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1997 DIGILAW 46 (RAJ)

Abdul Salam v. State of Rajasthan

1997-01-08

N.L.TIBREWAL

body1997
Honble TIBREWAL, J.–The question involved in this petition is; Whether the order terminating services of the petitioner at the end of the probation period is in fact, by way of punishment on the ground of misconduct to circumvent Departmental Enquiry initiated against him and as such it is bad in law? To decide this question the facts of the case in nut-shell are thus: The petitioner, after due selection came to be appointed as Constable in State Police Department on December 27, 1991. His appointment was made under the Rajasthan Police Subordinate Service Rules, 1989 and initially he was on probation for a period of two years. The period of probation was extended by subsequent orders upto December 14, 1994. The Superintendent of Police (for short the S.P.)Bundi, had formed a Special Police Party to check and curb the smuggling and other nefarious activities in relation to the Narcotic Drugs and Psychotropihc Substances. The Additional Superintendent of Police, Bundi, was made incharge of this Special Police Party and the petitioner was included in it vide order dated 13.7.93. The petitioners case is that on 28th February 1994, an information wasreceived that Truck No. RJ-17-G 0202 carrying large quantity of opium would pass. This information was conveyed by the petitioner to the S.P. who directed him to apprehend and check the truck and if necessary, additional help may be called for. However, the truck did not pass on that day, but the petitioner was asked to continue to keep careful vigil. It is further stated by the petitioner that in early morn-ing of the night intervening 2nd and 3rd March, 1994, a truck was seen coming from Kota side and a Maruti Car was ahead of the said truck. The truck was stopped by the petitioner and one Gobri Lal–Constable, who were keeping vigil from the octroi check post. The Truck was stopped and on checking, it was found having the same registration number as was informed to them. On search, the truck wasfound carrying opium in it. It was also noticed that licence for carrying the goods was for the weight of 4000 Kg. where as the actual weight of the goods in the truck was more than 8000 Kg. According to the petitioner, after some time, Maruti Car came from Bundi and its occupants had enquired from the petitioner as to why the truck was detained and parked? where as the actual weight of the goods in the truck was more than 8000 Kg. According to the petitioner, after some time, Maruti Car came from Bundi and its occupants had enquired from the petitioner as to why the truck was detained and parked? In the meantime, certain persons who were politi-cians and liquor contractors came in another Car and threatened the petitioner with dire consequences if the truck was detained and checked by him. (2). The petitioner was suspended by the S.P. on 3rd March, 1994 itself in exercise of power under Rule-13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 on the ground of contemplation of an inquiry. Then,Then, a memo was served with a charge-sheet on June 22, 1994 framing certain charges. The gravamen of the charges is that the petitioner alongwith Constable Gobri Lal and one Farooq Lohar impersonated to be officers of the C.I.D. and disclosing as such, checked truck No. RJ-17-G-0202 and also obtained permit of `DODA-POST from the Driver. Another charge is that they forcibly snatched Rs. 2100/-2100/- from the driver namely, Harlal Jat and Rs. 5,000/- from Bal Chand, owner of the truck and further made illegal demand of Rs. 15,000/- from them threatening to involve them in an opium case if they failed to fulfil the demand. Copies of the memo and charge-sheet have been placed on record as Annexure-6 and 7. A perusal of the charges would indicate that the charges, if proved, are of serious na-ture. The Departmental Enquiry commenced in the instant case and enquiry officer was also appointed for conducting regular enquiry vide order dated, 13.7.94 (Annexure- 8). Then, on 14.12.94, the impugned order terminating petitioners service with immediate effect was issued by the S.P. stating therein that his work was found unsatisfactory during probation period. An appeal was preferred by the petitioneragainst the said order, but without any success, as the same was dismissed vide order dated May 25, 1995 (Annex. 11) by the Dy. Inspector General of Police (DIG) Kota Range, Kota. (3). Assailing the order of termination, Shri Kamlakar Sharma, learned counsel appearing for the petitioner, vehemently contended that the impugned order, thoughcouched in innocuous terms, but in fact, is a camouflage for an order of dismissal for misconduct. 11) by the Dy. Inspector General of Police (DIG) Kota Range, Kota. (3). Assailing the order of termination, Shri Kamlakar Sharma, learned counsel appearing for the petitioner, vehemently contended that the impugned order, thoughcouched in innocuous terms, but in fact, is a camouflage for an order of dismissal for misconduct. Counsel contended that on deep examination of real circumstances, as well as the basis and foundation of the order complained for the true character of the ordr will come out to show that it is a dismissal order for the alleged misconduct without holding an inquiry as warrnated under Article 311(2) of theConstitution. Learned counsel also contended that the provisions of Article 311(2) are attracted even in the case of termination of service during probation period, if it is by way of punishment and it is duty of the Court to unveil the curtain to find out the real character of the order. On the other hand, learned counsel, appearing for the respondents contended that the order is of termination simpliciter and it waspassed by the competent authority having regard to his unsatisfactory work during probation period. (4). I have given my careful consideration to the respective submission made by the counsel appearing for the parties. At the out-set, it may be stated that it is well settled by now that even in the case of temporary service, provision of Article311 is applicable and the Court can examine to see whether the order terminating service has been made on the ground of misconduct by way of punishment. In a given case, the order of termination may be innocuous without attaching any stigma against the employee, but on scrutiny, if it is found to be by way of punishment for the alleged misconduct without holding an enquiry, the same shallbe bad in law and is liable to be quashed and set aside. (5). In Purshottam Lal Dhingra vs. Union of India (1), the land mark judgment on Article 311 of the Constitution of India, the position of a probationer was also considered by the Apex Court. (5). In Purshottam Lal Dhingra vs. Union of India (1), the land mark judgment on Article 311 of the Constitution of India, the position of a probationer was also considered by the Apex Court. It was laid down in it that where a person is appointed to a permanent post in Government service on probation, termination of his service during or at the end of the period of probation, will not ordinarily and by itself by a punishment because the Government servant so appointed has no right to continue to hold such a post. Such a termination does not operate as a forfeiture of any right of a servant to hold the post for he has no such right. It was further observed that, if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and violates Article 311 of the Constitution. (6). In Shamsher Singh vs. State of Punjab (2), a Seven Judge Bench of the Supreme Court observed as under:- ``Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the performance is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Article 311(2) he can claim protection. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Article 311(2) he can claim protection. In State of Bihar vs. Gopi Kishore Prasad ( AIR 1960 SC 689 ) it was said that if the Government proceeded against the petitioner in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment, instead of taking the easy course, the Government chose the more difficult one of starting proceedigns against him and branding him as a dishonest and incompetent officer. (7). In K.H. Phadnis vs. State of Maharashtra (3) it is laid down that the sub-stance of the order and not the form would be decisive as to whether the termination is by way of punishment. If the facts and circumstances of the case indicate that termination is by way of punishment, then a probationer is entitled to attract Article 311 of the Constitution. (8). In Anoop Jaiswal vs. Government of India (4) it is held by the SupremeCourt as under:- ``Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court, before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment, is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employees. (9). Then again in Nepal Singh vs. State of U.P. (5), it was reiterated as under:- ``Where allegations of misconduct are levelled against a government servant, and it is a case where the provisions of Article 311(2) of the Constitution should be authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that, therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex-facie innocuous termination order. The court will view with great disfavour any attempt to circumvent the constitutional provision of Article 311(2) in a case where that provision comes into play. (10). In Jarnail Singh vs. State of Punjab (6), it was again held as under:- ``When an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the court, in such a case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency, or not. (11). In Omprakash Goel vs. H.P. Tourism Development Corporation and another (7), after considering the judgments of the Supreme Court on the point iswas held as under:- ``From the above decisions it can be seen that it is well settled that in a case of an order of termination even that of a temporary employee, the Court has to see whether the order was made on the ground of misconduct if such a complaint was made and in that process the Court would examine the real circumstances as well as the basis and foundation of the order complained of and if the court is satisfied that the termination of services is not so innocuous as claimed to be and if the circumstances further disclosed that it is only a camouflage with a view to avoid an enquiry as warranted by Article 311(2) of the Cons- titution, then such a termination is liable to be quashed. In the above mentioned decisions, the impugned termination order was accordingly quashed. (12). A scrutiny of the Judicial pronouncements cited above, leads to the following proposition of law on termination of a probationers service:- (i) No abstract proposition can be laid down that where services of a probationer are terminated without saying anything more in the order of termination then that termination can never amount to a punishment in the facts and circumstances of the case. In other words, it substance of the order and not the form would be decisive. (ii) A probationer has no right to hold the post. In other words, it substance of the order and not the form would be decisive. (ii) A probationer has no right to hold the post. The termination of his service during or at the end of the period of probation will not ordinarily and by itself by a punishment. Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. A termination simpliciter on the ground of unsatisfactory service or unsuitability for the job in the absence of any Rule governing a probationer is not by way of punishment attracting Article 311(2) of the Constitution. (iii) The authority may, in some cases, be of the view that the conduct of the probationer may result in dismissal or removal on an enquiry, but it does not choose to hold an enquiry and adopt to simply discharge the probationer with a view to give him a chance to make good in other walks of life without stigma at the time of termination of probation. In that situation also, the order would not amount to one of dismissal in substance. To attract the provisions of Article 311 of the Constitution, a preliminary enquiry to satisfy as to whether there is reason to dispense with the service of a temporary employee without anything more also does not attract Article 311. (iv) If the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and services are terminated only as a camouflage with a view to avoid enquiry as warranted by Article 311(2), then, such termination is liable to be quashed in such cases, it is not difficult to see that the form of the termination order only is in reality a cloak for the order of punishment. (13). In the back ground of legal propositions as referred to above, the next question arises for determination is: whether the order terminating service of the petitioner is by way of punishment for the alleged misconduct and thus violates Article 311(2) of the Constitution ? (14). It is not disputed that a regular charge sheet was served on the petitioneron June 22, 1994, and an enquiry officer was also appointed for holding the enquiry vide order dated, 13th July, 1994. However, before the enquiry could be concluded, order of termination was passed on 14.12.94. (14). It is not disputed that a regular charge sheet was served on the petitioneron June 22, 1994, and an enquiry officer was also appointed for holding the enquiry vide order dated, 13th July, 1994. However, before the enquiry could be concluded, order of termination was passed on 14.12.94. Though, the order does not have any reference to the enquiry, but the order dated, 25.5.95 (Annexure-11) passed by the D.I.G. Police, Kota Range, Kota, in the appeal filed against the impugned order hasreferred to the charges which were against the petitioner in the inquiry under Rule 16 of CCA Rules. Having gone through the entire material on record and the fact that charges against of the petitioner have been referred by the D.I.G. Police in his Order, I am satisfied that termination order, which appears to be innocuous, is intended to punished the petitioner for his misconduct in respect of the allegationsmentioned in the charge-sheet served upon him. In order to avoid the enquiry, as warranted by Article 311(2) of the Constitution, the petitioners service have been terminated by the impugned order, hence it is bad in law. (15). In the result, this petition deserves to be allowed and is hereby allowed. The impugned termination order is, therefore, quashed. The petitioner shall be rein-stated in service with all consequential benefits. However, the concerned authority shall be free to continue with the departmental enquiry, in accordance with law, which was initiated against the petitioner. The parties shall bear their own costs in the facts and circumstances of the case.