Andhra HC (Pre-Telangana)
K. Sudershan, Police Constable vs Director General And Inspector General ... on 31 January, 2002
Equivalent citations: 2002(3)ALT256
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER B. Sudershan Reddy, J.
1. The 3rd respondent-Superintendent of Police, Karimnagar by his order dated 16-7-1992 terminated the probation of the petitioner herein with effect from 15-7-1992 with one month pay under Rule 24 (a)(ii) of A.P. State and Subordinate Services Rules (for short "the Rules'). Since the whole controversy centres around some expressions used in the said proceedings, we consider it appropriate to refer the whole of the order before we further proceed in the matter and the same is to the following effect:
"NoA1/93/1056/89-92 District Police Office, D.O. No. 1536/92 Karimnagar, Dt. 16-7-92 District Orders:
The probation of P.C. 2045 K. Sudershan of P.S. Keshavapatnam was last extended for a period of six months w.e.f. 25-8-1991 vide D.O. No. 2355/91 dt.19-11-1991 for his unsatisfactory work during the probation period. While extending the probation of P.C. he was advised to improve his work in his own interest, but he has not shown any improvement in his work. The CI and DSP have remarked that he has not improved.
In view of his unsatisfactory work, the probation of PC.2045 K. Sudershan is terminated w.e.f. 15-7-1992 with one month's pay under Genl. Rule 24 (a)(ii) of A.P. State and Subordinate Services Rules.
Sd/- Supdt. of Police."
2. The petitioner being aggrieved by the said order preferred an appeal before the Deputy Inspector General of Police, Karimnagar, and the appellate authority dismissed the said appeal by order dated 8-9-1992. Thereafter the petitioner preferred a revision before the Inspector General of Police (Administration), Andhra Pradesh and the Revisional Authority confirmed the order passed by the appellate authority vide order dated 14-12-1993 observing that the petitioner did not make any improvement in performance of his duties in spite of being punished for his unauthorized absence earlier. The Revisional authority accordingly upheld the orders of termination of the probation of the petitioner.
3. The petitioner challenged the said order in O.A. No. 4603/1995.
4. It is required to notice that the petitioner herein was appointed as Police Constable in Karimnagar in July, 1989. He was put on probation for a period of two years on duty within a continuous period of three years vide proceedings dated 16-7-1989. As he was absent for a period of 49 days during the period of his probation, disciplinary proceedings were accordingly initiated against him resulting in award of punishment of postponement of increment for a period two years with effect on future increments and pension vide proceedings dated 16-10-1991,
5. The petitioner was again absent from duty without prior permission from 22-4-1991 to 23-4-1991 and the said period was treated as leave without pay and accordingly he was awarded punishment of censure.
6. After expiry of his period of probation, the competent authority extended his probation for a period of six months vide proceedings dated 19-11-1991. The petitioner availed 60 days leave from 15-7-1991 to 14-9-1991.
7. Having regard to the totality of the facts and circumstances, the Superintendent of Police, Karimnagar, vide his order dated 16-7-1992 terminated the probation of the petitioner under Rule 24 (a)(ii) of the Rules w.e.f. 15-7-1.992 for his unsatisfactory work. We have already referred to the appeal and revision preferred by the petitioner and the orders passed by the authorities.
8. In the Original Application before the Tribunal it was contended on behalf of the petitioner that the competent authority ought not to have terminated the probation of the petitioner. It is the case of the petitioner that there are no adverse remarks against him during the period of his extended probation. The Superintendent of Police without obtaining any report from the Inspector concerned with regard to his performance during the period of extended probation and relying on some reports submitted by the Circle Inspector, Huzurabad and Deputy Superintendent of Police, Karimanagar, terminated the probation of the petitioner. The main thrust of the case is that the order passed by the competent authority is punitive in its nature. The Tribunal rejected the said contention and accordingly dismissed the Original Application.
9. In this Writ Petition, the learned counsel for the petitioner, Sri K. Anantha Rao, reiterates the submissions made for and on behalf of the petitioner, before the Administrative Tribunal. The learned counsel for the petitioner would contend that the impugned order passed by the Superintendent of Police is punitive in its nature. It is not an order of termination simpliciter of probation as such. Reliance is placed on the expression used in the impugned order to the effect "unsatisfactory". The expression used in the impugned order "unsatisfactory work" would indicate that it is not a termination simpliciter of probation but termination of service on the ground of misconduct. Such termination, according to the learned counsel for the petitioner, would operate as a stigma.
10. The learned counsel would place reliance upon a judgment of the Supreme Court in Krishnadevaraya Education Trust v. L.A. Balakrishna, wherein it is observed:
"Normally services of an employee on probation would be terminated, when he is found not be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.
If such an order is challenged, the employer will have to indicate for which ground the services of the probationer were terminated. 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 being terminated by way of punishment."
11. We fail to appreciate as to how the said judgment would support or advance the case of the petitioner.
12. Be that as it may, the Supreme Court in Pavanendra Narayan Verma v. Sanjay Gandhi P.C.I, of Medical Sciences, 2001 (8) Supreme 409 after referring to various judgments on the subject, including the judgment in Krishnadevaraya Education Trust (1 supra) observed that whenever a probationer challenges his termination, the court's first task will be to apply the test of 'stigma' or the 'form' test. If the order survives this examination, the 'substance' will have to be found out. The Supreme Court further observed that 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. It is held that in order to amount to stigma, the order must be in a language, which imputes something over and above mere unsuitability. The Supreme Court relying upon the decision in State of Orissa v. Ramnarayan Das, observed that use of the word "unsatisfactory work and conduct" in the termination order will not amount to a stigma".
13. It is therefore clear that mere use of expression "unsatisfactory work and conduct" in the termination order itself will not amount to a stigma. A similar order, as the one on hand, was upheld by the Supreme Court in Pavanendra Narayan Verma.
14. The learned counsel for the petitioner would, however, rely upon several averments in the counter-affidavit filed by the respondent in order to satisfy this court that those averments reveal that the competent authority passed the impugned order as a measure of punishment. In the very same judgment in Pavanendra Narayan Verma (2 supra) it is observed by the Supreme Court that averments in the affidavit cannot be relied on to improve or supplement the order as held by a Constitution Bench in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, that an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order.
15. Therefore, we are not impressed by the submission of the learned counsil for the petitioner that the averments made in the counter-affidavit themselves would reveal that the impugned order has been passed as a measure of punishment. The impugned order has to stand or fall on its own.
16. It is further contended by the learned counsel for the petitioner that as required under the service Rules, no salary in lieu of one month's notice has been paid to the petitioner. The impugned order itself reveals that the petitioner's probation has been terminated w.e.f. 15-7-1992 with one month's pay. At any rate, nothing turns upon the said fact.
17. There is absolutely no justification on the part of the petitioner to contend that the Tribunal failed to consider the contention that no opportunity of being heard as such was given to him by the revisional authority. Obviously, no such contention appears to have been advanced during the course of hearing of the arguments before the Tribunal.
18. We are not inclined to direct the Government to dispose of the representation filed by the petitioner at this stage as the order of termination of probation passed by the competent authority as confirmed in the appeal and revision does not suffer from any infirmity.
19. For all these aforesaid reasons, we do not find any merit in this Writ Petition. The same shall accordingly stand dismissed at the admission stage.