Punjab-Haryana High Court
Ex-Constable Rajinder Kumar vs State Of Haryana And Ors. on 20 September, 2001
JUDGMENT G.S. Singhvi, J.
1. This appeal is directed against order dated July 23, 1992 vide which the learned Single Judge dismissed Civil Writ Petition No.18648 of 1991 filed by the appellant for quashing order dated 24.10.1991 passed by the Superintendent of Police, Bhiwani (respondent No.3) under Rule 12.21 of the Punjab Police Rules 1934 (for short, the Rules'), as applicable to the State of Haryana.
2. The appellant was recruited as Constable on 2.12.1988. A departmental enquiry was held against him in the year 1990. On receipt of enquiry report, respondent No.3 issued notice dated 12.9.1991 vide which he called upon the appellant to show-cause against his proposed dismissal from service. After nine days, the said respondent served another notice upon the appellant requiring him to appear for personal hearing on 24.10.1991 and on that very day, he passed order of discharge under Rule 12.21 of the Rules.
3. The appellant challenged the order of discharge in Civil Writ Petition No. 18648 of 1991 mainly on the ground that it was punitive in character and respondent Nos. 3 could not have indirectly dismissed him from service without holding enquiry in accordance with the Rules and without complying with the provisions of Article 311 of the Constitution of India.
4. In their written statement, the respondents did not controvert the fact that respondent No. 3 had issued notice dated 12.9.1991 proposing the appellant's dismissal from service, but his service was terminated by way of discharge under Rule 12.21 of the Rules. According to them, this was done keeping in view the various acts of misconduct committed by the appellant.
5. The leaned Single Judge dismissed the writ petition by holding that respondent No.3 could legitimately exercise power under Rule 12.21 of the Rules and the enquiry got conducted by him was really not necessary.
6. Shri Satbir Godara referred to the show cause notice dated 12.9.1991 and notice dated 21.10.1991 issued by respondent No.3 and argued that even though, order dated 24.10.1991 does not contain express words casting stigma on the appellant, the same should be treated as punitive because it was based on the finding of guilt recorded by the Enquiry Officer. He further argued that the learned Single Judge has committed a serious illegality by upholding order dated 24.10.1991 on the premise that it did not contain any indication of punishment.
7. Learned Deputy Advocate General supported the impugned order and argued that even though, the order passed by respondent No.3 was preceded by two notices, the same cannot be treated as an order of punishment because the real purpose of those notices was to examine the suitability of the appellant to be retained in service.
8. We have given serious tought to the respect arguments and have carefully gone through the record.
9. Motive or foundation - these words have always troubled the Courts while dealing with cases of discharge simpliciter or termination of services by innocuous order preceded by some or other enquiry into the allegations of misconduct. There are number of judicial precedents on the subject which started with Parshotam La! Dhingra v. Union of India, AIR 1958 SC 36 and followed by State of Bihar v. Gopi Kishore Prasad, AIR 1960 689: State of Orissa v. Ram Narayan Dsss, A.I.R. 1961 S.C. 177; Ranendhra Chandra Banerjee v. The Union of India and Anr., AIR 1963 SC 1552; Jagdish Mitter v. The Union of India, AIR 1964 SC 449; Moti Ram Deka v. General Manager, North East Frontier Railway, AIR 1964 SC 600; Madan Gopal v. The State of Punjab and Ors. AIR 1963 SC 531, Champaklal Chimanlal Shah v. The Union of India, AIR 1964 SC 1854; State of Punjab and Anr. v. Sukh Raj Bhahadur, AIR 1968 SC 1089; Union of India v. R. S. Dhaba, (1969)3 SCC 603; State of Bihar v. Shiva Bhikshuk Mishra, (1970) 3 SCC 871. These precedents were considered by a 7- Judges Bench in Shamsher Singh v. Stale of Punjab, AIR 1974 SC 2192 and it was held that the form of order is not decisive and in appropriate case, the Court can look into the attending circumstances to find out whether it is founded on the allegation of misconduct. In a recent decision in Chandra Prakash Shahi v. State of U.P. and Ors., (2000)5 SCC 152, a Division Bench of the Supreme Court reviewed various judicial precedents including those referred to above and held as under:-
"Important principles which are duducible on the concept of "motive' and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of probation on account of general unsuitability for the post in question. If for determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his services, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the services is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against him. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".
"Motive" is the moving power which impels action for a definite result, or to put it differently, "Motive" is that which incites or stimulates a person to do an act. An order terminating services of an employee is an act done by the employer. What is that factor which impelled the employer to take this decision? if it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry."
10. In the light of the proposition laid down in the aforementioned decisions, we shall now consider whether order dated 24.10.1991 was punitive in character and the learned Single Judge had erred in upholding the same. For the purpose of determining the true nature of order dated 24.10.1991, it will be useful to notice the contents of notices dated 12.9.1991 and 21.10.1991 and order dated 24.10.1991. The same are reproduced below :-
"SHOW CAUSE NOTICE The Enquiry Officer appointed to enquire into the charges levelled against you by the then Supdt. of Police, Sirsa vide his order No.17886-90 dated 21.12.90, has submitted his report. A copy of the report is enclosed for your information.
2. On a careful consideration of the report of the enquiry officer, I fully agree with the conclusions reached by him in respect of the charges levelled against you and hold that these charges stand proved. Your past service record also shows that at previous occasions you were awarded the folowing punishments:-
i) Four years annual increments stopped with temporary effect for absenting himself from duty for 15 days from 20.4.90 to 5.5.90 (OS No.272/90).
ii) Four years annual increments stopped with permanent effect for absenting himself from 8.5.90 to 14.5.90 and 26.5.90 to 7.6.90 (OS No.272/90).
iii) Awarded censure for absence vide (OS No.288/90).
iv) Two future annual increments stopped with permanent effect vide order dated 6.9.91 (OS No.301/91) for absence of duty from 8 days 17 hours and 50 minutes twice.
3. Thus I feel that the above mentioned previous punishments have not improved your conduct. I am provisionally of the opinion that a penalty of dismissal from the police service should be imposed on you. Before I take that action. I desire to give you an opportunity to submit your reply. Any representation, which you like to make in this connection will be considered by me before the proposed action of dismissal from police service is taken against you, such representation, if you, should be made in writing and submitted to me so as to reach not later than 15 days from the receipt of this communication by you.
Sd/-
Supdt. of Police, Bhiwani Dated: 12.9.91.
Const. Rajinder Singh, No.l016/SRS(914/BWN), xx xx xx xx xx NOTICE DATED 21.10.1991.
Office of the Superintendent of Police, Bhiwani.
Sewa No.. 772/St. Dated 21.10.91.
In connection with Show Cause Notice issued by this Office on 12.9.91.
You were given above said show cause notice dated 19.9.91 in the departmental enquiry against you for dismissing from service. You had to give the reply within 15 days of its receipt. But you have not given any reply of the above notice while more than one month's time have expired. Now you are absent again. You are hereby ordered that you give your written reply to me in this office on 24.10.91 at 9 A.M. In addition to that you present yourself before me on 24.10.91 at 9 A.M., so that you could be heard personally.
If your reply is not received till the above mentioned date and/or you do not appear before me for personal hearing on the above mentioned date, this will be persumed that you have noting to say in this matter and further proceeding will be taken in this matter.
Constable Rajinder Singh 934, S/o Sh. Hari Singh Caste Jat, r/o Sarkhi P.S. Sadar, Hansi, Distt. Hissar.
Sd/-
Superintendent of Police Bhiwani.
xx xx xx xx xx xx ORDER Constable Rajinder Singh No.934/BWN/ is unlikely to prove an efficient Police Officer, hence he is discharged from the force under Punjab Police Rules, 12.21 as applicable to State of Haryana with effect from 24.10.1991 A.N. 14242-46 Issue Order in O.B. 25.10.1991 Sd/-
Supenntendent of Police, Bhiwani 24.10.91.
OB/CRC/Aeett/CHC/ to Bhiwani."
11. The learned Single Judge upheld the termination of the appellant's service by observing thai it was a case of discharge simplicitor and the enquiry got conducted by respondent No.3 was really not necessary. With respect, we are unable to agree with the learned Single Judge because while declaring that order dated 24.10.1991 was simplicitor, he over-looked the stark fact that before passing that order in the purported exercise of power under Rule 12.21, respondent No.3 had not only got an enquiry conducted into the specific allegation of misconduct levelled against the appellant, but had also issued notice proposing his dismissal. This, in our opinion, should have been sufficient to draw an inference that even though the order passed by respondent No.3 was innocuous, in reality it was a case of termination of service by way of punishment.
12. A conjoint reading of notice dated 21.10.1991 and order dated 24.10.1991 shows that respondent No.3 had, after going through the enquiry report, formed a definite opinion that the appellant was guilty of misconduct and he deserved to be dismissed from service. He took two steps in that direction. In the first instance, he issued notice to the appellant to show cause as to why he may not be dismissed from service. Thereafter, he issued notice for personal hearing. However, instead of taking the matter to its logical conclusion, respondent No. 3 adopted the easier course by passing the order of discharge simplicitor under Rule 12.21. In our opinion, even though the language of order dated 24.10.1991 does not contain anything from which it can be inferred that the service of the appellant was terminated by way of punishment, if the same is read in the background of the events which immediately preceded, i.e., holding of enquiry, issuance of show cause notice, proposing dismissal from service and notice of personal hearing, there is remains no doubt that respondent No.3 had punished him Tor proved acts of misconduct. Therefore, keeping in view the law laid down by the Supreme Court in Shamsher Singh v. Stats of Punjab (supra), Anoop Jaiswal v. Government of India and Anr., AIR 1984 S.C. 636 14 and Chandra Prakash Shahi v. State of U.P. and Ors. (supra), we hold that the order dated 24.10.1991 is punitive in character and the same is liable to be quashed on the ground of non-compliance of the procedure prescribed under Rule 16.2 of the Rules and Article 311 of the Constitution of India.
13. For the reasons mentioned above, the appeal is allowed. The order of the learned Single Judge is set aside. As a consequence, the writ petition filed by the appellant is al lowed. He shall be reinstated in service. However, liberty is given to the competent authority to pass fresh order after complying with the principles of natural justice and relevant statutory provisions. The appellant shall be entitled to the benefit of continuity of service. As regard the back wages, we direct that appellant shall be entitled to receive the same on his producing satisfactory proof before the competent authority that he was not gainfully employed/engaged during the intervening period. If he has been engaged in agricultural operation and earning his livelihood from it, then too, he shall not be en titled to full back wages.