Madhya Pradesh High Court
The State Of Madhya Pradesh vs Sanjeev Singh on 20 March, 2019
THE HIGH COURT OF MADHYA PRADESH
WA.1866.2018
[ The State of M.P. & Ors. Vs. Sanjeev Singh]
1
Gwalior, Dated:- 20.03.2019
Shri Pratip Visoriya, learned Government Advocate, for
appellants/State.
Shri MPS Raghuvanshi, learned counsel for respondent.
With the consent of learned counsel for the parties, the matter is finally heard.
The State of Madhya Pradesh and its functionaries, aggrieved of the order dated 23/08/2018 passed in Writ Petition No.1395/2015 have filed this appeal under Section 2(1) of Madhya Pradesh Uchcha Nayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005.
The Writ Petition was directed against the order dated 27.02.2015; whereby, the services of the respondent, a probationer, were dispensed with during probation.
The order dated 27/02/2015 was challenged on the ground that the services were dispensed with without holding an enquiry. It was urged that the order dispensing service being stigmatic, imperative it was for the Competent Authority to hold enquiry.
Learned Single Judge dwelling on the stand taken in the return filed by the State; wherein, it was stated that during probation the petitioner remained absent without intimation; wherefor, punishment of censure was imposed and inspite thereof he showed no improvement. It was also stated that the petitioner though did not meet THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 2 the physical parameters laid down for appointment, and was found of having medical certificate by resorting corrupt practices, held:
"A bare perusal of the impugned orders reflects that petitioners have been terminated on the ground that their services were no longer required with a further observation that there is no possibility of them becoming good Police Officers in near future. The said order is not termination simplicitor but clearly stigmatic in nature and the same may come in the way of their future prospects. Admittedly no departmental enquiry has been conducted. Had the impugned orders been termination simplicitor without any stigma, the same would have not been any hurdle for the petitioners in other walks of life. Further, termination of services of probationers, where misconduct is alleged is permissible only when departmental enquiry is held with regard to the alleged misconduct. In this regard, the observations of this Court in the case of Hemendra Singh (Supra) are worth reproducing. The same read thus:-
"10. When these tests are applied in the case at hand it is clear from paragraph 4 of each of the order under challenge that the events in the past wherein the petitioners were visited with the show cause notice or even punished has been prime consideration (and non- passing of examination is secondary) while adjudging the suitability of these officers which cast the stigma affecting the future prospects. The termination of service of probationer in such cases is permissible only when departmental enquiry is held in the allegation and decision is taken after affording an opportunity of hearing.
In view of the aforesaid, the impugned orders of termination are hereby quashed. Petitioners are directed to be re-instated in services without any back wages. However, respondents are always at liberty to hold a departmental enquiry with regard to the alleged misconduct and pass appropriate orders, after affording due opportunity to the petitioners in accordance with law."
The challenge is on the ground that learned Single Judge THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 3 glossed over the vital fact that mere expression in the dispensation order that a person will not make a good employee is not stigmatic. It is urged that merely because certain instances are quoted in the return to substantiate as to why the incumbent will not be a good employee in future will not vitiate the order of dispensing him from service during probation. It is further contended that the physical eligibility criteria for appointment as Constable is that an incumbent should not be less than 168 cm with the chest measurement 81 cm (+5 after expanding); whereas, the petitioner was found having chest measurement of 85 cm. The reliance is placed on the finding of the Divisional Medical Board and Divisional Joint Director Health Services dated 27.08.2014. It is urged that the said finding was part of return which learned Single Judge glossed over. It is urged that because of said shortcomings, in the height and chest, which was less than the statutory eligibility criteria, the Competent Authority was well within its competency to adjudge that the incumbent will not make a good officer, which, it is urged, is not stigmatic. It is urged that the petitioner being a probationer had no right to hold a post and the continuation thereon as a probationer was subject to the satisfaction of the employer. It is urged that having remained absent unauthorizedly from 10.12.2013 to 12.12.2013, 17.12.2013 to 19.12.2013, 23.12.2013 to 24.12.2013, on 29.12.2013, from THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 4 06.01.2014 to 16.01.2014, 31.01.2014 to 04.02.2014, 24.03.2014 to 04.04.2014, 07.05.2014 to 10.06.2014, 07.11.2014 to 10.11.2014, 26.12.2014 to 17.01.2015 and 28.01.2015 to 26.02.2015; coupled with the fact that the petitioner was ineligible for appointment from very inception, the Competent Authority was well within his competence to dispense with the service.
The petitioner (respondent herein) supports the order. It is urged that the Writ Court was well within its jurisdiction in lifting the veil by taking into consideration the stand taken in the return filed by the State to ascertain the foundation. Placing reliance on the decisions in "Pandurang Dattatraya Khandekar Vs. The Bar Council of Maharashtra, Bombay and others [AIR 1984 SC 110]"; "Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre For Basic Sciences, Calcutta And Others [(1999) 3 SCC 60]"; "State Bank of India and Others Vs. Palak Modi and another [(2013) 3 SCC 607]"; "Hemendra Singh Chouhan Vs. State of M.P. and another [2016(1) MPLJ 211]"; it is urged that since the impugned order dispensing with the service of the petitioner during probation was found to be stigmatic, learned Single Judge did not commit any error in setting aside the order of termination.
Considered the rival submissions.
The order dispensing the petitioner from service is in the THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 5 following terms:
@@dk;kZy; lsukuh 18oha okfguh folcy f'koiqjh ¼e0iz0½@@ OBNo 157 %&vkns'k&% Dt.@27@02@15 Jh latho flag iq= Jh uanfd'kksj] fuoklh edku ua0&125 dSyk'k uxj] lsejkdyka] Fkkuk v'kksdk xkMZu] ftyk Hkksiky e0iz0 dks bdkbZ dk;kZy; ds fu;qfDr vkns'k Ø0& 18 oha cVk-@folcy@LFkk-@4794@13 fnukad 21-10-13 ds }kjk vkj{kd ¼th0Mh0½ ds in ij vken fnukad ls fu;qfDr iznku dh x;h FkhA mDr uo vkj{kd dh iqfyl foHkkx ¼fo-l-cy½ esa vko';drk u gksus ,oa fudV Hkfo"; esa ,d vPNs iqfyl vf/kdkjh cuus dh laHkkouk ugha gksus ds dkj.k budh lsok,W rRdky izHkko ls lekIr djrs gq, bUgsa ^lsokeqDr^ fd;k tkrk gSA gLrk-@& lq/khj Ogh- ykWM Hkk-iq-ls-
lsukuh 18oh okfguh folcy f'koiqjh e0iz0 Evidently, by order dated 21.10.2013 the petitioner was appointed on probation as Constable (GD) on the following terms and conditions:
1- e0iz0 'kklu ds 'kkldh; lsok ¼vLFkkbZ rFkk v/kZ vLFkkbZ½ lsok fu;e 1960 ds mi fu;e 12 ds vuqlkj vH;kFkhZ dh lsok fdlh Hkh le; mHk; i{kksa ds }kjk ,d ekg dk uksfVl nsdj ;k mldh ,ot esa ,d ekg dk osru HkRrs dk Hkqxrku djus ij dHkh Hkh lekIr dh tk ldsxhA 2- ;g fu;qfDr iw.kZ :Ik ls vLFkkbZ gS] dk;Z larks"ktud u ik;s tkus vFkok 'kkldh; lsok ij mi;ZqDr u ik;s tkus ij lsok;sa dHkh Hkh fcuk uksfVl ds lekIRk dh tk ldrh gSA 3- ;fn vH;kFkhZ }kjk 'krZ Øekad 01 dk ikyu u djrs gq;s 'kkldh; lsok NksMh tkrh gS rks mDr 'krksZ ds vUrxZr vH;kFkhZ dks ns; jde dh olwyh Hkw&jkTkLo cdk;k jkf'k dh Hkkafr dh tkosxhA THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 6 4- ;fn vH;kFkhZ }kjk izLrqr nLrkostks ¼vadlwph½ vkfn esa dksbZ =qfV ;k voS/krk ik;h tkrh gS rks vH;kFkhZ dh lsok;sa rRdky izHkko ls lekIr le>h tkosxhA 5- ;fn vH;kFkhZ dk fookg e0iz0 'kklu ds vkns'k Øekad 134 Hkksiky fnukad 10-03-2000 eas fn;s x;s Ikzko/kkuks ds vUrxZr mldh vk;q iq:"k gsrq 21 o"kZ ,oa efgyk gsrq 18 o"kZ ds iwoZ gksuk izekf.kr ik;k tkrk gS ;k fookg mijkar vH;kFkhZ ds nks ls vf/kd thfor cPPks gksus dk izek.k feyrk gS ftuesa 01 dk tUe 26-1- 2001 ;k mlds i'Pkkr~ gks rks fu;qfDr dk ik= ugha gksxk mldh lsok;sa lekIRk le>h tkosxha rFkk vkosnu i= esa vlR; tkudkjh izLrqr djus ds fy;s mlds fo:) oS/kkfud dk;Zokgh Hkh dh tkosxhA 6- e0iz0 'kklu ds i= Øekad@,Q@10@3@2006@1@9@Hkksiky fnukad 6-2-2006 ds izko/kkukuqlkj vH;kFkhZ dks dEI;wVj dk Kku izkIr djuk vfuok;Z gksxkA 7- fn0 1-1-2005 vFkok blds ckn fu;qfDr gksus okys deZpkjh dks ifjHkkf"kr va'knku ias'ku ;kstuk 'kklu vkns'k Øekad@,Q@9@3@2003@fu;e@4@Hkksiky fnukad 13-4-05 }kjk ykxw gksxhA^^ The appointment as per Madhya Pradesh Police Regulations 59 was on probation. Regulation 59 mandates that every recruit will be on probation for two years' which may be in two periods of six months each, if the Superintendent considers it desirable. During this probationary period his services may be dispensed with at any time, if, in the opinion of the Superintendent, he is unlikely to become a satisfactory police officer.
In "Ajit Singh & Others etc., vs State Of Punjab & Another [AIR 1983 SC 494]", while observing that in order that an incompetent or inefficient servant is not foisted upon an employer because the charge of incompetency and inefficiency is easy to make but difficult to prove, concept of probation was devised, it was held by their Lordships:
THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 7 "7. ........To guard against errors of human judgment in selecting suitable personnel for service, the new recruit was put on test for a period before he is absorbed in service or gets a right to take post. Period of probation gave a sort of locus poenitentiae to the employer to observe the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserved 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."
In "Parshotam Lal Dhingra vs Union Of India [AIR 1958 SC 36]", the concept has been enunciated in these words:
"11. .......An appointment to a permanent post in Government service on probation means, as in the case of a person appointed by a private employer, that the servant so appointed is taken on trial. The period of probation may in some cases be for a fixed period, e.g., for six months or for one year or it may be expressed simply as "on probation" without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a notice. ....."
It is held in "State of Punjab and others vs. Sukhwinder Singh [(2005) 5 SCC 569]" that a probationer does not acquire any substantive right to the post:
"19. 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 THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 8 his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong.
20. 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 a 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 THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 9 observed in Ajit Singh v. State Of Punjab [AIR 1983 SC 494] 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."
Thus, the petitioner being a probationer had no substantive right to continue on the post of Constable.
The question is whether the impugned order whereby the services of the petitioner were dispensed with can be said to be stigmatic. The order as evident therefrom finds an opinion formulated by the Competent Authority that the petitioner will not make a good officer. This formulation of opinion is in precise consonance with Police Regulation 59. And merely because there is a description of background, not in the order, but in a reply filed to the Writ Petition, it cannot, in our considered opinion, be held to be the foundation.
In "State of U.P. And others Vs. Ram Bachan Tripathi [(2005) 6 SCC 496]", it is held:
"6. We shall first examine the plea relating to the stigma. Usually a stigma is understood to be something that is detraction from the character or reputation of a person. It is a blemish, imputation, a mark or label indicating a deviation THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 10 from a norm.
7. Mere description of a background fact cannot be called a stigma. In the termination order it was merely stated that the show-cause notices were issued and there was no response. This can by no stretch of imagination be treated as a stigma as observed by the Tribunal and the High Court."
In "Rajesh Kumar Srivastava Vs. State of Jharkhand and others [(2011) 4 SCC 447]", it is held:
"9. The records placed before us disclose that at the time when the impugned order was passed, the appellant was working as a Probationer Munsif. A person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation in service. There are various criteria for adjudging suitability of a person to hold the post on permanent basis and by way of confirmation. At that stage and during the period of probation the action and activities of the probationer (appellant) are generally under scrutiny and on the basis of his overall performance a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. In the present case, in the course of adjudging such suitability it was found by the respondents that the performance of the appellant was not satisfactory and therefore he was not suitable for the job.
10 The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither is any notice required to be given to the appellant nor is he required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not."
THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 11 A Division Bench of this Court in Writ Petition 119/2017 [Vivek Sharma Vs. State of M.P. and others] held:
"On the basis of a complaint of irregularities in the conduct of test leading to the appointment of Petitioner, the Special Task Force constituted by the State lodged a report bearing Crime No.2/2015 against the petitioner. The petitioner was arrested, but released on bail on 10th of April, 2015. On 02nd of January, 2015, the services of the petitioner were terminated. The said termination order is the subject matter of challenge in the present writ petition. The petitioner has challenged the said termination order inter-alia on the ground that the said order has been passed without giving an opportunity of hearing and without conduct of any inquiry.
In the return, the stand of the State is that in terms of instructions issued in terms of the Madhya Pradesh (Classification, Control and Appeal) Rules, 1966, the appointing authority can terminate the services of an employee without any inquiry. The State also relies upon a communication made by the Central Bureau of Investigation pointing out that the petitioner has been charge sheeted for the offence under Sections 417, 419, 420, 467, 468, 471 & 120-B of IPC and Sections 3 (d)(1) & 2/4 of the Madhya Pradesh Recognized Examination Act for his selection in the written test of PCRT - 2012 with the help of racketeers/middlemen/impersonators. Still further, the Central Bureau of Investigation is investigating the matter. The short question is that whether the services of the petitioner who was on probation could be terminated without conduct of any inquiry?
The order of termination has been passed within two years of appointment i.e. on 02.01.2015. The order is simpliciter without giving any reason of termination. Therefore, the said order is not stigmatic though the pendency of criminal case might be the background, which led to the order of termination. The order of termination has been passed during probation and in terms of the instructions issued in the year 1966 in respect of temporary employees. The termination in this manner has not affected any right of the petitioner."
Similarly in WA.220/2017 [State of M.P. & Ors. Vs. Krishna Kumar Yadav), another Division Bench held:
THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 12 "6. Before concluding, it would be appropriate to deal with the decision of Apex Court relied upon by the petitioner in the case of SBI Vs. Palak Modi reported in (2013) 3 SCC 607.
In this case, the Apex Court after considering various earlier decisions since Purushottam Lal Dhingra Vs. Union of India reported in AIR 1958 SC 36 summarized its view in para 25 which is reproduced below for convenience and ready reference:
25. The ratio of the abovenoted judgments is that a probationer has no right to hold the postand his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is that basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive.
However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice. 6.1. The ratio laid down in the above case reveals that when the order of termination of a probationer is assailed on the ground of being stigmatic and having been passed without following the principle of audi alteram partem, the Court is required to judge as to whether the decision of termination/discharge of probationer is due to his general unsuitability to hold the post or because of some misconduct. The said inquiry needs to be conducted, first by looking at the terminology used in the termination order which if found to be simplicitor and innocuous, the Court can if grounds are made out, pierce the veil and reach behind the order to ascertain the real cause of termination. However, the said exercise of piercing the veil for reaching the real cause of termination is subject to the averments made in the response given by the employer to the challenge to termination/discharge. 6.2. In the present case, the impugned termination Annexure P-1 is innocuously worded as it merely assigns the reasons of services of the petitioner probationer being no more required. While challenging this order of termination the respondent in W.P.4602/16 mainly relied upon the findings recorded by the Division Bench of this Court disposing of W.P.No.1135/2015 THE HIGH COURT OF MADHYA PRADESH WA.1866.2018 [ The State of M.P. & Ors. Vs. Sanjeev Singh] 13 on 05.08.2015 vide Annexure P-5, that the order of termination in the first round which was passed on 27.02.2015 was stigmatic in nature. The court thus interfered with the order and set it aside by giving liberty to the employer to pass fresh order in accordance with law. This obviously means that in the earlier round of litigation, the Court found the earlier impugned termination order dated 27.02.2015 to be stigmatic as it was worded in stigmatic terms and therefore the Court rightly came to the conclusion that it was a simplicitor order of discharge of respondent probationer finding him to be unsuitable for further retention in service. 6.3 The earlier order of termination of service dated 27.02.2015 was quashed whereafter fresh order was passed on 15.09.2015 which is the subject matter of challenge herein. This fresh order of termination also does not cast any stigma as it merely assigns the reason of services of respondent probationer being no more required and therefore ostensibly the same appears to be passed by the appointing authority after being satisfied that the respondent probationer is unlikely to become a satisfactory police officer.
6.4 XX XX XX 6.5 XX XX XX
7. In view of the above, this ratio laid down by the Apex Court in the case of Palak Modi (supra) instead of supporting the petitioner supports the case of the State. When the impugned order passed in Writ Petition No. 1395/2015 is tested on the anvil of above analysis, it cannot be given the stamp of approval. Consequently, it is set aside. The order dated 27/02/2015 stands revived.
Appeal is allowed to the extent above. No costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pd
PAWAN
DHARKAR
2019.04.03
11:36:23
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