Rajpal Singh v. Police Adhikshak — 1982 DIGILAW 1387 (ALL)

JUDGMENT K. C. Agarwal, J. - This petition under Article 226 of the Constitution has been filed by Rajpal Singh, challenging termination order dated 16-2-1982. 2. The petitioner was recruited as a Civil Police by the Superintendent of Police Rampur in January 1981 and was sent for training at Recruit Training Centre, Moradabad. The petitioner joined the training centre on 9/10-2-1981. At the end of the training, the petitioner along with other trainees was appearing at the final examination on 16th November, 1981. The petitioner was found using unfair means during the examination held on 16th November, 1981. He was caught by the Superintendent of Police (Rural), Moradabad and according to the practice, the answer book was taken in custody. Subsequently, the petitioners service was terminated by the impugned order which reads as under : " vkj0Vh0lh0] eqjknkckn esa ogu izf'k{k.k izkIr dj jgs dk l0 fjiksVZ uk0iq0 jktiky flag iq= Jh fpjUth flag fuoklh xzke dkSlkyiqj] Fkkuk cgjkt ftyk eqjknkckn ds lsokvksa dh vkSj vkxs vko';drk u gksus ds dkj.k fnukad 14&2&82 ls lsok eqDr fd;k tkrk gSA " 3. Challenging this order of termination the petitioners learned counsel urged that as his termination of service amounts to imposition of punishment, the order having been made without complying with Article 311(2) of the Constitution, was invalid. Admittedly, the petitioner had not been given any opportunity. The question that arises is whether the termination was by way of punishment and the said order was passed in breach of Article 311 of the Constitution. The order which was passed in the instant case was one of termination simpliciter without involving any stigma or penalty. The settled position of law is that a temporary Government servant can be reverted if the authorities find him to be unsuitable the post in which he had been appointed. The counter affidavit filed on behalf of the respondents is that the petitioner had been found unfit and unsuitable and, therefore, his service was terminated on the ground that it was no longer required. For the respondents, reliance has also been placed on Rule 3 of U. P. Temporary Government Servant Service (Termination of Services Rules 19/5) Act. The said Rule reads as under "Termination of Service. For the respondents, reliance has also been placed on Rule 3 of U. P. Temporary Government Servant Service (Termination of Services Rules 19/5) Act. The said Rule reads as under "Termination of Service. - (i) Notwithstanding anything to the contrary in any existing rules or orders on the subject, the services of a Government servant in temporary service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant." 4. It is settled law that even a temporary Government servant is entitled to protection of Article 311 (2) where termination is involved stigma of punishment. But where the decision to terminate the service taken on the ground of unsuitability of the servant in relation to the post held by him and it was not by way of any punishment and no stigma attached to him by reasons of the termination of his service, termination order cannot be said to be vitiated for non-observation of Article 311(2) of the Constitution. In Champak Lal Chiman Lal Shah v. Union of India, AIR 1964 SC 1854 , the Supreme Court has held that temporary servants are entitled to protection of Article 311(2) in the same manner as permanent servant, In Purshottam Lal Dhingra v. Union of India, 1958 SC 36, the Supreme Court has held that protection of Article 311(2) is available where the discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. The same view has been taken by the Supreme Court in Manager Government Branch Press v. D. B. Belliappa, AIR 1979 SC 429 and Commodore Commanding Southern Naval Area of Cochin v. V. N. Rajan, AIR 1981 SC 965 . 5. The learned counsel for the petitioner relied upon a decision of the Supreme Court in Stale of Bihar and others v. Shiva Bhikshauk Mishra, AIR 1971 SC 1011 . It is true that in that case the order terminating the service of the petitioner was held to be an order of punishment. It was, however, in the particular circumstances of the case that it was so held. To refer to the same, the Deputy Inspector General of Police sent an adverse notice against the petitioner proposing that, in view of the misconduct of the petitioner, he should be reverted. It was, however, in the particular circumstances of the case that it was so held. To refer to the same, the Deputy Inspector General of Police sent an adverse notice against the petitioner proposing that, in view of the misconduct of the petitioner, he should be reverted. The Inspector General of Police passed an order thereon reading ; "As proposed" Thereafter, the petitioner was asked to attend a Board of Enquiry and when that enquiry was still pending, the order reverting him was made. In the context of these facts, the Supreme Court held that the order of reversion amounted to punishment. In the instant case, the facts are altogether different. The petitioner had joined the Training School and if during the period of his training, he was found guilty of a conduct not behaving a Civil Police, he could certainly be found to be unsuitable for the job. 6. Counsel for the petitioner, however, emphasised that as for proving the charge of unfairness, the petitioner was entitled to an opportunity, the authority should have given the same to him. He relied on the principle of natural justice which has been applied to the cases of students. This principle will not apply in the instant case. Here the petitioners service had been terminated on the ground unsuitability. As the petitioner was temporary, his service could be lawfully terminated on this basis of unsuitability. 7. The learned counsel for the petitioner next contended that as some of the juniors have been retained whereas the petitioner was chosen out for being thrown out, the termination order should necessarily be found to be mala fide, We are unable to accept this submission. The petitioners termination order was based on the ground of his unsuitability. The petitioner cannot, therefore, compare himself with those who have been retained in service. These cases would fall in two different categories. In record this controversy, we may make reference to a decision of the Supreme Court reported in Regional Manager v. Pawan Kumar, AIR 1976 SC 1766 . The controversy which is involved in the present case is covered by the recent decision of the Supreme Court in Oil and Natural Gas Commission v. Dr. Mohd. S. Iskandar Ali, AIR 1980 SC 1942. It was held that. The controversy which is involved in the present case is covered by the recent decision of the Supreme Court in Oil and Natural Gas Commission v. Dr. Mohd. S. Iskandar Ali, AIR 1980 SC 1942. It was held that. - "We do not think that Sugar Singhs case AIR 1974 SC 423 in any way, conflicts with that has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution. We would, however, like to emphasise that, before Article 16 is held to have been vitiated by some section there must be a clear demonstration of discrimination between one Government servant and another, similarly placed, which cannot be reasonably explained except on an assumption or demonstration of "malice in law" or "malice in fact." As we have explained, acting on a legally extraneous or obviously misconceived ground of action would be a case of Malice in law. Orders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, are unaffected by Sugar Singh's case (supra). They are not vitiated merely because some other Government servants juniors in the subs-stative rank, have not been reverted. The learned counsel for the respondent submitted that the remarks made in the assessment roll went to show that the intention of the appointing authority was to proceed against the respondent by way of punishment. We are, however, unable to agree with this submission. It is obvious that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained. The remarks, in the assessment roll, merely indicate the nature of the performance put in by the officer for the limited purpose of determining whether or not his probation should be extended. These remarks were not intended to cast any stigma." 8. It is worthwhile to mention that the petitioner has not alleged any mala fide against the officer terminating his service. We have already held above that the impugned order terminating the petitioners service does not contain any stigma. These remarks were not intended to cast any stigma." 8. It is worthwhile to mention that the petitioner has not alleged any mala fide against the officer terminating his service. We have already held above that the impugned order terminating the petitioners service does not contain any stigma. In view of these two broad facts and the circumstances pointed out in the counter affidavit, that the petitioner had been terminated because he was found unfit, we find that the termination order was not by way of punishment and, as such, Article 311(2) will not apply. 9. For the authorities, two courses were open : (i) either to draw departmental proceedings against the petitioner after framing charge or (ii) to get it off him by terminating his service in exercise of the power that the respondents possessed in relation to the temporally employees. The respondent decided to chose the latter course. Assuming that the service of the petitioner was terminated because he was found to be guilty of having used unfair means at the examination, that would only amount to the motive which led into termination. 10. In Oil and Natural Gas Commission v. S. Iskandar Ali (supra), the petitioner was appointed in a temporary post. Against him some sort of enquiry was started, It was, however not proceeded with. Instead, the appointing authority terminated his service. The Supreme Court found that the provisions of Article 311(2) did not apply. It held that "In such a case, even if misconduct, negligence, inefficiency might be (he motive or the inducing factor which influenced the employer to terminate the service of the employee, a power which the employer undoubtedly possessed, even so, as under the terms of the appointment of the employee such a power flowed from the conduct of the service, termination of service could not be deemed as penalty or punishment........................" 11. For what we have said above, we do not find any merit in this petition and dismiss the same. No order as to costs.