Andhra HC (Pre-Telangana)
Deputy Inspector-General Of Police, ... vs R.S. Madhu Babu on 3 October, 2001
Equivalent citations: 2001(6)ALD418, 2002(3)ALT110, [2002(92)FLR368]
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. Termination of his probation was questioned by the respondent herein before the A.P. Administrative Tribunal. His prayer before the Tribunal was:
To grant appropriate relief declaring the proceedings C.No. C1/425/99 ROC No. 14/ 2000 dated 7-1-2000 issued by the 1st respondent as arbitrary, illegal, mala fide violating Articles 14, 16, and 21 of the Constitution of India apart from violation of principles of natural justice and ultra vires to Rule 11-A(2) Rule 11(d) of A.P. State and Subordinate Service Rules and quash the same and issue consequential direction directing the respondents to declare the probation of the applicant and regularise his services.
Facts:
2. It is not in dispute that the respondent has not completed 2 years period of duty within a continuous period of 3 years of probation. A show-cause notice was issued upon him on 23-10-1999 as to why his probation should not be terminated under Rule 17(a) of the A.P. State and Subordinate Service Rules (for short 'the General Rules') on the ground that certain lapses were noticed. He filed his explanation on 2-11-1999. His period of three years was completed on 10-11-1999. It is contended that even though the respondent was absent for about six months and 18 days, in the show-cause notice he was said to have been absent for a period of 258 days wherefor the aforementioned show-cause notice was issued. The memo dated 23-10-1999 reads thus:
The Superintendent of Police, Kurnool in his letter No. Al/1582/99 dated 9-9-1999 has informed that you were appointed as RSI (AR) on 11-11-1996 and reported in DAR., Kumool on 17-7-1998 A.N. after completion of training at APPA. You have not completed 2 years of duty within continuous period of 3 years. You are due to complete the period of two years on duty by 25-1-2000. In normal course you should have completed the period of 3 years by 10-11-1999 A.N. But for your reporting sick and absence from training, you could not complete the period of 2 years of probation, .............Accordingly the Additional Superintendent of Police, Kurnool framed minor charge against you in C No. A7/ 09/99 dated 23-1-1999 and awarded punishment of censure in proceedings C No. A7/9/99, dated 1-10-1999.
........You reported sick to avoid grey hounds training from 20-1-1999 to 19-7-1999. Therefore you were referred to medical Board. You appeared before the Physician MMI of CGH. Kumool with OP ticket on 12-4-1999. You were examined and admitted for further evaluation. But you did not turn up in MMI ward with admission form. The action of yours led suspicion that you were not really sick. Another memo was also issued by Superintendent of Police, Kurnool on 15-5-1999 with instructions to appear before Medical Board and it was pasted to the door of your house at Karvotingamar by the special messenger in your absence. Another memo was issued on 21-6-1999 which was received by your father, but you did not appear before the Medical Board. In this connection disciplinary action has been initiated against you ........
According to para 5 of Chief Office Memo No. 419/R and T/Tr/4/97, dated 4-7-1998, if for any reason i.e., for absence/leave, etc., a recruit probationer is not likely to complete his period of probation within a continuous period of 3 years, his probation needs to be terminated and he should be discharged from service unless otherwise permission is accorded under any rules or orders of the Government.
As per the para 6 of the Chief office memo cited the unauthorised absence/ other misconduct and failure in examinations by the recruits/cadets amount to unsatisfactory conduct an unsatisfactory performance respectively under Rule 17(a)(ii) of A.P. State Subordinate Service Rules and action should be taken accordingly, instead of resorting to a departmental enquiry and resultant delay.
In short, I have noticed the following lapses on your part and hold that your performance during the period of your probation is unsatisfactory......
1. While you were undergoing 9 months basic training at APPA, Hyderabad the unauthorised period of absence for 89 days between 11-11-1996 to 30-3-1998 has been treated as leave without pay.
2. While undergoing training at grey hounds, you were absent from 22-12-1997 to 14-6-1998.
(e) You were appointed as RSI on 11-11-1996 and were supposed to complete two years of service by 10-11-1998 in a continuous period of 3 years of service including the absence period which you failed to do.
Therefore, you are hereby called upon to show-cause as to why your probation should be terminated under 17(a) of A.P. State and Subordinate Service Rules and discharge from service..............
3. The contention of the respondent before the learned Tribunal inter alia was that the order impugned before it was contrary to Rule 11-A (2) as also Rule 18(b) of the Rules. A punishment having already been imposed for unauthorised absence, termination of probation would amount to double punishment which is impermissible under the statute. In any event, no opportunity of hearing having been granted, the same is violative of Article 311 of the Constitution.
4. The petitioners, on the other hand, contended that from the very beginning the respondent failed to show good performance. He did not undergo the required training. He had been imposed a punishment of censure for gross misconduct and absence from training unauthorisedly. He even did not show any zeal or enthusiasm in performing his duties. Furthermore, he did not complete 2 years period within a continuous period of 3 years but unauthorisedly absented from duty for several times. It was stated that the explanation of the respondent was not found to be convincing.
5. The impugned order dated 7-1-2000 reads thus:
The following lapses have been found on the part of the ASI and hold that his performance during the period of his probation is unsatisfactory.
I have gone through the connected records and the further representation of the Prob RSI carefully. During the period of probation he did not evidence any interest towards his work and moreover his performance is not satisfactory for the reasons as stated above. As per rules the probationer has to work for a period of two years in continuous period of 3 years. Rules do not permit any relaxation of this on any account. I, therefore, order that his probation be terminated with immediate effect.
6. The law operating in this field is no longer res integra.
7. In view of the decision of the Apex Court in C. Navaneeswara Reddy v. Government of A.P., 1998 (1) Supreme 478, Dipti Prakash Banerjee v. Satyendra Nath Bse National Centre For Basic Sciences, , V.P. Ahoja v. State of Punjab, , the question which has to be posed and answered is whether a misconduct was the foundation or the motive for passing the impugned orders.
8. In High Court of Madhya Pradesh v. Satya Naryan Jhawar, 2001 (3) SLR 645 = 2001 AIR SCW 3112, it has been held that a deemed confirmation of a probationer would arise when the letter of appointment so stipulates or the governing service conditions so indicate.
9. The learned Tribunal has allowed the original application filed by the respondent herein principally on the ground that a discrimination has been made in the case of by and between the petitioners and the case of one U. V. Prasada Rao, wherein the benefit of extension of the period of probation had been granted. The learned Tribunal further held that the order of termination is stigmatic and punitive in nature, and in support of the said finding relied upon the decision in A.P. Ahuja's case (supra).
10. It is not in dispute that the respondent was on unauthorised absence. The fact that he was censured is not in dispute. However, the justifiability or otherwise of the said order of censure cannot be a ground which could be taken into consideration inasmuch as the said order has never been challenged. Unsatisfactory performance of the respondent is one of the principal grounds which resulted in passing the impugned order. He had been sufficiently warned by reason of a memo. It is not in dispute that although he had been granted medical leave but he did not appear before the Medical Board. He again went on unauthorised leave. So far as the question of discrimination is concerned, it does not appear that any material has been placed before the Tribunal to show that the case of the petitioners and U. V. Prasada Rao was absolutely similarly situated.
11. It is not in doubt nor is disputed that no Court can direct an authority to extend the period of probation. Whether the period of probation should be extended or not is a matter which is primarily within the domain of the appropriate statutory authority. Such function cannot be usurped by the Court except in very exceptional situation.
The order impugned before the Tribunal was not ex facie stigmatic. In a situation of this nature, the decision of the Apex Court in V.P. Ahuja's case whereupon the learned Tribunal has placed strong reliance has no application. This aspect of the matter has been considered by his Court in Writ Petition No. 1931 of 2001, disposed of on 23-3-2001 wherein it was held:
But in the instant case, the petitioner's probationary period was terminated not only because he had failed to pass the examination, but also because of his unsatisfactory performance of progress. It is not in dispute that in terms of Rule 10 of A.P. Police Recruits School Manual, he could have been discharged from service upon giving one month's notice to him. The petitioner herein had not questioned the order of censure imposed on him......
This Court in its equitable jurisdiction does not exercise its discretion in granting any relief to the writ petitioner only because it is lawful to do so. Attendant circumstances and the conduct of persons seeking equitable relief may be taken into consideration by the Court while exercising its writ jurisdiction.
The petitioner was recruited in a disciplined force. The allegations made against the petitioner are serious in nature and per se would disentilte him from continuing in service. Having regard to the cumulative effect of all the aforementioned circumstances including the unsatisfactory performance, the appointing authority appears to have taken recourse to Rule 17(a)(ii) of the said Rules which came into force in 1996 in place of Rules 24 and 25(c) of the old Rules.
12. In V.P. Ahuja's case, DIPTI's case followed wherein Saghir Ahmed, J., although considered the affidavit filed before the High Court to know the background, arrived at the following finding:
"8.......Such an order which, on the face of it is stigmatic, could not have been passed without holding a regular enquiry and giving an opportunity of hearing to the appellant.
9. The entire case law with respect to a "probationer" was reviewed by this Court in a recent decision in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences . This decision fully covers the instant case as well, particularly as in this case, the order impugned is stigmatic on the fact of it.
13. Yet again this Court in Writ Petition No. 16390 of 1998 distinguished V.P, Ahuja 's case and held:
..........The impugned order ex facie is not stigmatic. As regards the contention that in the counter-affidavit certain allegations have been made, we agree with the submissions made by Mr. L. Narasimha Reddy to the effect that such statements had been made only to meet the allegations made by the petitioner in her writ affidavit to the effect that her performance had all along been satisfactory.
14. For the foregoing reasons, the impugned judgment cannot be sustained and it is set aside accordingly. The writ petition is allowed. There shall be no order as to costs.