Full Judgment Text
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CASE NO.:
Appeal (civil) 4441 of 2001
PETITIONER:
State of Punjab and others
RESPONDENT:
Sukhwinder Singh
DATE OF JUDGMENT: 14/07/2005
BENCH:
CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
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
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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
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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
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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
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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
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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
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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
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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.