CIVIL WRIT PETITION NO.10297 OF 2010 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: OCTOBER 17 ,2011
Rahul
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. S. K. Garg Narwana, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr.DAG, Haryana,
for the State.
****
RANJIT SINGH, J.
Constable petitioner was discharged from service
by invoking Rule 12.21 of Punjab Police Rules, 1934 (for
short, “the Rules”) on the ground that he was unlikely to
prove an efficient police official. The petitioner would
impugn this order on the ground that the real purpose and
reason behind passing this order is the allegation of absence
from duty and this order has been passed by way of
punishment, rather than ordering discharge of the petitioner
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innocuously. The petitioner would further urge that such an
order could have been made only by following procedure
prescribed under Rule 16.32 of the Rules by holding enquiry
and affording proper opportunity to the petitioner to defend
himself. On these very grounds, the petitioner had filed a
detailed representation against the order of his discharge,
which was also rejected and the same is also impugned
through the present writ petition.
The petitioner would raise this question in the light
of facts, which are noticed hereunder.
The petitioner was enrolled as a Constable in
Haryana Police on 23.4.2004. He was transferred from
Headquarters Madhuban to a Company at Panchkula on
12.1.2007. He could not report for duty at the new place of
posting immediately as he claims to have fallen sick.
Ultimately, the petitioner reported for duty at Panchkula on
27.1.2007. Commandant of the 2nd Battalion, Haryana Armed
Police, of which the Company where the petitioner was
posted formed part, issued a show cause notice to the
petitioner, requiring him to answer as to why he should not
be discharged from service under Rule 12.21 of the Rules for
willful absence from duty for the period from 12.1.2007 to
26.1.2007. The petitioner submitted his reply, pleading that
he was compelled by circumstances arising out of his
sickness that he could not report for duty in time. The
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petitioner claims to have produced documents to the effect
that he was admitted as an outdoor patient at General
Hospital, Rohtak, from 12.1.2007 to 23.1.2007 and
thereafter had reported for duty after undertaking journey
upon being declared fit to resume his duty. The petitioner
complains that without considering this aspect of inability on
his part, respondent No.4, his Commandant passed an order,
discharging him from service by invoking Rule 12.21 of the
Rules. In this background, the petitioner complains that this
discharge was in violation of the procedure prescribed.
As per the petitioner, he could have been removed
on account of absence only after following a procedure
prescribed of holding a regular enquiry as contained in Rule
16.24 of the Rules. The petitioner was further prejudiced,
when his statutory appeal was not entertained and
dismissed only on the ground that the same is not
maintainable against the order of discharge. The petitioner
thereafter had filed a revision on 25.7.2007 by invoking the
enabling provisions of Rule 16.32 of the Rules but has heard
nothing about the outcome thereof till date. The petitioner
claims to have followed it up by filing a supplementary
revision petition on 11.1.2010, when he was informed that
no appeal etc. would lie against the order of discharge. He
has accordingly filed the present writ petition.
The sole grievance of the petitioner is that he has
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been discharged from service due to his absence without
considering his defence that he was sick and had taken
treatment during the period he had remained away from
duty. As per the petitioner, this order may look to be an
innocuous one but in fact it is meant to punish the petitioner
for his absence and, thus, was punitive in nature. The
petitioner accordingly would contend that this order could
not have been passed by invoking the provisions of Rule
12.21 of the Rules and could have been passed under the
provisions of Rule 16.26 of the Rules.
The issue requiring adjudication, thus, is whether
this order can be termed as punitive and so could have been
made under Rule 12.21 of the Rules or not. In other words,
whether there was any need under law to pass this order by
following a procedure as given in Rule 16.24 of the Rules.
Rule 12.21 makes a provision for discharge of
inefficient soldier. It provides that a Constable, who is found
unlikely to prove an efficient police officer, may be
discharged at any time within three years of his enrollment.
This Rule further specifically provides that no appeal shall lie
against the order of discharge passed under this Rule. Rule
12.21 of the Rules is as under:-
“12.21 Discharge of inefficients – A Constable who
is found unlikely to prove an efficient police officer
may be discharged by the Superintendent at any
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time within three years of enrolment. There shall
be no appeal against an order of discharge under
this Rule.”
Object of this Rule is to pass an order simply
discharging a police officer, who is considered inefficient
and, thus, not likely to prove a good or efficient police
officer. By invoking this power and jurisdiction, the employer
does not terminate the services of an employee. If an
employee acts in any wrong manner, then only the order of
termination is passed. That being the position, it would not
be necessary for the employer to adopt the procedure
prescribed for imposing a penalty, which is generally done in
those cases where any punitive order, terminating the
services of an employee is required to be made. Such orders
are passed only when the employer intends to punish the
employee.
Such an order of discharge otherwise can only be
passed within three years of enrolment and, thus, a
distinction has been made between a temporary and
permanent employee. The provisions of Rule 12.21 of the
Rules is clearly intended to provide an opportunity to the
employer to watch the performance of a Constable and for
that purpose there may not be a need to place a person on
probation. If during this period, the Constable acquits
himself properly, then he has a right to continue in service.
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On the other hand, this Rule leaves a discretion with the
Superintendent of Police to pass a simple order of discharge
or alternatively to take penal action.
From the wording of the Rule, it is clear that a
Constable can be discharged from service under this Rule at
any time within three years of his enrolment inspite of the
fact that there is/was a specific allegation, which may even
amount to misconduct. The Superintendent of Police has
enabling powers and can form an opinion regarding the
likelihood or otherwise of a Constable making a good police
officer or not only on the basis of periodic reports but also on
the basis of any other relevant material. This being the spirit
and purpose of the Rule, the provisions of Rule 16.24 and
Article 311 can only be attracted when the punishing
authority decides to punish the Constable. (See Sher Singh
Vs. State of Haryana, 1994 (3) SCT 1).
In a way, this Rule is akin to a rule of probation
and a Constable for a period of three years would always be
under consideration like the probationist is. The concept of
keeping a person on probation to test his suitability is a well
known procedure under the service jurisprudence. The right
of the probationist and the type of order that can visit them
has always been a matter of debate before various judicial
forums. In respect of a probationist, an employer always has
an option to pass an innocuous order, discharging or
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dispensing with the services of an employee even if there be
a charge of misconduct against him without adopting the
cumbersome procedure of holding an enquiry and passing
an order of punishment. Sometimes, the Courts have also
viewed that under the garb of order of discharge or
innocuous order of release or termination in respect of a
probationist or a temporary employee, he can not be visited
with a punishment. If the order is either punitive in nature or
is passed by way of punishment, giving it a colour of
discharge of a probationist etc., then the Court even has the
power to lift the veil and see if such an order is passed by
way of punishment or simply an order of discharge,
relieving/releasing the probationist or a temporary
employee.
Whether a particular order is punitive or innocuous
or an order simpliciter of discharge, has always confronted
various judicial forums and has been subject matter of
debate even before the Hon’ble Apex Court. The submission
made by counsel for the petitioner is that the order in fact
has been passed by way of punishment and is actuated with
the allegation of absence whereas it is shown to have been
made and rather is made under Rule 12.21 of the Rules to
give it a colour of being an innocuous order. Though not
pleaded in this manner but the counsel would pray for this
Court to lift the veil and see the real purpose and motive
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behind this order and if it is found to be by way of
punishment, then to set it aside being in violation of the
procedure prescribed under the Rules. This line of
submission is pursued by the counsel only on the basis of
show cause notice, which was issued to him, when he
reported for duty after remaining absent for a fortnight
approximately, asking him to explain the cause of his
absence. Copy of the show cause notice is placed on record
as Annexure P-1.
No doubt, the Commandant, 2nd Battalion
H.P.Madhuban, had issued a show cause notice (Annexure P-
1), requiring the petitioner to explain as to why he had
remained absent from duty with effect from 12.1.2007 to
27.1.2007 but on that basis and on the basis of his previous
absence on 8 occasions, the view was formed that the
petitioner was not taking interest in the service. The
petitioner was specifically put to notice that he was unlikely
to prove an efficient police officer. Thus, this show cause
notice was issued under Rule 12.21 and it is so specifically
mentioned in the show cause notice itself. Rather, the
Commandant had given an opportunity to the petitioner to
show cause if he wish to say anything, which indeed was not
required under Rule 12.21 of the Rules. This show cause
notice, thus, can not be termed as something which was
aimed at awarding any punishment to the petitioner. The
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petitioner was clearly apprised that action was proposed
against him under Rule 12.21 of the Rules, which clearly
empowered the Superintendent of Police concerned to pass
this order within the period of first three years of the service
of the petitioner.
The doubt in regard to the nature of the order can
clearly be dispelled from the wording of the order itself.
There is neither any mention made in the order showing this
order to be punitive in nature nor it conveys any such sense.
The order clearly is an innocuous and is worded in a simple
language and clearly mentioned to be under Rule 12.21 of
the Rules. The impugned order reads as under:-
“Constable Rahul No.2/202 of this Bn. is
discharged from service with immediate effect
under rule 12.21 of Punjab Police Rules 1934, as
he is unlikely to prove an efficient Police Officer.
Sd/- Suman Manjari, Commandant, 2nd Bn., HAP,
Madhuban”
In the background, as noticed above there is not
much justification to go into the number of judgements cited
by counsel for the petitioner, which apparently would have
no applicability to the facts of the case. Still to be fair to the
counsel for the petitioner, the judgements referred to are
being noticed.
The counsel has first referred to Guru Nanak Dev
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University, Amritsar and others Vs. Jaspal Singh, 2011(2)RSJ
699. While interpreting the statute of Guru Nanak University,
this Court has observed that absence from duty and
overstayed of leave is considered to be a misconduct and
holding of an enquiry is must. There would not be any
dispute about this proposition of law but the petitioner was a
probationist and the employer had an option either to
proceed against him for misconduct or to invoke the
alternative available to the respondents to pass an order, for
which there are sufficient power available under Rule 12.21
of the Rules. The judgement relied upon by the petitioner
does not in any manner indicate if it was a case of
probationist or order was passed as such by way of
punishment.
The counsel then refers to Ex.Constable Balwant
Singh Vs. State of Haryana, 1991 (1) RSJ 680, where this
Court has viewed that absence from duty can not be
described as willful or wanton and also can not said to be a
gravest act of misconduct. This was a case of imposing a
penalty of dismissal from service, which was held not
warranted under the circumstances. How this case would be
attracted to the facts of the present case, which is not that
of a dismissal but of a discharge under Rule 12.21 is not
understood. Moreover, this was not a case of one absence
but a conduct on the part of the petitioner to remain absent
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off and on during the first three years of service, which could
justify the opinion formed that the petitioner was unlikely to
be an efficient police officer.
Reference to the case of Anoop Jaiswal Vs.
Government of India and others, 1984 (1) All India Service
Law Journal 428 again appears to be ill founded. This was a
case where discharge from service was found to be on
account of misconduct but only an innocuous order was
passed. The Hon’ble Supreme Court observed that form of
an order is not decisive and where it is merely a camouflage
for an order of dismissal, then the order of discharge can be
set-aside on the ground that reasonable opportunity to
defend was not given. No doubt that the form of order is not
decisive but what is required to be seen is what is the
foundation of order. If the misconduct is found to be the
foundation of the order, then perhaps it can be termed as a
punitive one but if such a misconduct is something which is
only a motive of passing the order, which is innocuously
expressed, then it can not be termed as punitive in nature.
Generally speaking, all forms of terminations
would be by way of punishment. Still one would talk of order
being simpliciter in nature or it being stigmatic. Strikingly,
the stigma is implicit in the termination order but simple
termination is not considered stigmatic. A termination order
which explicitly states what is implicit in every order of
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termination of a probationer’s appointment is also not
stigmatic. The question then may be as to what is stigmatic
order? In order to amount to a stigma, the order must be in
a language, which impute something over and above mere
unsuitability for the job. In fact, Courts have always had to
perform the balancing act between denying a probationer
any right to continue in service while at the same time
granting him right to challenge the termination of his service
when it is by way of punishment.
It is noticed that law has developed a long way
and as noticed by the Supreme Court, apparently in illogical
lines in determining when termination of temporary
appointee’s or a probationer’s service amounts to
punishment. The Hon’ble Supreme Court has also felt that
need was not so much to reach perfect justice but to lay
down a plain test, which the Administrator, Civil Servant etc.
can understand subtly and without any difficulty.
The development in this field of law basically
started in 1958 with the case of Purshotam Lal Dhingra Vs.
Union of India, AIR 1958 Supreme Court 36. Though the field
thereafter has been covered by various Constitutional
Benches decisions but still there has been a diverse judicial
trend, which is difficult to be disciplined into one single
simple practical formula applicable to termination of
probationer or fresher and of service of temporary
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employee.
There have been two lines of cases, which have
dealt with this question. In certain cases of temporary
servant or probationer, it has been viewed that if exparte
enquiry or a report is a motive for termination order, then it
is not punitive, merely because the principles of natural
justice have not been followed. Other line of cases are those
where the Courts have held that the facts revealed in
enquiry are not the motive but the foundation of the
termination of service of the temporary servant or
probationer and hence, punitive as principles of natural
justice have not been followed. To find out which case will
fall in which category, it is permissible for the Courts to go
behind the order and look into the record of proceedings, the
antecedents and the attendant circumstances culminating in
the order of termination. It is, however, not clear enough as
to in what situation allegation of misconduct would be
motive and in which it will be foundation.
D.Smith says “proximity between investigation
and act or decision depends upon the degree of proximity so
far as the person effected claiming a right of hearing is
concerned”. He further says “where a person holds a
preliminary investigation with a view to recommending a
formal enquiry or a hearing, is not normally under obligation
to comply with the rules of fairness but he may be placed
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under such an obligation if investigation is an integral part of
process, which may terminate in action adverse to the
interest of person claiming to be heard before him”.
The Hon’ble Supreme Court has observed that
these principles are close to what was held in Samsher
Singh Vs. State of Punjab and another, (1974) 2 Supreme
Court Cases 831. The development of law accordingly was
noticed by the Supreme Court between the years 1958 and
1974 in the first phase i.e. between Purshotam Lal Dhingra’s
and Samsher Singh’s cases (supra). During this period,
seven judgements have been delivered by the Hon’ble
Supreme Court. The detailed reference to all these decisions
may not be necessary having regard to the factual
controversy involved in this case but the test of motive and
foundation, as already notice, was laid down in Purshotam
Lal Dhingra’s case (supra). In The State of Bihar Vs. Gopi
Kishore Prasad, AIR 1960 Supreme Court 689, the Hon’ble
Supreme Court has laid down the test of enquiry.
Government had come to the conclusion on the basis of
enquiry that the employee was unsuitable for the post and
because of the enquiry it was viewed that the order was
passed by way of punishment. If the enquiry was to find
suitability, then it was held not to be a punishment. State of
Orissa Vs. Ram Narayan Dass, AIR 1961 Supreme Court 177
gave new dimension to the legal principles in this regard. It
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is observed that where it is proposed to terminate the
probationer for any specific fault or for unsuitability, he may
be apprised of the ground for such proposal. This new test
came to be applied to look into the object and purpose of
enquiry. If the enquiry is to ascertain his fitness, then it is
not the same which is to find out about misconduct. Later,
difficulty to understand the difference between motive and
foundation came to be expressed in some of the cases. In
Samsher Singh’s case (supra), the enquiry conducted in the
case was not held to be a preliminary enquiry and the order
was, thus, termed as punitive. The difficulty to understand
the difference between motive and foundation to an extent
was removed in Gujarat Steel Tubes Ltd. and others Vs.
Gujarat Steel Tubes Mazdoor Sabha and others, (1980) 2
Supreme Court Cases 593. In this case, the Hon’ble
Supreme Court observed that the Court will find out from
other proceedings or documents connected with formal order
of termination what the true ground for termination is. If
punitive in flavour in cause or consequence, it is dismissal
and if it falls short it can not be called punitive. Importantly,
the Hon’ble Supreme Court in this case has held that even if
there is a suspicion of misconduct, the Master may say that
he does not want to bother about it and may not go into his
guilt but may feel like not keeping a man, he is not happy
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with. He may not like to investigate nor take the risk of
continuing a dubious element. In other words, it is motive if
the Master after gathering some prima-facie facts does not
wish to go into the truth. If he conducts enquiry for the
purpose of proving a misconduct an employee is not heard, it
is case of foundation.
This in fact would answer the issue in the present
case. The order has been expressed in a form, which does
not give any indication of it being punitive. It is a simple
innocuous order of discharge, which also contains a
reference to the legal provision under which this order has
been so made. There was no enquiry held. Only a show
cause notice was issued. Show cause notice was also not
for taking any action but was only to apprise the petitioner
that he is not likely to be a efficient police officer and,
therefore, put to notice for discharge under the enabling
provisions in this regard. The submission that enquiry ought
to have been held as it was due to absence that this action
was being proposed is apparently misplaced. The absence
or a show cause notice was not the foundation of the order
of discharge but was only a motive, which moved the
authorities to invoke their jurisdiction to pass this order,
which is not punitive in nature.
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This question was also considered by this Court in
Civil Writ Petition No.2738 of 1989 (Prem Parkash Vs. The
State of Haryana and others), decided on 23.10.2009. The
court in this case has also examined to see if the incident,
which led to passing of the order, was a motive or inducing
factor or was the foundation of an order of discharge,
ordered under Rule 12.21 of the Rules. Judgements in the
cases of State of Punjab Vs. Balbir Singh, JT 2004 (7) SC
383 and Radhey Shyam Gupta Vs. U.P.State Agro.
Industries Corporation Ltd., (1999) 2 SCC 21 were
noticed, where this issue was exhaustively dealt with from all
aspects. In Radhey Shyam’s case (supra), a reference has
been made to number of other decisions to notice that
decision to terminate the services of temporary servant or
one on probation on the basis of adverse entry or on the
basis of an assessment that his work is not satisfactory will
not be punitive inasmuch as the above facts are merely the
motive and not the foundation. In such cases, assessment is
done only with a view to decide whether person is to be
retained or ought to be continued in service or not. In such
cases, position would not be any different even if a
preliminary enquiry is held in some cases because
preliminary enquiry would be to find out if there is prima-facie
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evidence or material to initiate regular departmental enquiry.
Even in Balbir Singh’s case (supra), the Hon’ble Supreme
Court referred to the test to be applied to see if the
misconduct is a motive or foundation of the order of
termination. The Court observed as under:-
“Thus the principle that in order to determine whether the
misconduct is motive or foundation of order oftermination, 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 simplicitor and not punitive in
nature. This principle was laid down by Shah, J. (as he
then was) as early as 1961 in the case of State of Orissa
v. Ram Narayan Das [(1961)(1) SCR 606]. It was held
that one should look into `object or purpose of the
enquiry’ and not merely hold the termination to be punitive
merely because of an antecedent enquiry. Whether it
(order of termination) amounts to an order of dismissal
depends upon the nature of the enquiry, if any, the
proceedings taken therein and the substance of the final
order passed on such enquiry. On the facts of that case,
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the termination of a probationer was upheld inasmuch as
the purpose of the enquiry was held to be to find out if the
employee could be confirmed. The purpose of the enquiry
was not to find out if he was guilty of any misconduct,
negligence, inefficiency or other disqualification.”
In view of the detailed law as noticed above, the
impugned order can not by any stretch of imagination be
termed as punitive to call for any investigation or enquiry.
The submissions made by learned counsel for the petitioner
are misplaced.
There is no merit in the writ petition and the same
is accordingly dismissed.
October 17 ,2011 ( RANJIT SINGH ) khurmi JUDGE