Babu Nandan Pandey v. U. P. Public Services Tribunal (V)
1992-05-14
VIJAY BAHUGUNA
body1992
DigiLaw.ai
JUDGMENT : Vijay Bahuguna, J. The Petitioner, who was appointed as a constable in November, 1963, by the Senior Superintendent of Police, Kanpur, has by means of this writ petition under Article 226 of the Constitution challenged the order of the U.P. Public Services Tribunal in Claim petition No. 255/F/V/1984 by means of which the reference preferred by the Petitioner u/s 4 of the U.P. Public Services (Tribunals Act, 1976 was dismissed. The Petitioner has further prayed for the quashing of the order dated 27-5-1973 and the order dated 31-3-1984 by means of which the appeal preferred by the Petitioner against his order of termination was rejected by the Deputy Inspector General of Police, Kanpur Range Kanpur. 2. The facts in brief are that the Petitioner was appointed as a constable in November, 1963. 26-5-1973 when he was posted at Allahabad, the Petitioner was involved in a criminal case u/s 188 of the Indian Penal Code, Section 7 of the Criminal Law Amendment Act, Section 3 of the DIR and Section 29 of the police Act. He was arrested and sent to jail and on the 27th of May, 1973, the Petitioner's services were terminated-On the 23rd of June, 1976 the Petitioner was given benefit of doubt and was acquitted by the Magistrate On the 26th of July, 1983 he made a representation to the Senior Superintendent of Police Allahabad and on 13th February, 1984, his representation was rejected by the Deputy Inspector General of Police, Allahabad. The case of the Petitioner was that as he had been appointed on probation, after the expiry of his probation period his services could not be terminated as he had become a confirmed Government servant and that the order of termination was passed by way of punishment as a result of the involvement of the Petitioner in the criminal case. 3. in the counter-affidavit filed on behalf of the State it was contended that the Petitioner was not appointed on probation and he was a temporary Government servant and that on a general assessment of the performance of the Petitioner he was found unsuitable for police service and that he had earned adverse entries in the years 1968, 1971, 1973 and his services were terminated under the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as the Rules), 4.
The Tribunal, in a well considered decision, came to the conclusion that the services of the Petitioner were terminated in accordance with law and the termination order did not cast any stigma and it was in fact an order of termination simplicitor and not by way of punishment. The Tribunal recorded a specific finding that on a perusal of the service record it was clear that the Petitioner was appointed as a temporary constable and that he had never been confirmed and as such his services could be terminated under the Rules. 5. Learned Counsel for the Petitioner has challenged the legality of the judgment and order of the Tribunal and the order of termination on the ground that the adverse entries which were taken into account by the Department In terminating the services of the Petitioner were never communicated to him in writing and as such the termination order was vitiated in law. This argument of the Petitioner is devoid of any merit as the Hon'ble Supreme Court in its decision aikuntha Nath Das v. Chief District Medical Officer JT1992 (2) 1, has laid down the law that an order of compulsory retirement is not liable to be set aside by the Court merely on the ground that while passing it uncommunicated adverse entries were also taken into consideration. This circumstance by itself cannot be the basis for interference Moreover, in the facts of the present ease the Tribunal has recorded a finding that under paragraph 297 of the U.P. police office Manual adverse entries can be communicated either In writing or orally and as such there is a presumption that the adverse entries must have been communicated to the Petitioner. 6. Paragraph 297 of the U.P. police office Manual, which provides for communication of adverse entries to the Government servants lays down the procedure for communication of adverse entries either in writing or orally. The concept of oral communication of adverse entries is not a sound proposition and as such all adverse entries given to Government servants working in police force should be communication in writing and not orally so that if there is any dispute with regard to the communication of adverse entires there is cogent material on record which would throw light on this aspect.
Hence, this Court directs the Inspector General of police, U.P. Lucknow to issue a direction to the effect that all adverse entries under paragraph 297 of the U.P. police Manual should be communicated in writing and not orally. 7. It was next contended on behalf of the Petitioner that he was appointed on probation and as such after his probation period was over he became a confirmed Government servant and his services could not be terminated under the Rules The Tribunal, on an appraisal of the service record of the Petitioner, has recorded a finding that the Petitioner was appointed as a temporary Government servant and was not appointed on probation A Full Bench of this Court in Nanak Chand v. State of U.P. 1971 ALJ 724, has held that there was nothing in the Regulations to prevent the authorities from making temporary appointments or creating temporary posts of constables. Paragraph 541 of the U.P. police Regulations applies only to those constables who were appointed as probationer and the recruit who was a pointed on probation in a clear vacancy. Regulation 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. It 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.
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. 8. The Petitioner has failed to establish before the Tribunal and before this Court that he was appointed under Regulation 541 on probation for a period of two years and that he was subsequently confirmed. In the counter-affidavit filed in this Court it has been stated on behalf of the Department that the Petitioner was appointed as a temporary constable and that he had not been appointed on probation. The order of termination therefore is not vitiated on the ground that the adverse entries were not communicated to the Petitioner or that he became a confirmed Government servant after the expiry of the probation period. 9. It was next contended on behalf of the Petitioner that the impugned order of termination was in fact is an order of punishment and as such this Court should lift the veil to go into the reason for the passing of the termination order. In the affidavits filed before the Tribunal and also filed in this Court the State has categorically stated that the order was not passed by means of punishment and it was only after a careful scrutiny of the service record of the Petitioner that he was found unsuitable to continue in service. The mere fact that the Petitioner had been involved in a criminal case will not lead to an inference or conclusion that the order of termination was passed on this ground. The order of termination does not cast any stigma on the Petitioner and as the order has been passed under the Rules it does not suffer from any infirmity or error of law calling for interference by this Court under Article 226 of the Constitution. The Tribunal has considered all the pleas raised by the Petitioner and after scrutiny of the service record has rejected the reference of the Petitioner.
The Tribunal has considered all the pleas raised by the Petitioner and after scrutiny of the service record has rejected the reference of the Petitioner. The order of the Tribunal and also the order of termination do not suffer from any error of law. 10. Accordingly, the petition is dismissed. However, there shall be no order as to costs.