Jagdish Raj Sharma vs State Of Punjab & Ors.
- Court
- Punjab and Haryana High Court
1
0 (O&M)
RSA No.4171 of 201
IN T
THE HIGH COURT OF PUNJ
JAB AND HARYANA
ARH
AT CHANDIGA
118
RSA No.4
Date of D
J SHARMA
4171 of 2010 (O&M)
Decision: 08.09.2026
JAGDISH RAJ
Vs
STATE OF PU
......Appellant
UNJAB AND ORS.
....Respondent(s)
CORAM: HON
N'BLE MR. JUSTICE HARKES
SH MANUJA
Present: Mr
for
Mr
. Inderjit Sharma, Advocate
the appellant.
. Gunjan Mehta, Addl. A.G., Pun
njab.
HARKESH MA
[1]. By
ANUJA, J.
way of present appeal, challeng
e has been laid to the judgment a
and
decree dated 15
5/16.02.2010 passed by the Co
ourt of learned Additional Dist
trict
Judge, Jalandha
ar (hereinafter to be referred
as the “ First Appellate Cour
rt ” ),
whereby the app
peal filed at the instance of the
respondents-defendants against
the
judgment and d
decree dated 17.05.2008 passed
by the learned Civil Judge (Jun
nior
Division) Jaland
dhar, (hereinafter to be referred a
as the “ Trial Court ”) decreeing
the
suit for declarat
tion filed by the appellant-plaint
tiff, was allowed; thereby revers
sing
the judgment an
nd decree passed by the learned
Trial Court; consequently, the s
suit
for declaration p
preferred at the instance of the ap
ppellant-plaintiff was dismissed.
[2]. Bri
iefly stating, the appellant-pla
aintiff joined the Punjab Pol
lice
Department as a
a Probationary Inspector on 12.0
07.1991 against a temporary pos
st at
Faridkot, havin
ng been selected on the recom
mmendation of the Departmen
ntal
Selection Comm
mittee constituted by the State G
Government. Subsequently, FIR N
No.
71 dated 04.12.
.1991 was registered against th
he appellant-plaintiff and others
s at
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
2
0 (O&M)
RSA No.4171 of 201
Police Station K
Kotwali, Faridkot, alleging that
the appellant-plaintiff had secu
ured
his appointmen
nt as Inspector on the basis o
of a false and forged graduat
tion
certificate purpo
ortedly issued by Bundelkhand U
University, Jhansi. According to
the
appellant-plainti
iff, the concerned University
y, on verification, reported
the
certificate to be
genuine. The appellant-plaintiff
ff was discharged from service v
vide
order dated 04.0
01.1993 under Rule 12.8 of the P
Punjab Police Rules, 1934 Volu
ume
II (hereinafter
referred to as “the Rules” ) o
on the ground that he was fou
und
unsuitable for
service in the Police Departm
ment. The appellant-plaintiff w
was
thereafter tried i
in the criminal case arising out o
f the said FIR and was acquitted
d by
the learned Chie
ef Judicial Magistrate, Faridkot
t, vide judgment dated 19.05.19
997.
The appeal prefe
ferred by the State against the ac
cquittal was dismissed by this Co
ourt
on 03.02.1998 a
and no further appeal/SLP was fil
led by the State.
[2.1]. The
e appellant-plaintiff submitted
d several representations seek
king
reinstatement a
and restoration of his service
benefits but the same were
not
favourably cons
sidered. He also approached thi
s Court by way of a Writ Petit
tion
which was dispo
osed of on 08.11.2001 with a dire
ection to the competent authority
y to
consider and d
ecide his representation by pa
assing a speaking order. Pursu
uant
thereto, the Dir
rector General of Police, Punjab
b, rejected the appellant-plainti
iff's
representation v
vide order dated 29.01.2002, re
eiterating that he had produced
d a
false/forged grad
duation certificate at the time of
f recruitment and had consequen
ntly
been discharged
d under Rule 12.8 of the Rules.
The appellant-plaintiff challeng
ged
the said order be
efore this Court in Civil Writ Pet
tition No. 9686 of 2002. Vide or
rder
dated 03.07.200
02 passed by this Court, the ap
ppellant-plaintiff was permitted
d to
withdraw the wr
rit petition with liberty to appro
ach the Civil Court. Hence the s
suit
was filed.
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
3
0 (O&M)
RSA No.4171 of 201
[3]. Upo
on notice, respondents-defend
dants appeared and filed writ
tten
statement taking
g preliminary objections regardin
ng maintainability of the suit, lo
cus
standi to file th
he suit and the same was not w
within limitation. On merits, it w
was
submitted that
the graduation certificate of
f Bundelkhand University, Jha
ansi
produced by the
e appellant-plaintiff in relation to
o his appointment, was not verif
fied
by the responde
ents-defendants and the concern
ned University vide its letter da
ated
15.11.1991 repo
orted it to be a fake certificate. O
On the basis of information receiv
ved
from the Bunde
elkhand University, Jhansi, an
FIR No.71 dated 04.12.1991 w
was
lodged against
the appellant-plaintiff. Acquitt
al of the appellant was admitt
ted,
however it was
only by extending him benefit
t of doubt. It was pleaded that
the
orders dated 04.
.01.1993 and 29.01.2002 were p
passed in accordance with the ter
rms
and conditions
of his employment, therefore
e, it was prayed that the suit
be
dismissed. Repl
ication to the written statement
was filed reiterating the averme
ents
made in the plai
nt.
[4]. On
the basis of pleadings of the par
rties, the learned trial Court fram
med
the following iss
sues:-
“1.
Whether the plaintiff is entit
OPP
tled to declaration as prayed f
for?
2.
Whether order dated 29.01.
null and void qua the right of
.2002 and 04.01.1993 are illeg
f plaintiff? OPP
gal,
3.
4.
Whether suit is not maintaina
able in the present form? OPD
Whether the plaintiff has got
suit? OPD
t no locus standi to file the pres
sent
5.
6.
Whether suit is not maintaina
able for want of valid notice? OP
PD
Relief.”
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
4
0 (O&M)
RSA No.4171 of 201
[5]. The
e learned trial Court vide
its judgment and decree da
ated
17.05.2008, dec
creed the suit filed at the instanc
ce of the appellant-plaintiff and
the
orders dated 29
.01.2002 and 04.01.1993 were d
declared to be illegal, void and
not
binding upon
him. The appellant-plaintiff
was held entitled to reco
over
consequential be
enefits, pay etc. for 38 months pr
rior to the filing of the suit.
[6]. Agg
grieved thereof, the respondent
ts-defendants filed the first app
eal,
which was allow
wed vide judgment and decree d
dated 15/16.02.2010 passed by
the
learned First A
Appellate Court holding that th
he appellant-plaintiff had failed
d to
prove himself to
o be a graduate, that Ex.P4 wa
as an innocuous order of discha
arge
which did not vi
isit him with any stigma and tha
at the suit was in any case barred
d by
limitation; there
eby reversing the judgment and
decree passed by the learned T
Trial
Court and dismi
issing the suit filed at the instanc
ce of the appellant-plaintiff. Hen
nce,
the present Regu
ular Second Appeal.
CONTENTION
NS
ON BEHALF O
OF THE APPELLANT-PLAIN
NTIFF
[7]. Imp
pugning the aforesaid judgment
t and decree passed by the learn
ned
First Appellate
Court, learned counsel for the a
appellant-plaintiff contends that
the
order dated 04.
.01.1993, though innocently wo
orded, was in substance an or
rder
inflicting a maj
or penalty, having been passed
d on the ground that the appella
ant-
plaintiff had pro
oduced a forged graduation cer
rtificate and was therefore punit
tive
and stigmatic. I
It is urged that such an order co
ould not have been passed with
hout
issuing a show-c
cause notice, serving a charge sh
heet, holding a regular departmen
ntal
enquiry as envis
saged under Rule 16.24 of the
Rules and affording the appella
ant-
plaintiff an oppo
ortunity of hearing. The order h
having been passed behind his b
ack
and without any
y opportunity of defence, it is su
ubmitted that the same is in flagr
rant
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
5
0 (O&M)
RSA No.4171 of 201
violation of the
principles of natural justice an
nd is liable to be set aside on t
that
ground alone, th
he respondents-defendants being
g not permitted a complete go-by
y to
the settled proce
edure prescribed for a regular de
epartmental enquiry where a ma
ajor
punishment is in
n contemplation.
[7.1]. It i
s next contended that the appel
llant-plaintiff stands acquitted b
by a
competent crimi
inal Court vide judgment dated
19.05.1997 of the charge of hav
ving
produced a forg
ged graduation certificate, which
h acquittal has attained finality,
the
appeal preferred
d by the State having been dism
missed by this Court on 03.02.19
998
and no further
challenge having been laid the
ereto. The very foundation of
the
action taken ag
gainst him having thus disappe
eared, it is submitted that he w
was
entitled to be rei
instated in service with all conse
equential benefits. It is additiona
ally
contended that t
the certificate alleged to be forge
ed was neither produced nor prov
ved
on the file by
y the respondents-defendants a
and that Ex.P2, being letter N
No.
BU/Confi./3422
2/91 dated 16.12.1991 of the A
Assistant Registrar (Confidenti
ial),
Bundelkhand Un
niversity, Jhansi addressed to th
he Senior Superintendent of Poli
ice,
Faridkot and E
x.P3, being the report dated 1
18.12.1991 of Sub Inspector U
Udik
Chand who had
visited the said University, show
w the certificate to be genuine. I
It is
also contended t
that the learned First Appellate
Court has committed a grave er
rror
in holding the su
uit to be barred by limitation, in
nasmuch as the period of limitat
tion
would commen
nce not from the date on w
which the appellant-plaintiff w
was
discharged from
m service, but from the date on w
which his representation came to
o be
declined, a dire
ection for the decision whereof
f had been issued by this Court
t in
CWP No. 1774
46 of 2001.It is accordingly pra
ayed that the judgment and dec
cree
passed by the le
earned First Appellate Court be
e set aside and that of the learn
ned
Trial Court be re
estored.
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
6
0 (O&M)
RSA No.4171 of 201
ON BEHALF O
OF THE RESPONDENTS-DE
FENDANTS
[8]. Per
r contra , learned State counsel s
submits that the appellant-plaint
tiff,
being a probatio
oner, had no right to the post and
d that Ex.P4 is an order of discha
arge
simpliciter unde
er Rule 12.8 of the Rules, which
h neither casts any stigma nor vi
isits
him with any e
evil consequences and which th
herefore required no departmen
ntal
enquiry to prec
cede it. Reliance is placed upon
n State of Punjab v. Sukhwin
nder
Singh, (2005) 5
5 SCC 569 , wherein a constable
on probation was discharged un
nder
Rule 12.21 of th
he Rules without any enquiry an
nd it was held that such an orde
er is
not punitive, th
hat a probationer has no right t
to the post and that the period
d of
probation afford
ds the employer the opportunity
y to watch his performance and
d to
dispense with h
his service for want of suitabili
ity. It is further submitted that
the
appellant-plainti
iff secured employment as In
nspector by producing a forg
ged
graduation certi
ificate, Bundelkhand University
y, Jhansi having confirmed vide
e its
letter dated 15.
11.1991 that the certificate wa
as fake and DW2, namely, Vin
nod
Kumar Srivastav
va, Senior Assistant of the said
University, having deposed that
t as
per its records th
he appellant-plaintiff was never
enrolled as a student and that R
Roll
No. 24601 reli
ied upon by him relates not
to him but to one Arun Kum
mar
Srivastava, as bo
orne out from the confidential ch
hart Ex.D4.
[8.1]. It i
s also submitted that the letters
dated 10.12.1991 and 16.12.19
991,
upon which th
e appellant-plaintiff places rel
liance, were never issued by
the
University at al
ll, as established by the atteste
ed copies of the Dispatch Regis
ster
Ex.D5 and Ex.D
D6. In answer to the contention
n founded upon the acquittal, i
it is
submitted that t
he same was recorded only by
extending the benefit of doubt a
and
that in any even
nt the discharge preceded the acq
quittal by more than four years a
and
did not rest upo
on the criminal charge. It is furth
her submitted that an acquittal i
in a
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
7
0 (O&M)
RSA No.4171 of 201
criminal trial, go
overned as it is by the standard
of proof beyond reasonable dou
ubt,
does not preclud
de an employer from assessing
the suitability of a probationer
for
retention in a di
sciplined force and confers no ri
ight to reinstatement in the absen
nce
of any provisio
on in the service rules to that
effect. As regards limitation, it
t is
submitted that
the cause of action accrued o
on 04.01.1993 when the order
r of
discharge came
e to be passed and that ne
either the making of success
sive
representations
nor a direction for their disp
posal could extend the period
of
limitation, the s
suit filed on 16.10.2002 being h
hopelessly barred. It is accordin
ngly
prayed that the a
appeal, being devoid of merit, be
e dismissed.
DISCUSSION A
AND REASONING:
[9]. I h
have heard learned counsel for
the parties and gone through
the
paperbook and r
records of the case.
[10]. The
e following substantial questions
s of law arise for consideration,
the
second having b
been framed vide order dated 10.
08.2011:-
I.
Whether an order of dischar
rge passed under Rule 12.8 of
the
Rul
les during the period of probati
ion, which on its face records o
only
uns
suitability for service, is an or
rder of discharge simpliciter o
or a
pun
nitive and stigmatic order attrac
cting the requirement of a regu
ular
dep
partmental enquiry under Rule 16
6.24 of the Rules?
II.
Whether the period of limita
ation shall commence from the d
date
of r
rejection of the representation, f
for which a direction was issued
d by
this
s Court in CWP No. 17746 of 20
001 or not?
[11]. Adm
mittedly, the appellant-plaintiff
was directly appointed as Inspec
ctor
of Police on 1
12.07.1991 and was discharge
d from service vide order da
ated
04.01.1993, tha
at is, within a period of les
ss than eighteen months of
his
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
8
0 (O&M)
RSA No.4171 of 201
appointment. R
Rule 12.8 of the Rules, which
is the provision under which
the
impugned order
came to be passed, reads as und
der:-
“ 12.8. Prob
bationary nature of appointments. -
(1) Inspectors, Sergeants, Sub-Inspec
ctors
and Assista
ant Sub-Inspectors who are directly
appointed will be considered to be
e on
probation f
for three years and are liable to be d
discharged at any time during or on
the
expiry of th
he period of their probation if they f
fail to pass the prescribed examinati
ions
including th
he riding test, or are guilty of grave
misconduct or are deemed, for suffic
cient
reason, to
be unsuitable for service in the po
olice. A probationary inspector shall
l be
discharged
d by the Inspector-General and all oth
her Upper Subordinates by Range Dep
puty
Inspector-G
General and Assistant Inspector-G
General, Government Railway Pol
lice,
Assistant In
nspector-General, Provincial Additio
onal Police (designated as Command
dant,
Provincial
Additional Police) and Assistant In
nspector-General of Police (Traffic).
No
appeal lies
against an order of discharge.
[Provided
that the competent authority may, if
f it so thinks fit in any case, extend
the
period of pr
robation by one year in the aggregate
e and pass such orders at any time dur
ring
or on the ex
xpiry of the extended period of proba
tion as it could have passed during or
r on
the expiry o
of original period of probation]¹
(2) The pay
y admissible to a probationary Inspec
ctor, Sergeant, Sub-Inspector or Assis
stant
Sub-Inspec
tor is shown in Appendix 10.64, Table
e A.”
N ATURE OF THE
E ORDER OF DISCHARGE
[12]. A
perusal of the record shows
that the order dated 04.01.19
993
(Ex.P4), in its o
operative portion, reads that th
he appellant-plaintiff "is found
un-
suitable for serv
vice in Police Department and
is hereby discharged from serv
vice
under rule 12.8
of the Punjab Police Rules, 1934
4 with immediate effect." Thus, i
it is
clear that it inv
vokes the third limb of Rule 1
2.8(1), namely, that the officer
r is
deemed, for suff
fficient reason, to be unsuitable f
for service in the police and not
the
second limb rela
ating to grave misconduct. It is
significant that the order makes
s no
reference whats
oever to the graduation certific
ate, to Bundelkhand University
, to
FIR No. 71 date
ed 04.12.1991, or to any allegatio
on of misconduct on the part of
the
appellant-plainti
iff, nor does it record any finding
g of guilt.
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
9
0 (O&M)
RSA No.4171 of 201
[12.1].
The description of the ap
ppellant-plaintiff in Ex.P4 as
s a
"Temporary Insp
spector" does not advance his c
case. He was directly appointed
d as
Inspector on the
e recommendation of the Depa
artmental Selection Committee a
and
the learned First
t Appellate Court recorded that h
he was appointed on probation fo
or a
period of three
years extendable by another ye
ear, which corresponds precisely
y to
Rule 12.8(1) re
ead with its proviso. He was t
therefore a probationer within
the
meaning of the
said Rule on the date of the
impugned order, whatever be
the
nomenclature em
mployed in Ex.P4. It may also
be noticed that Rule 12.8(1) ve
ests
the power to dis
scharge a probationary Inspector
r in the Inspector-General of Pol
lice
and that Ex.P4 h
has been issued from the office
e of the Director General of Poli
ice,
Punjab, that bein
ng the redesignated head of the
Police Department in the State,
, no
objection as to
the competence of the authori
ity passing the order having b
een
raised at any sta
age in the pleadings or before the
e learned Courts below.
[13]. The
e submission that the order, thou
ugh innocuously worded, is punit
tive
in substance mu
ust be tested upon the principles
s governing probationers genera
ally.
Though Sukhwi
inder Singh’s case (supra) per
rtains to Rule 12.21 of the Ru
ules,
which governs
constables, the principles enunc
ciated therein are not rule-speci
ific,
being drawn fro
om a line of decisions which did
d not arise under the Police Rule
s at
all. The test ther
re laid down is that an order of
termination is punitive only wh
here
there was, prior
r to the termination, a full-scal
le formal enquiry, into allegati
ons
involving moral
l turpitude or misconduct, whic
ch culminated in a finding of g
guilt
and that if any
one of these three factors is
missing, the termination has b
een
upheld. It was f
further held, following State of P
Punjab v. Balbir Singh, (2004)
11
SCC 743 , that w
where an assessment is aimed a
at determining the suitability of
f an
employee for a
particular job, the resultant term
mination is one simpliciter and
not
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
10
0 (O&M)
RSA No.4171 of 201
punitive and th
hat it is only where the misc
conduct forms the foundation,
as
distinguished fro
om the motive, of the order that
t it assumes a punitive character
r. It
was also observ
ved, adopting the formulation in
n Pavanendra Narayan Verma
a v.
Sanjay Gandhi
i PGI of Medical Sciences, (2
(2002) 1 SCC 520 , that genera
ally
speaking, when
n a probationer's appointment
is terminated it means that
the
probationer is un
nfit for the job, whether by reas
on of misconduct or ineptitude a
and
that in order to a
amount to a stigma the order mu
ust be in a language which impu
utes
something over
and above mere unsuitability for
r the job.
[14]. Rul
le 12.8 and Rule 12.21 are struc
cturally alike in fixing a three-y
year
screening perio
od, in resting discharge upon
the satisfaction of the compet
tent
authority as to t
he suitability of the officer and
in expressly excluding any right
t of
appeal. If anyth
ing, Rule 12.8 spells out its gro
ounds on the face of the Rule its
self.
The principles a
aforesaid are accordingly attract
ted with equal force to a discha
arge
under Rule 12.8
of the Rules. Applying those pr
rinciples, Ex.P4 was preceded by
y no
formal enquiry i
into any charge, culminated in n
no finding of guilt and is couched
d in
language imput
ing nothing beyond unsuitabilit
ty. The authorities relied upon
by
learned counsel
l for the appellant-plaintiff, w
wherein orders of discharge h
had
themselves inc
corporated various instances
s of misconduct, are clea
arly
distinguishable,
there being no incorporation
of any instance of misconduct
t in
Ex.P4.
[15]. It
follows that the absence of
a show cause notice and of
an
opportunity of h
hearing prior to the passing of Ex
x.P4 does not vitiate the order. T
The
requirement of
affording an opportunity of def
fence arises where an employee
e is
sought to be vis
sited with a punishment founded
d upon a charge, in which event
the
protection of Ar
rticle 311(2) of the Constitution
and of Chapter XVI of the Rule
es is
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
11
0 (O&M)
RSA No.4171 of 201
attracted. Where
e the order is one of discharge
simpliciter of a probationer, m
ade
upon an assessm
ment of his suitability, no such
h right accrues. Rule 12.8(1) its
self
confers the pow
wer to discharge without prescrib
bing any procedure anterior ther
reto
and each of its t
three limbs attracts the same con
nsequence of discharge without a
any
right of appeal
l, which is a clear indication
n that the Rule contemplates
an
administrative d
decision on suitability and no
ot a disciplinary proceeding. T
The
learned Trial C
Court, in proceeding upon the
footing that the minimum ba
asic
requirements of
f law and the service rules ha
ad not been complied with bef
fore
passing the ord
der of discharge, overlooked thi
is distinction and thereby fell i
into
error, which erro
or the learned First Appellate Co
ourt has rightly corrected.
[16]. As
regards the contention that
the certificate produced by
the
appellant-plainti
iff was in fact genuine, the same
e need not detain this Court. Ex
x.P4
records no reaso
on beyond unsuitability for servi
ice and the material concerning
the
certificate could
d, at the highest, be said to have
furnished the motive which led
the
competent auth
hority to assess his suitability
for retention in service. As h
held
hereinabove, an
order resting upon such an asse
essment does not cease to be one
e of
discharge simp
liciter merely because the ass
sessment was prompted by su
uch
material. That a
apart, the learned First Appellat
te Court has, upon a reappraisal
l of
the evidence, rev
versed the finding of the learned
d Trial Court on this aspect and h
held
that the appellan
nt-plaintiff, upon whom the burd
den lay, had at no stage attempted
d to
prove that he h
held a genuine degree of Bun
delkhand University, Jhansi. T
That
conclusion is bo
orne out by the record, the auth
hor of Ex.P2 having admittedly
not
been examined a
and discloses no perversity warra
anting interference.
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
12
0 (O&M)
RSA No.4171 of 201
EFFECT OF T
THE ACQUITTAL
[17]. Mo
oreover, it is necessary to deal w
with the contention that the acqui
ittal
of the appellan
nt-plaintiff entitled him to reins
statement. The order of discha
arge
dated 04.01.199
93 was, as held hereinabove, not
t founded upon the criminal cha
arge
but upon the a
assessment of the appellant-pla
aintiff's suitability for retention
n in
service, an asses
ssment which the competent aut
thority was entitled to make on
the
material before
it. The criminal acquittal is the
erefore simply not germane to
the
validity of Ex.P4
4. It requires to be noticed that t
the discharge preceded the acqui
ittal
by more than fo
our years and the two proceeding
gs operated in wholly distinct fie
elds
governed by d
different standards of proof,
the one requiring proof beyo
ond
reasonable doub
bt and the other, so far as the dep
partmental assessment of suitabi
ility
is concerned, re
equiring no more than the satis
faction of the competent autho
rity
arrived at bona f
fide.
[17.1].
In any event, a mere acq
quittal does not confer upon
an
employee an in
ndefeasible right to reinstatemen
nt or to continuance in service.
. In
Inspector Gene
eral of Police v. S. Samuthiram
m, (2013) 1 SCC 598 , the Hon’
’ble
Supreme Court
held that, in the absence of any
y provision in the service rules
for
reinstatement, a
acquittal by a criminal Court, ev
ven an honourable one, does not
t by
itself confer upo
on an employee a right to claim a
any benefit including reinstateme
ent.
The relevant por
rtion of S. Samuthiram’s case (s
supra) is extracted hereunder:-
“23
3. As we have already indicated, in th
e absence of any provision in the ser
rvice
rule
e for reinstatement, if an employee
is honourably acquitted by a Crim
minal
Cou
urt, no right is conferred on the em
mployee to claim any benefit includ
ding
rein
nstatement. Reason is that the standar
rd of proof required for holding a per
rson
guil
lty by a criminal court and the enq
quiry conducted by way of disciplin
nary
proc
ceeding is entirely different. In a cri
iminal case, the onus of establishing
g the
guil
lt of the accused is on the prosecut
tion and if it fails to establish the g
guilt
beyo
ond reasonable doubt, the accused is
s assumed to be innocent. It is settled
law
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
13
0 (O&M)
RSA No.4171 of 201
that
t the strict burden of proof required to
o establish guilt in a criminal court is
s not
requ
uired in a disciplinary proceedings
and preponderance of probabilitie
es is
suff
ficient. There may be cases where a p
person is acquitted for technical reas
sons
or t
the prosecution giving up other witn
nesses since few of the other witnes
sses
turn
ned hostile etc. In the case on hand
d the prosecution did not take steps
s to
exam
mine many of the crucial witnesses on
n the ground that the complainant and
d his
wife
e turned hostile. The court, therefore,
acquitted the accused giving the ben
nefit
of d
doubt. We are not prepared to say
in the instant case, the respondent
was
hon
nourably acquitted by the criminal cou
urt and even if it is so, he is not entitle
ed to
clai
im reinstatement since the Tamil Nadu
u Service Rules do not provide so.”
The autho
orities relied upon by the appe
ellant-plaintiff are cases where
the
delinquent offic
cial was terminated straightaw
way upon the mere accusation
or
registration of
a criminal case against him
m without holding any regu
ular
departmental en
nquiry, whereas in the present c
case the appellant-plaintiff has
not
been terminated
d upon any allegation of misco
onduct at all, as is apparent fr
rom
Ex.P4 itself.
L IMITATION
[18].
The other substantial ques
stion of law framed pertains
to
limitation, name
ely, whether the period of limita
ation shall commence from the d
date
of rejection of th
he representation, for which a di
irection was issued by this Cour
rt in
CWP No. 1774
46 of 2001. It is contended tha
at limitation began to run only
on
29.01.2002, whe
en the representation came to be
e rejected and that the learned F
First
Appellate Court
t erred in reckoning it from 04
4.01.1993. It is true that CWP N
No.
17746 of 2001
came to be disposed of on 0
08.11.2001 with a direction to
the
concerned autho
ority to consider and decide the
e representation annexed thereto
o at
Annexure P-7 i
in accordance with law by pas
ssing a speaking order within
six
months. To that
extent, the observation of the le
earned First Appellate Court that
t no
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
14
0 (O&M)
RSA No.4171 of 201
request had bee
en made for deciding the repre
esentation is not borne out. Th
hat,
however, does n
not assist the appellant-plaintiff.
[18.1].
A direction to consider and
d decide a representation does
not
create a fresh c
cause of action, nor does it rev
vive a cause of action which
has
already become
e barred. The cause of actio
on for assailing the order da
ated
04.01.1993 accr
rued on that date itself. The ea
arliest of the representations rel
lied
upon is dated 01
1.06.1997, made more than four
years thereafter, by which time
the
period of limita
ation had already expired. Rule
e 12.8(1) of the Rules, moreov
ver,
expressly provi
ides that no appeal lies again
nst an order of discharge pas
ssed
thereunder and a
a representation preferred where
e no statutory remedy is availabl
e is
no more than a
request for reconsideration, the
e pursuit of which neither suspe
nds
nor enlarges lim
mitation. Were it otherwise, a liti
igant could keep a stale claim al
live
indefinitely by a
addressing successive representa
ations and by obtaining a direct
tion
for their disposa
al. In Union of India v. M.K. Sar
rkar, (2010) 2 SCC 59 , the Hon
'ble
Supreme Court
, after noticing its earlier dec
ision in C. Jacob v. Director
r of
Geology and Mi
Mining, (2008) 10 SCC 115 , obser
rved as under:-
“9.
The order of the Tribunal allowing th
he first application of respondent with
hout
exam
mining the merits, and directing appe
ellants to consider his representation
has
give
en rise to unnecessary litigation and a
avoidable complications. The ill-effect
ts of
such
h directions have been considered by
by this Court in C. Jacob v. Director
r of
Geo
ology and Mining & Anr., 2008(4) SC
CT 604 : 2009(10) SCC 115 :
"The courts/tribunals proceed
on the assumption, that every cit
tizen
deserves a reply to his representa
ation. Secondly they assume that a m
mere
direction to consider and dispos
e of the representation does not invo
olve
any 'decision' on rights and obli
igations of parties. Little do they rea
alise
the consequences of such a direct
tion to 'consider'. If the representatio
on is
considered and accepted, the ex-
-employee gets a relief, which he wo
ould
not have got on account of the lon
ng delay, all by reason of the directio
on to
'consider'. If the representation
n is considered and rejected, the
ex-
employee files an application/w
writ petition, not with reference to
the
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
15
0 (O&M)
RSA No.4171 of 201
original cause of action of 198
82, but by treating the rejection of
f the
representation given in 2000, as t
the cause of action. A prayer is made
e for
quashing the rejection of represen
ntation and for grant of the relief claim
med
in the representation. The Tribun
nals/High Courts routinely entertain s
such
applications/petitions ignoring
the huge delay preceding
the
representation, and proceed to e
examine the claim on merits and gr
rant
relief. In this manner, the bar of
f limitation or the laches gets oblitera
ated
or ignored."
Whe
en a belated representation in regar
rd to a 'stale' or 'dead' issue/disput
te is
cons
sidered and decided, in compliance w
with a direction by the Court/Tribuna
al to
do s
so, the date of such decision can not b
be considered as furnishing a fresh ca
ause
of a
action for reviving the 'dead' issue
or time- barred dispute. The issue
e of
limi
itation or delay and laches should be
considered with reference to the orig
ginal
caus
se of action and not with reference to
o the date on which an order is passe
ed in
com
mpliance with a court's direction. Ne
Neither a court's direction to conside
er a
repr
resentation issued without examinin
ng the merits, nor a decision given
n in
com
mpliance with such direction, will exte
end the limitation, or erase the delay
and
lach
hes…….”
[18.2]. The
e order dated 08.11.2001 was,
on its own terms, a direction
n to
consider and d
decide the representation by a
a speaking order and records
no
examination of
the merits of the claim. The
order dated 29.01.2002 passed
d in
compliance the
erewith could not, therefore, f
furnish a fresh starting point
for
limitation in res
spect of a cause of action which
h had accrued and become barr
red,
long before. Th
he question framed is accordin
ngly answered by holding that
the
period of limita
ation commenced from the date
of the order of discharge and
not
from the date of
f rejection of the representation.
The suit having been instituted
d on
16.10.2002, aga
ainst an order dated 04.01.1993
, was barred by limitation and
the
conclusion of th
he learned First Appellate Court t
to that effect.
CONCLUSION
N
[19]. In v
view of the above, the appellant-
-plaintiff being a probationer wit
thin
the meaning of
f Rule 12.8(1) of the Rules and
d Ex.P4 recording nothing beyo
ond
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document
16
0 (O&M)
RSA No.4171 of 201
unsuitability for
r service without any reference
e to misconduct or any finding
g of
guilt, the order i
is one of discharge simpliciter an
nd not a punitive or stigmatic ord
der.
No show cause n
notice, charge-sheet, opportunity
y of hearing or regular departmen
ntal
enquiry under R
Rule 16.24 of the Rules was ther
efore required to precede it and
the
plea founded up
pon a violation of the principle
es of natural justice must fail. T
The
subsequent acq
uittal, recorded more than fou
ur years after the discharge in
n a
proceeding gove
erned by an altogether different
standard of proof, neither impin
nges
upon the validi
ity of Ex.P4 nor confers any
right to reinstatement. The s
suit,
moreover, was
instituted nearly ten years afte
er the order of discharge and w
was
barred by limita
ation, the rejection of the represen
ntation furnishing no fresh cause
e of
action.
[20]. Bot
th the substantial questions
of law framed hereinabove
are
accordingly answ
wered against the appellant-plain
ntiff.
[21]. In
such circumstances, finding n
no illegality or perversity in
the
findings recorde
ed by the learned First Appell
late Court, which are based up
pon
proper appreciat
tion of the pleadings and the evid
dence available on record and th
here
being no misrea
ading thereof pointed out specif
fically, the impugned judgment a
and
decree dated 1
5/16.02.2010 calls for no inte
erference. Resultantly, the pres
sent
appeal, being de
evoid of merits, is dismissed.
[22]. Pen
nding application, if any, also sta
ands disposed of.
(HARKESH MANUJA)
JUDGE
September 08, 2
Atik
2026
ether speaking/reasoned Yes/No
ether reportable Yes/No
Whe
Whe
MOHMED ATIK
2026.09.14 18:16
I attest to the accuracy and
integrity of this document