Allahabad High Court
Sita Devi Sharma vs State Of U.P. And Ors. on 23 July, 2002
Equivalent citations: 2002(4)AWC2857, [2002(94)FLR1219], (2002)3UPLBEC2554
Author: S.N. Srivastava
Bench: S.N. Srivastava
JUDGMENT Sudhir Narain, J.
1. The petitioner seeks to quash the impugned order dated 1.1.1979 (Annexure-1 to the writ petition) passed by the Superintendent of Police, Shahjahanpur, respondent No. 2, terminating her services.
2. The version of the petitioner is that she was recruited as a Lady Constable on 12.11.1974 on temporary basis but against a clear vacancy, Her aunt, Smt. Kutuma Devi, was holding a gun licence which was cancelled by the District Magistrate, Shahjahanpur but Smt. Kutuma Devi got the impression that her licence was cancelled on the complaint made by the petitioner against her because there was a family dispute in their family and the petitioner being a lady constable could influence the authority to get her licence cancelled. Smt. Kutuma Devi is alleged to have made a complaint to the superior officers of the police department against the petitioner and on her complaint, one Shri Jitendra Kumar, A.S.P., was appointed as the enquiry officer who took statements of Smt. Kutuma Devi and her servant. The enquiry officer submitted the report to the Superintendent of Police, Shahjahanpur and on the basis of such report, he terminated the services of the petitioner by the impugned "order.
3. The petitioner filed a petition before the U. P. Public Services Tribunal, Lucknow against the order of termination. The respondent Nos. 1 and 2 filed written statements before respondent No. 3 and it was denied that the services of the petitioner were terminated on the basis of the enquiry report against her. She was a temporary recruit and after considering her conduct, the Superintendent of Police, Shahjahanpur terminated her services. The Tribunal found that the petitioner was appointed on temporary basis and she had no right to the post. The Tribunal further found that the order of termination was simplicitor and was not passed by way of punishment and dismissed the claim petition by order dated 5.10.1981. The petitioner has challenged these orders in the present writ petition.
4. We have heard Shri V.B. Upadhyaya, learned counsel for the petitioner, and Shri Sanjay Goswami, learned standing counsel for the respondents.
5. There are two basic questions in the present writ petition. Firstly, whether the petitioner was recruited on probation after due selection on clear vacancy or she was a temporary recruit and the second question is whether the order of termination is simplicitor or it is by way of punishment?
6. The appointment to the post of constable is governed by Para Nos. 396, 409 and 415 of the U. P. Police Services Regulations (hereinafter referred to as the Regulations). Para 409 provides that enlistment of constables for the armed and civil police will be made by Superintendents of Police and no man who is less than 18 and more than 23 years old may be enlisted or re-enlisted. Paras 411 and 415 of the regulations prescribe the qualifications for recruitment as a constable in the police service. Those who are enlisted as constable they are required to obtain training as provided under Para 539 which provides that recruits both for civil and for armed police will be trained at such places and in such manner as the Inspector General may determine and on conclusion of the training will undergo such tests as Inspector General may prescribe. Para 541 provides that the recruit will be placed on probation from the date he begins to officiate on clear vacancy. The period of probation will be two years. Para 541 reads as under :
"541. (1) A recruit will be on probation from the date he begins to officiate in a clear vacancy. The period of probation will be two years except in the following cases :
(a) those recruited directly in the Criminal Investigation Department or District Intelligence Staff will be on probation for three years, and
(b) those transferred to the mounted police will be governed by the directions in paragraph 84 of the police regulations.
If at the end of the period of probation, conduct and work have been satisfactory and the recruit has been approved by the Deputy Inspector General of Police for service in the force, the Superintendent of Police will confirm him in his appointment.
(2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his service. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge.
(3) Every order passed by a Superintendent under sub-paragraph (2) above shall, subject to the control of the Deputy Inspector General be final."
7. These regulations indicate that the recruitment to the post of constable is to be proceeded by a selection. Those who are selected are sent for training. Such constables are placed on prohibition. The petitioner was appointed on temporary basis. The petitioner has annexed in the supplementary affidavit the extract of the register maintained in the office of Superintendent of Police, Shahjahanpur wherein it was recorded that the Superintendent of Police by his order dated 12.11.1974 appointed the petitioner and two others, namely, Prabha Bajpai and Mira Bajpai as lady constables on temporary basis. The order clearly indicates that the appointment of the petitioner is on temporary basis and the services can be terminated at any time. She was not placed on probation. The petitioner and other two lady constables appointed by the order of Superintendent of Police dated 12.11.1974 were alleged to have been sent for training along with other 113 lady constables at training centre, Moradabad for three months. The mere fact that the petitioner was sent for training does not itself indicate that she was regularly selected on clear vacancy and thereafter sent for training. She was never treated on probation as contemplated under para 541 of the regulations.
8. The learned counsel for the petitioner submitted that any person recruited as constable shall be treated as on probation and his services can be terminated only by complying the provisions of Clause (2) of para 541 of the regulations which provides that where at the end of period of probation, the Superintendent of Police is of the opinion that a recruit is unlikely to make a good police officer, he may dispense with his services but before this is done, the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and he should be called upon to show cause as to why he should not be discharged. The recruit is entitled to make representation in writing and that is to be duly considered by the Superintendent of Police before passing the order of termination. This clause is applicable when a person is recruited as constable after having gone through the selection on a clear vacancy. In case a person is appointed on temporary basis, he is not entitled to the benefit as is provided to a probationer under Para 541 (2) of the regulations.
9. The learned counsel for the petitioner has placed reliance on the decision Chandra Prakash Shahi v. State of U. P. and Ors., 2000 (3) AWC 1848 (SC) : AIR 2OOO SC 17O6. In this case, there was no dispute that the appellant therein was recruited as a constable in 34th Battalion Pradeshik Armed Constabulary, U. P. under the U. P. Pradeshik Armed Constabulary Act, 1948. He had completed training and thereafter was placed on probation for a period of two years. He completed his period of probation but a year later, his services were terminated by a simple notice in terms of Rule 3 of U. P. Temporary Government Servants (Termination of Service) Rules, 1975. The Apex Court, relying upon sub-paragraph (2) of Para 541 of the regulations, in para 33 of the judgment held that where the services of a probationer are proposed to be terminated and a particular procedure is prescribed for that purpose, that termination is to be brought about in that manner. The probationer/ constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the reply is found to be convincing, he may not be deprived of his services.
10. Sub-para (1) of Para 541 of the regulations is applicable when a person is duly recruited as a constable after due selection in accordance with the provisions of the regulations on a clear vacancy. As the petitioner herein was not recruited on the basis of regular selection but was appointed only on temporary basis, sub-para (2) of Para 541 of the regulations is not applicable in the case of the petitioner. It is well-settled that the services of temporary constable can be terminated by a simple notice in terms of Rule 3 of U. P. Temporary Government Servants (Termination of Services) Rules, 1975.
11. The second question is whether the order terminating the services of the petitioner is by way of punishment or it is simplicitor order of termination. The petitioner had filed claim petition with the allegations that the father of the petitioner had three brothers, namely, Shri Niwas Sharma, Om Prakash Sharma and Shri Krishna Sharma. Shri Om Prakash died intestate and there was some litigation between the father of the petitioner and Shri Niwas Sharma. Smt. Kutuma Devi was the wife of Shri Niwas Sharma. She had licence for a gun but it was cancelled by the licensing authority. Smt. Kutuma Devi thought that the petitioner had influenced the licensing authority to cancel her licence. She made a complaint to the Superintendent of Police. One Jitender Kumar, A.S.P., was appointed as enquiry officer. He recorded the statement of Smt. Kutuma Devi and after recording evidence, he submitted his report to the Superintendent of Police and on that basis, the services of the petitioner were terminated. The allegations of the petitioner were denied in the written statement filed on behalf of the respondents. It was alleged that Smt. Kutuma Devi neither submitted the complaint to the police nor Sri Jitendra Kumar was appointed as enquiry officer. It was denied that the order was passed on an enquiry conducted on the complaint made against the petitioner by one Smt. Kutuma Devi. It was disclosed in the written statement that there were adverse entries against the petitioner and those entries were considered by the respondent No. 2 for taking into consideration the period she worked as lady constable. In State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089, the Apex Court laid down the following propositions to find out whether the order has been passed by way of punishment :
'"1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.
2. The circumstances proceeding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.
3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
4. An order of termination of service is unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.
5. If there be full-scale departmental enquiry envisaged by Article 311, i.e., an enquiry officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article."
12. The petitioner failed to establish that her services were terminated on the basis of an enquiry alleged to have been made by Smt. Kutuma Devi, her aunt. The petitioner, in paragraph 12 of the writ petition, has referred to three entries and warning given to her in regard to her conduct. The Superintendent of Police took into account the service record of the petitioner for assessing whether the petitioner should continue in service or not and if he finds that such recruit is not fit for continuance in service, he can dispense with the services of such temporary recruit. In Chandra Prakash Shahi's case (supra), the Tribunal had recorded a finding that the services of the constable were terminated on the basis of findings recorded during enquiry conducted against him. It was found that he had indulged in misconduct to the superior officers of the department and he was found guilty along with others for the said misconduct and on the basis of such misconduct, his services were terminated and this case has no application to the facts of present case.
13. In view of the above, we do not find any merit in the writ petition. It is accordingly dismissed.