P. Mathur, J.
1.
This appeal, by special leave, has been preferred by the State of Punjab and others challenging the judgment
and decree dated 30.1.2001 of the High Court of Punjab and Haryana by which the
Second Appeal preferred by the appellants was dismissed and the decree passed
by the courts below decreeing the respondent's suit was affirmed.
2. The
respondent Sukhwinder Singh joined on 4.8.1989 as a police constable and was
allotted number 644 in District Amritsar in the State of Punjab. He was sent for training at Police
Recruit Training College Jahan Khelan. He absented from duty w.e.f. 22.2.1990
without making any application for grant of leave or seeking permission for his
absence.
The
Senior Superintendent of Police, Amritsar, passed the following order on 16.3.1990: - "Constable Sukhwinder
Singh No. 644/ASR of this District is discharged from service w.e.f. 16.3.1990 under
Punjab Police Rules 12.21 as he is not likely to become an efficient police
officer." The respondent Sukhwinder Singh filed a civil suit in the Court
of Sub- Judge, Amritsar, seeking a declaration that the order dated 16.3.1990,
passed by the Senior Superintendent of Police, Amritsar, discharging him from
service, was illegal and inoperative in law as it was passed by way of
punishment, without holding any enquiry and without giving him any opportunity
of hearing. The appellants herein contested the suit on various grounds and the
main plea taken therein was that the respondent had to put in less than three
years of service and was a probationer on the date of passing of the order
dated 16.3.1990 and, therefore, he was rightly discharged under Rule 12.21 of
the Punjab Police Rules (hereinafter referred to as the 'Rules') by the Senior
Superintendent of Police. The Senior Superintendent of Police was of the
opinion that the respondent was not likely to become an efficient police
officer and, therefore, he exercised his powers under Rule 12.21. It was
further pleaded that the respondent being a probationer had no right to the
post.
The
order of discharge did not cast any stigma and did not affect him with any evil
consequences.
3. The
learned sub-Judge, Amritsar, after appreciating the evidence on record, held
that the order dated 16.3.1990 passed by the Senior Superintendent of Police, Amritsar,
was illegal, null and void and accordingly passed a decree in favour of the
respondent that he would continue in service and was entitled to his pay,
powers, privileges and other service benefits of the post of a constable. The
appeal preferred by the appellants was dismissed by the Additional District
Judge on 28.5.1994 and the decree of the trial court was affirmed. The
appellants then preferred a Second Appeal in the High Court, which was also
dismissed on the finding that the respondent was thrown out of job on the
ground of absence from duty. Absence from duty is a misconduct and it was a
punishment which was imposed upon him without holding a formal inquiry as
envisaged under Rule 16.24 (ix) of the Rules.
Consequently
the order of discharge dated 16.3.1990 was wholly illegal and contrary to law.
4.
Learned counsel for the appellants has submitted that the respondent had been
appointed on 4.8.1989 and he had not completed three years of service and,
therefore, he was only a probationer in terms of the Rules. The impugned order
is neither stigmatic nor it affects him with any evil consequences, as it only
uses the expression that the respondent is not likely to become an efficient
police officer. The Rules confer power upon the appointing authority to
discharge a probationer without holding any inquiry if he forms an opinion that
the constable is not likely to become an efficient police officer. The learned
counsel further submitted that no disciplinary action had been taken against
the respondent and as such there was no necessity of holding any formal inquiry
wherein the delinquent employee is afforded an opportunity to defend himself.
5. The
learned counsel for the respondent has, on the other hand, submitted that the
impugned order of discharge dated 16.3.1990 though apparently looks to be
innocuous but had in fact been passed on the ground of misconduct, viz., the
absence from duty w.e.f. 22.2.1990 and, therefore, it is founded upon an act of
misconduct. He has further submitted that the aforesaid misconduct being the
foundation of the order, it was obligatory upon the appointing authority to
have held a formal departmental inquiry wherein the respondent would have got
an opportunity to defend himself
6.
Rule 12.21 of the Rules reads as under: - "A constable who is found
unlikely to prove an efficient police officer may be discharged by the
Superintendent at any time within three years of enrolment.
There
shall be no appeal against an order of discharge under this rule."
7. A
Full Bench of Punjab and Haryana High Court in Sher
Singh v. State of Haryana and others 1994 (1) PLR 456, has examined the content
and scope of Rules 12.21, 19.3 and 19.5 of the Rules in considerable detail. It
has been held in that case that the effect of the Rules is that for a period of
three years a constable is under surveillance. He is being watched and is kept
in close supervision. He has no right to the post and his services are
terminable at any time during this period of three years.
He can
secure his position in the service only if he convinces the Superintendent of
Police that he is likely to prove an efficient police officer. The Full Bench
has further held that the Rules contained the necessary guidelines for the
Superintendent of Police, on the basis of which, he has to form an opinion
regarding a constable. If on a consideration of the relevant material, the
Superintendent of Police finds that a particular constable is not active,
disciplined, self-reliant, punctual, sober, courteous or straight-forward or
that he does not possess the knowledge or the technical details of the work
required of him, he can reasonably form an opinion that he is not likely to
prove an efficient police officer. In such a situation the Superintendent of
Police can invoke his power under Rule 12.21 and can discharge the constable
from the force. We are in agreement with the view taken by the Full Bench of
the High Court. In fact, this view is in consonance with the decision of this
Court rendered in The Superintendent of Police, Ludhiana and another vs. Dwarka
Das 1979 (1) SLR 299, where it was observed that if Rules 12.21(3) and 12.21
are read together, it will appear that the maximum period of probation in the
case of a police officer of the rank of constable is three years, for the
Superintendent of Police concerned has the power to discharge him within that
period. It was also held that the power of discharge cannot be exercised under
Rule 12.21 after the expiry of the period of three years and consequentially if
it is proposed to deal with an inefficient police officer after the expiry of
that period, it is necessary to do so in accordance with Chapter XVI of the
Rules, which makes provisions for the imposition of various punishments
including dismissal from the police force. No simple order of discharge under
Rule 12.21 can be passed after the expiry of the period of three years for that
will attract Article 311 of the Constitution.
8.
Termination of service of a probationer during or at the end of period of
probation will not ordinarily and by itself be a punishment because the servant
so appointed has no right to continue to hold such a post any more than a
servant employed on probation by a private employer is entitled to. The period
of probation, therefore, furnishes a valuable opportunity to the master to
closely observe the work of the probationer and by the time the period of
probation expires to make up his mind whether to retain the servant by
absorbing him in regular service or dispense with his service. Period of
probation may vary from post to post or master to master and it is not
obligatory on the master to prescribe a period of probation. It is always open
to the employer to employ a person without putting him on probation. Power to
put the employee on probation for watching his performance and the period
during which the performance is to be observed is the prerogative of the employer.
(See Ajit Singh and others etc. vs. State of Punjab and another AIR 1983 SC
494)
9. The
learned counsel for the respondent has submitted that the court should unveil
the cloak and go behind the order dated 16.3.1990, which had in fact been
passed on the ground of continued absence from duty of the respondent w.e.f.
22.2.1990 and as the said order was founded upon an act of misconduct, the
order of discharge was in fact an order of dismissal by way of punishment and
since no formal inquiry had been held and the respondent had not been given an
opportunity of defending himself, the impugned order is wholly illegal and is
liable to be struck down. In support of his submission learned counsel has
placed reliance on Hardeep Singh vs. State of Haryana and others 1987 (Supp.)
SCC 295. In this case the appellant Hardeep Singh had joined the police service
in Haryana in 1979 and became a member of an unregistered Haryana Police
Association, which had been canvassing for improvement in the service
conditions of the police personnel serving with the Haryana Police and on
several occasions made representations for improvement of service conditions.
As part of its campaign the Association gave a call in the month of July to all
its members to participate in "a non-taking of food campaign", which
took place on 15.8.1982. On that day the appellant and 16,000 other Constables
and Head Constables attended to their duties but they did not take their food
in the mess. The State Government issued order of dismissal/removal against 425
policemen under Rule 12.21 of the Rules without serving any charge-sheet. The
writ petition filed by 154 such policemen was allowed by this Court. The
appellant filed a writ petition in the High Court which was dismissed.
On
thorough examination of the written statement filed by the State of Haryana and
the facts of the case this Court came to a finding that the order of discharge
was passed by way of punishment on account of his union activities, specially
those 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 15.8.2002, and that it was not a simple order of discharge. The Court
specifically held that on the facts and circumstances of the case it could not
be said that the order of discharge was an order simpliciter of removal from
service of a probationer in accordance with the terms and conditions of the
service, as it tantamount to dismissal from service by reason of misconduct. In
our opinion, this authority can be of no assistance to the respondent in view
of the conclusion drawn by this Court that the order had been passed on account
of the union activities of the employee and his participation in the call for
expressing the protest.
10.
The other case relied upon by the learned counsel for the respondent is State
of Uttar Pradesh and another vs. Kaushal Kishore Shukla
(1991) 1 SCC 691. In this case the employee Kaushal Kishore Shukla was
appointed on ad hoc basis for fixed period on 18.2.1977 as Assistant Auditor,
which was extended on several occasions and the last extension was granted on
21.1.1980 which was to expire on 28.2.1981.
His
services were terminated on 23.9.1980. The termination order was challenged on
the ground that certain allegations of misconduct had been made against him
regarding which an ex parte inquiry was held wherein he was not given any
opportunity of hearing. These allegations were also referred to in the counter
affidavit, which was filed on behalf of the State before the High Court. It was
submitted that the order of termination of service was founded on the
allegations of misconduct and the ex parte inquiry report. The High Court
accepted the plea of the employee and quashed the termination order. The appeal
filed by the State was allowed by this Court and the order of the High Court
was set aside with the following observations : - "The respondent being a
temporary government servant had no right to hold the post, and the competent
authority terminated his services by an innocuous order of termination without
casting any stigma on him. The termination order does not indict the respondent
for any misconduct. The inquiry which was held against the respondent was
preliminary in nature to ascertain the respondent's suitability and continuance
in service. There was no element of punitive proceedings as no charges had been
framed, no inquiry officer was appointed, no findings were recorded, instead a
preliminary inquiry was held and on the report of the preliminary inquiry the
competent authority terminated the respondent's services by an innocuous order
in accordance with the terms and conditions of his service. Mere fact that
prior to the issue of order of termination, an inquiry against the respondent
in regard to the allegations of unauthorized audit of Boys Fund was held, does
not change the nature of the order of termination into that of punishment as
after the preliminary inquiry the competent authority took no steps to punish
the respondent, instead it exercised its power to terminate the respondent's
services in accordance with the contract of service and the Rules. The
allegations made against the respondent contained in the counter-affidavit by
way of defence filed on behalf of the appellants also do not change the nature
and character of the order of termination."
11. In
S.P. Vasudeva vs. State of Haryana and others AIR 1975 SC 2292, it was held
that where an order of reversion of a person who had no right to the post, does
not show ex facie that he was being reverted as a measure of punishment or does
not cast any stigma on him, the courts will not normally go behind that order
to see if there were any motivating factors behind that order. In Bishan Lal
Gupta vs. State of Haryana and others AIR 1978 SC 363, it was held where the
intention behind an inquiry against a probationer was not to hold a full
departmental trial to punish but a summary inquiry to determine only
suitability to continue in service of the probationer and the probationer was
given ample opportunity to answer in writing whatever was alleged against him
in show cause notices, the innocuous order of termination following such
summary inquiry could not be said to be an order of punishment which entitled
him to a full-fledged inquiry contemplated by Article 311 of the Constitution.
In Oil and Natural Gas Commission vs. Dr.
Md. S. Iskander Ali AIR 1980 SC 1242,
it was held as under: - "Where the short history of the service of the
probationer appointed in a temporary post clearly showed that his work had
never been satisfactory and he was not found suitable for being retained in
service and that was why even though some sort of an enquiry was started, it
was not proceeded with and no punishment was inflicted on him and in these
circumstances, if the appointing authority considered it expedient to terminate
the services of the probationer it could not be said that the order of
termination attracted the provisions of Article 311, when the appointing
authority had the right to terminate the service without assigning any
reasons." These are all decisions by Benches of three learned Judges.
12.
The same question was considered in considerable detail in State of Maharashtra
vs. Veerappa R. Saboji AIR 1980 SC 42, and it was observed as under: -
"Ordinarily and generally the rule laid down in most of the cases by this
Court is that you have to look to the order on the face of it and find whether
it casts any stigma on the Government servant. In such a case there is no
presumption that the order is arbitrary or mala fide unless a very strong case
is made out and proved by the Government servant who challenges such an
order." In Governing Council of Kidwai Memorial Institute of Oncology,
Bangalore vs. Dr. Pandurang Godwalkar and another, AIR 1993 SC 392, the same
principle was reiterated and it was held that where the service of an employee
is terminated during the period of probation or while his appointment is on
temporary basis, by an order of termination simpliciter after some preliminary
enquiry it cannot be held that as some enquiry had been made against him before
issuance of order of termination it really amounted to his removal from service
on a charge, as such penal in nature.
13. In
Ravindra Kumar Misra vs. U.P. State Handloom Corporation Ltd and another AIR
1987 SC 2408, the appellant had been appointed on 30.10.1976 and had got two
promotions while still working in temporary status and by 1982 he had been
working as Deputy Production Manager.
On
22.11.1982 he was placed under suspension and the suspension order recited that
as a result of preliminary inquiries made by the Central Manager it had come to
notice that the appellant was responsible for misconduct, dereliction of duty,
mismanagement and showing fictitious production of terrycot cloth. The
suspension order was revoked on 1.2.1983 and thereafter on 10.2.1983 a simple
order terminating his services was passed reciting that his services were no
more required and his service would be deemed to be terminated from the date of
receipt of the notice. It was further mentioned therein that he would be
entitled to receive one month's salary in lieu of notice period. The
termination order was challenged by the appellant on the ground that the same
was punitive in nature, which was also demonstrated from the fact that shortly
before the order of termination a suspension order had been passed wherein a
specific charge of misconduct against him was mentioned.
After
referring to several earlier decisions this Court repelled the challenge made
by the employee by observing as under in paragraph 6 of the Report: -
"................In several authoritative pronouncements of this Court,
the concept of 'motive' and 'foundation' has been brought in for finding out
the effect of the order of termination. If the delinquency of the officer in
temporary service is taken as the operating motive in terminating the service,
the order is not considered as punitive while if the order of termination is
founded upon it, the termination is considered to be a punitive action. This is
so on account of the fact that it is necessary for every employer to assess the
service of the temporary incumbent in order to find out as to whether he should
be confirmed in his appointment or his services should be terminated. It may
also be necessary to find out whether the officer should be tried for some more
time on temporary basis. Since both in regard to a temporary employee or an
officiating employee in a higher post such an assessment would be necessary,
merely because the appropriate authority proceeds to make an assessment and
leaves a record of its views, the same would not be available to be utilized to
make the order of termination following such assessment, punitive in
character." 14. In Krishnadevaraya Education Trust and another vs. L.A. Balakrishna
(2001) 9 SCC 319, it was held that a probationer is on test and if his services
are found not be satisfactory, the employer has, in terms of the letter of
appointment, the right to terminate the services.
The
mere fact that in response to the challenge the employer states that the
services were not satisfactory, would not ipso facto mean that the services of
the probationer were terminated by way of punishment.
15. Pavanendra
Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and another (2002) 1
SCC 520, is a recent decision of this Court where, after referring to large
number of earlier decisions, the law on the point has been very clearly
elucidated in the following manner :- "One of the judicially evolved tests
to determine whether in substance an order of termination is punitive is to see
whether prior to the termination there was
(a) a
full-scale formal enquiry
(b) into
allegations involving moral turpitude or misconduct which
(c) culminated
in a finding of guilt. If all three factors are present the termination has
been held to be punitive irrespective of the form of the termination order.
Conversely
if any one of the three factors is missing the termination has been upheld.
..........................................................................................
Generally
speaking when a probationer's appointment is terminated it means that the
probationer is unfit for the job, whether by reason of misconduct or
ineptitude, whatever the language used in the termination order may be.
Although
strictly speaking, the stigma is implicit in the termination, a simple
termination is not stigmatic. A termination order which explicitly states what
is implicit in every order of termination of a probationer's appointment, is
also not stigmatic. In order to amount to a stigma, the order must be in a
language which imputes something over and above mere unsuitability for the
job."
16.
State of Punjab and others vs. Balbir Singh (2004) 11 SCC 743, is a direct case
on Rule 12.21 of the Rules. Here also after considering large number of earlier
decisions the Court laid down the following principle: - "The order of
discharge simpliciter, prima facie, is not punitive, it being in terms of
Punjab Police Rule 12.21 but the question still is whether the incident which
led to the passing of that order was motive or inducing factor or was the
foundation of order of discharge.
In
order to determine whether the misconduct is motive or foundation of order of
termination, the test to be applied is to ask the question as to what was the
"object of the enquiry". If an enquiry or an assessment is done with
the object of finding out any misconduct on the part of the employee and for
that reason his services are terminated, then it would be punitive in nature.
On the other hand, if such an enquiry or an assessment is aimed at determining
the suitability of an employee for a particular job, such termination would be
termination simpliciter and not punitive in nature. The other test to determine
whether, in substance, the order of discharge is punitive in nature is to
ascertain the "nature of enquiry" i.e. whether the termination is
preceded by a full-scale formal enquiry into allegations involving misconduct
on the part of the respondent, which culminated in the finding of guilt, and
the "purpose of the enquiry" i.e. whether the purpose of the enquiry
is to find out any misconduct on the part of the employee or it is aimed at
finding out as to the respondent being unlikely to prove as an efficient police
officer."
17.
The learned counsel for the respondent has also placed reliance on Smt. Rajinder
Kaur vs. Stat of Punjab and another (1986) 4 SCC 141, which is a decision by a
Bench of two learned Judges. In this case the appellant was appointed as a lady
constable on 7.5.1979 and after completion of training she was posted in the
police lines in March, 1980.
The
Superintendent of Police, Hoshiarpur, discharged the appellant by order dated
9.9.1980 under Rule 12.21 of the Rules. The order of discharge read as under: -
"Lady Constable Rajinder Kaur No. 732 is unlikely to prove an efficient
police officer. She is, therefore, hereby discharged from the Police Force
under Punjab Police Rules 12.21 with effect from today (September 9, 1980).
Issue
order in O.R. and all concerned to notice and necessary action." The main
contention on behalf of the appellant was that an inquiry was made by the
Deputy Superintendent of Police as to the character of the appellant into the
allegation that she stayed at Mahalpur for one or two nights with one constable
Jaswant Singh and evidence was recorded therein without giving the appellant
any opportunity of hearing or to cross-examine the witnesses and the impugned
order was made after completion of the investigation on the ground of her
misconduct which cast a stigma on her service career. This contention was
accepted and on the finding that though the order of discharge stated to be
made in accordance with the provisions of Rule 12.21 of the Rules, it was
really made on the basis of the misconduct as found on inquiry into the
allegation behind her back and further that though the order was couched in
innocuous terms, the order was merely camouflage for an order of dismissal from
service on the ground of misconduct, the impugned order of discharge was set
aside. With respects we are unable to agree with the view taken in this case.
As discussed earlier the consistent view of this Court is that even if some
kind of preliminary inquiry or fact finding inquiry is held in which the
employee is not afforded an opportunity of hearing, the order of discharge of a
probationer cannot be treated as an order of punishment as the appointing
authority has to necessarily ascertain all the relevant facts before taking a
decision whether the probationer should be retained in service or not. The
decision in Smt. Rajinder Kaur vs. State of Punjab is hereby over-ruled.
18. It
must be borne in mind that no employee whether a probationer or temporary will
be discharged or reverted, arbitrarily, without any rhyme or reason. Where a
superior officer, in order to satisfy himself whether the employee concerned
should be continued in service or not makes inquiries for this purpose, it
would be wrong to hold that the inquiry which was held, was really intended for
the purpose of imposing punishment. If in every case where some kind of fact
finding inquiry is made, wherein the employee is either given an opportunity to
explain or the inquiry is held behind his back, it is held that the order of
discharge or termination from service is punitive in nature, even a bona fide
attempt by the superior officer to decide whether the employee concerned should
be retained in service or not would run the risk of being dubbed as an order of
punishment. The decision to discharge a probationer during the period of
probation or the order to terminate the service of a temporary employee is
taken by the appointing authority or administrative heads of various
departments, who are not judicially trained people. The superior authorities of
the departments have to take work from an employee and they are the best people
to judge whether an employee should be continued in service and made a
permanent employee or not having regard to his performance, conduct and overall
suitability for the job. As mentioned earlier a probationer is on test and a
temporary employee has no right to the post. If mere holding of an inquiry to
ascertain the relevant facts for arriving at a decision on objective
considerations whether to continue the employee in service or to make him
permanent is treated as an inquiry "for the purpose of imposing
punishment" and an order of discharge or termination of service as a
result thereof "punitive in character", the fundamental difference
between a probationer or a temporary employee and a permanent employee would be
completely obliterated, which would be wholly wrong.
19. In
the present case neither any formal departmental inquiry nor any preliminary
fact finding inquiry had been held and a simple order of discharge had been passed.
The High Court has built an edifice on the basis of a statement made in the
written statement that the respondent was habitual absentee during his short
period of service and has concluded therefrom that it was his absence from duty
that weighed in the mind of Senior Superintendent of Police as absence from
duty is a misconduct. The High Court has further gone on to hold that there is
direct nexus between the order of discharge of the respondent from service and
his absence from duty and, therefore, the order discharging him from service
will be viewed as punitive in nature calling for a regular inquiry under Rule
16.24 of the Rules. We are of the opinion that the High Court has gone
completely wrong in drawing the inference that the order of discharge dated
16.3.1990 was, in fact, based upon the misconduct and was, therefore, punitive
in nature, which should have been preceded by a regular departmental inquiry.
There cannot be any doubt that the respondent was on probation having been
appointed about eight months back. As observed in Ajit Singh and others etc.
vs. State of Punjab and another (supra) the period of probation gives time and
opportunity to the employer to watch the work ability, efficiency, sincerity
and competence of the servant and if he is found not suitable for the post, the
master reserves a right to dispense with his service without anything more
during or at the end of the prescribed period, which is styled as period of
probation. The mere holding of preliminary inquiry where explanation is called
from an employee would not make an otherwise innocuous order of discharge or
termination of service punitive in nature. Therefore, the High Court was
clearly in error in holding that the respondent's absence from duty was the
foundation of the order, which necessitated an inquiry as envisaged under Rule
16.24(ix) of the Rules.
20.
For the reasons discussed above, we are of the opinion that the view taken by
the High Court and also by the lower Courts is wholly erroneous in law and must
be set aside. The appeal is accordingly allowed and the judgment and decree
passed by the High Court and also by the learned sub-Judge and learned
Additional District Judge are set aside. The suit filed by the
plaintiff-respondent is dismissed.
21. No
costs.
Back
