Delhi High Court
Kishan Chand vs The Secretary Union Of India And Ors. on 1 September, 1994
Equivalent citations: 1994IIIAD(DELHI)1473, 1994(30)DRJ683
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
(1) Vide order dated 13.8.79 this Court admitted this second appeal for hearing the parties on the following three substantial questions of law : (1) Whether on the terms of the letter of appointment issued to the appellant his appointment was on probation to a permanent post or a temporary appointment? (2) Whether the appellant was dismissed by an authority competent in that behalf? (3) Whether the dismissal of the appellant involved any stigma or punishment?
(2) A statement in brief of the facts of the case would be necessary inasmuch as the same is required to appreciate the merits of an application for amendment of - plaint under Order 6 Rule 17 Civil Procedure Code moved by the appellant.
(3) It is not disputed that the appellant was appointed as a constable in the service of Ministry of Home Affairs. On 28.1.1976, the Commandant Delhi Armed Police 2nd Bn. Delhi, Mr. B.K. Mishra, Ips, terminated the service of the appellant by an innocuous order and without assigning any reasons. The appellant challenged his termination by filing this suit on the grounds that his services could not have been terminated without assigning any reasons and without affording him an opportunity of hearing and that the Commandant, Delhi Armed Police could not have terminated the services of the appellant as the appointment of the appellant was made by an authority superior to that of the Commandant. Union of India, the defendant, contested the appellant's case by submitting that the appellant was appointed temporarily and in accordance with Rule 12.21 of Punjab Police Rules Vol II. A constable who was found unlikely to prove efficient police officer can be discharged by the Superintendent at any time within three years of the enrollment. It is further submitted that the termination was governed by rule 5(1) of the Central Civil Services ( Temporary Service) Rules 1965. Shri V.K. Mishra. Commandant exercising the powers of the Superintendent of Police was competent to pass the order of termination under rule 12.21. of Punjab Police Rules.
(4) The appointment letter Ex. P9 mentions the plaintiff having been appointed as a constable w.e.f. 15.2.1973. The capacity in which the plaintiff was appointed is not mentioned whether he was on probation or temporary or otherwise. Punjab Police Rules contemplate the initial appointment on temporary basis. The appointment of the plaintiff would be deemed to have been made in accordance with the rules. Hence it would be temporary.
(5) The order of termination has been passed before the expiry of three years from the date of appointment i.e. before the appellant could acquire the status of permanent or quasi permanent in the service. The order of termination is an innocuous order on its face. It does not cause any stigma on the appellant. Recently, in Governing Council K.M. Institute. V. Pandurang. 1993 S.C. 392 their Lordships of the Supreme Court have held:-
"IF an employee who is on probation or holding an appointment on temporary basis is removed from the service with stigma because of some specific charge, then a plea cannot be, taken that as his service was temporary or his appointment was on probation, there was no requirement of holding any enquiry, affording such an employee an opportunity to show that the charge levelled against him is either not true or it is without any basis. But whenever 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."
"The principle of tearing of veil for finding out real nature of the order shall be applicable only in a case where the court is satisfied that there is a direct nexus between the charge so levelled and action taken. If decision is taken to terminate the service of an employees during period of probation, after taking into consideration overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment. It need not be said that the appointing authority at stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee."
"Thus in the present case the Governing Council examined different reports in respect of the probationer during period of probation and considered the question as to whether he should be allowed to continue in the service of the Institute. The decision was taken by the Governing Council on the total and overall assessment of the performance of the probationer in terms of the condition of the appointment. It cannot therefore 'be said that the order of termination amounts to removal from service as a punishment."
(6) Again in Ram Chander Tripathi Vs. U.P. Public Service Tribunal and ors. their Lordships Of The Supreme Court Have Held : "IF on consideration of such service records, the appropriate committee did not find the appellant suitable to be confirmed in service and the concerned authorities on consideration of poor service record of the appellant had come to the finding that he was not suitable to be retained in service and the impugned order was passed without any stigma and in accordance with the service rules, the same cannot be held illegal or invalid."
(7) In the opinion of this Court, the termination of the appellant's temporary service does not cast any stigma on the appellant. It was not by way of punishment. Rule 12.21 of Punjab Police Rules 1934 Vol Ii clearly provides for a constable who was found unlikely to prove an efficient police officer being discharged by the Superintendent at any time within three years of enrollment. Whatever might have been the material available on the record of the Superintendent of Police on the basis whereof he might have formed an opinion that the appellant was liable to bo discharged; that does not find any mention in the order communicated to the appellant and hence does not cast any stigma on him. It is not the case of the appellant that the respondent was not possessed of any material leading to the forming of the opinion. Had it been the case, the respondent could have put forth the material in its possession on record for consideration by the court.
(8) According to rule 12.21 of the Punjab Police Rules Vol Ii the authority is vested in District Superintendent of Police to discharge a constable without assigning any reason within the period of three years. Shri B.K. Mishra Ips holding the post of Commandant was a Superintendent of Police . He was competent to discharge the appellant. Article 311(1) of the Constitution of India provides that no person who is a member of civil service or holding a civil post shall be dies missed or removed by an authority subordinate to that by which he was appointed. A simple order of termination or discharge in accordance with the contract of service or rules governing the employment does not amount to dismissal or removal within the meaning of Article 311(1) ( See Satish C. Anand Vs. Union of India and Khem Chand Vs. Union of India ). It has already been held that the termination of the plaintiff before the expiry of a period of 'three years from the date of his appointment was a mere discharge from service and hence not a dismissal or removal. The question of deciding the legality or otherwise of the petitioner:s termination by reference to article 311(1) does not therefore, arise. Reference may be had to Union of India Vs. Jagjit Singh and Rani Chander SagarVs. Delhi Admn. 1975 (1) Slr 216 Delhi (FB). Counsel has relied on a single bench decision of Punjab & Haryana High Court in Darshan Singh Vs State of Punjab 1991 (4) Slr 102 wherein the view taken is that an appointment made by the Inspector General of Police cannot be brought to an end by an order of dismissal passed by subordinate authority. This case has no .application to the facts of the present case.
(9) The learned counsel for the plaintiff appellant has placed reliance on Shamsher Singh Vs. State of Punjab , Anoop Jaiswal Vs Govt of India 1984 (1) Slr 426 in support of his submission that even a probationer is entitled to the benefit of Article 311 of the Constitution of India. True it is. But as has already been held. Art. 311 of the Constitution is not attracted to the facts of this case.
(10) During the pendency of this appeal, on 24.9.86 the appellant filed an application under Order 6,Rule 17 Civil Procedure Code seeking amendment in the plaint. An additional para 3(a) has been sought to be added in the plaint. The appellant proposes to bring on record the fact that after termination of his service the appellant was faced with a prosecution under Sections 420, 468, 471, 182 Indian Penal Code registered as Fir No. 360/76, which prosecution has ended in acquittal of the appellant on 13.5.86. It appears that some one had lodged a complaint against the appellant with the department complaining of the appellant having secured his appointment in the police force by making a misstatement of fact. The acquittal of the appellant proves the falsity of the accusation and presumably because the appellant was discharged from service on the basis of such causation he deserves to be reinstated in the service.
(11) The amendment cannot be allowed. Firstly, it is highly belated. Permitting an amendment at the stage of second appeal would warrant pleadings afresh and fresh trial practically after a lapse of 18 years from the date of commencement of the suit. Moreover, the amendment if allowed is not going to serve any purpose. It has already been noticed in the law laid down by the Supreme Court in Pandurang's case (supra) that the Court may tear the veil of an order of termination simpliciter if only it may find that there was a charge levelled against an incumbent and that there was a direct nexus between the charge and the termination.
(12) The complaint is surd to be dated 20.1.76. The order of discharge is dated 28.1.1976. It cannot be assumed that merely on a complaint being made the Superintendent of Police a senior and responsible officer would have terminated the appellant without making any preliminary enquiry for his own satisfaction. The order does nut reflect the appellant having been terminated on the basis of any such complaint. Cm 1181/86 (under 0.6 Rule 17 CPC) is rejected.
(13) For the foregoing reasons the appeal is held to be devoid of any merit and is liable to be dismissed. It is dismissed accordingly. The judgments and decrees of the Courts below are affirmed. Looking to the nature of the litigation the parties are left to bear their own costs throughout. Counsel's fee Rs.2000.00 .