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Allahabad High Court · body

2009 DIGILAW 2920 (ALL)

PRAVEEN TYAGI v. STATE OF U. P.

2009-08-21

SUDHIR AGARWAL

body2009
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Vijay Gautam, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. Since pleadings are complete, as requested and agreed by learned counsel for the parties, this matter has been heard and is being decided under the Rules of the Court at this stage. 3. The order impugned in this writ petition is that of termination of petitioner in exercise of power under U.P. Temporary Government Servants (Termination of Services) Rules, 1975 (hereinafter referred to as the “1975 Rules”) vide order dated 25.7.2007 passed by the Commandant 41st Bn. P.A.C., Ghaziabad on the ground that the petitioner’s services are no longer required. 4. The facts, in brief, stated in the writ petition are that the petitioner was selected for the post of Constable against a permanent post through process of selection consisting of written test, physical examination and interview, result whereof was declared in August, 2006. After clearance by the Medical Board, the petitioner was appointed as Constable in P.A.C. and sent on training on 2.9.2006. He completed his initial training of J.T.C. course by 08.10.2006 and thereafter sent for R.T.C. course at 6th Bn. P.A.C., Meerut. While undergoing training, impugned order of termination was passed on 25.7.2007 by the Commandant 41st Bn. P.A.C., Ghaziabad. 5. Sri Gautam has assailed the impugned order of termination mainly on three grounds : (1) The impugned order having been passed in purported exercse of power under 1975 Rules is illegal and without jurisdiction since the aforesaid Rules are not applicable to a police constable who governed by the provisions of U.P. P.A.C. Act, 1948 (hereinafter referred to as the “Act, 1948”) read with the Police Act, 1861 (hereinafter referred to as the “Act, 1861”) and the Rules and Regulations framed thereunder. (2) The impugned order has been passed in violation of U.P. Police Regulations (hereinafter referred to the “Regulations”), para 541, which is applicable in the case in hand and provides the procedure for discharge of a probationer constable. The said procedure has not been followed. (3) The impugned order is founded on the alleged act of misconduct and since no regular departmental inquiry has been conducted, it is in violation of Article 311(2) of the Constitution of India read with U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the “1991 Rules”). 6. (3) The impugned order is founded on the alleged act of misconduct and since no regular departmental inquiry has been conducted, it is in violation of Article 311(2) of the Constitution of India read with U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the “1991 Rules”). 6. Learned Standing counsel relying on the counter-affidavit filed on behalf of respondents stated that in the night of 6.6.2007, the petitioner unauthorizedly and without prior permission left the premises of 6th Bn. P.A.C., Meerut and went to a petrol pump at about 8.00 pm in the evening where he quarrel with the salesmen of petrol pump at Garh Road, Meerut as a result whereof a first information report was lodged being Case Crime No. 23 of 2007, under Sections 323, 504 and 506 IPC. A preliminary inquiry was conducted by the Assistant Commandant, 41st Bn. P.A.C., Ghaziabad who finds the charge of quarrel, abuse and unauthorised absence from the premises proved as a result whereof he has been terminated in exercise of power under Section 1975 Rules. He refer to preliminary inquiry report submitted by Sri Ramesh Chandra Sharma, Assistant Commandant, 41st Bn. P.A.C., Ghaziabad dated 12.7.2007 and also the report of Sri Chhatrapal Singh, Incharge Company Commander, R.T.C., 6th Bn. P.A.C., Meerut dated 07.6.2007. 7. I have heard learned counsel for the parties and perused the record. 8. The first question is whether the services of petitioner could have been terminated in exercise of power under 1975 Rules. The constables in P.A.C. are governed by the Act, 1948. Section 5 of Act 1948 apply Act 1861 and the Rules and Regulations framed thereunder in the matters not provided in Act, 1948. That is how Police Regulations become applicable to the petitioner. vide Section 13 of 1948 Act, wherever the power of disciplinary action has been conferred upon Superintendent of Police under the Act 1861 and the Rules and Regulations framed thereunder, the same would apply to a Commandant or Assistant Commandant subject to such rules framed by the Government in this behalf. It is not in dispute that for termination of a probationer constable, provision has been made under Regulations, i.e., para 541 which reads as under : “541. (1) A recruit will be on probation from the date he begins to officiate in a clear vacancy. It is not in dispute that for termination of a probationer constable, provision has been made under Regulations, i.e., para 541 which 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.” 9. A perusal of para 541 of the Regulations shows that the period of probation of a recruit is two years. If at the end of the period of probation his work and performance is found satisfactory, he is liable to be confirmed by the appointing authority. Sub-para 2 of para 541, however, says that if the Superintendent of Police is of the opinion that a recruit is unlikely to make a good police officer, he may dispense with his service but prior thereto 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 is also entitled to submit a representation in writing and the Superintendent of Police before passing order of discharge is under an obligation to consider the same if it is submitted by the recruit. The supervisory power of review against such an order of discharge has been conferred upon Deputy Inspector General vide para 541(3) of the Regulations. 10. Earlier this Court has taken a view in the State of U.P. v. Chandra Bhal Singh, 1971(1) SLR 579, that the Police Regulations shall be overridden by the Temporary Government Servants (Termination of Services) Rules, 1975 since these Rules having been framed under proviso to Article 309 of the Constitution will override Police Regulations. Later on a Larger Bench of this Court though expressly has not overruled the said decision but has taken a different view fortified by the decision of the Apex Court also. 11. The question as to whether the Rules framed under proviso to Article 309 of the Constitution will prevail or the Police Regulations, came up for consideration before the Apex Court in Chandra Prakash Tiwari v. Shakuntala Shukla, AIR 2002 SC 2322 and the Apex Court while considering the above question in reference to U.P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1994 framed under proviso to Article 309 qua Government Order dated 5.11.1965 issued under Section 2 of the Act, 1861 held that the Rules framed under proviso to Article 309 would not apply since the field is covered by the statutory order issued under Section 2 of the Act, 1861. It may be noticed that before the Apex Court not even a Rule framed under Act, 1861 was under consideration but only a Government Order 5.11.1965 was up for consideration and the question was whether such Government Order would prevail over the Rules framed under proviso to Article 309 and in that context, the Apex Court answered the question upholding the superiority of the statutory order issued under the provisions of Act, 1861 and decline to give superiority to Rules framed under proviso to Article 309 of the Constitution. 12. 12. Again this matter was considered by a Full Bench in Vijay Singh and others v. State of U.P. and others, 2004(4) ESC 2209, with reference to the applicability of U.P. Recruitment of Service (Age Limit) Rules, 1972 and after having a retrospect on the entire case law on the subject, the Full Bench held, that 1972 Rules would not apply where the matter is governed by the provisions made under Act, 1861 and in para 64 of the judgment the Full Bench said as under : “As herein the field is already occupied by the provisions of Act, 1861 which is in operation by virtue of the provisions of Article 313 of the Constitution, thus, Rules 1972 could not be attracted at all. The Government orders issued for fixing the maximum age for recruitment on subordinate police posts operate in an entirely different field and are not in conflict with the Rules 1972. The case stands squarely covered by the Apex Court judgment in Chandra Prakash Tiwari (supra) and, thus, it is not possible for us to take any other view. The submissions made by Mr. Chaudhary that pre-Constitutional law stands abrogated altogether by commencement of the Rules 1972, is devoid of any merit. Therefore, our answer to question No. 1 is that the field stood occupied on account of the provisions of Section 2 of the Act 1861.” 13. The same view was expressed earlier to Full Bench by the Division Bench in Subhash Chandra Sharma v. State of U.P., 2000 AWC(3) 2367, as is evident from para 16 of the judgment, which is reproduced as under : “Thus, there can be no doubt that if the appropriate Legislature has enacted a law regulating the recruitment and conditions of service, the power of the Governor is totally displaced, and he cannot make any Rule under proviso to Article 309 of the Constitution. In State of U.P. v. Babu Ram Upadhyaya, AIR 1961 SC 751 , a decision rendered by a Constitution Bench, the Police Act and the U.P. Police Regulations came up for consideration and it was held as follows in paragraph 12 of the Reports : “the result is that the Police Act and the Police Regulations made in exercise of power conferred on the Government under that Act, which were preserved under Section 243 of the Government of India Act, 1935, continue to be in force after the Constitution so far as they are consistent with the provisions of the Constitution.” In paragraph 23, it was observed that the Police Act and the Rules made thereunder constitute a self-contained Code providing for appointment of the police officers and prescribing the procedure for their removal. In Nanank Chand v. State of U.P., 1971 ALJ 724, a Full Bench of our Court held as follows : “it is not correct to say that no temporary posts can be created in the Police Force, Section 2 of the Police Act is certainly wide enough to permit such posts to be created, and it appears that it is now the general Rule in U.P. for all new recruits to be employed at first in a temporary capacity.” 14. Again in Vijay Shanker Tripathi v. State Public Services Tribunal and others, Writ Petition No. 28767 of 1998 decided on 23.11.2005 another Division Bench referring to the Full Bench decision in Vijay Singh (supra) in para 8, observed as under : “Large number of issues have been agitated before us, but it is not necessary to entertain all the said pleas for the reason that there can be no doubt to the settled legal proposition that even a temporary employee is entitled to the protection of Article 311 of the Constitution. A Full Bench of this Court in Vijay Singh and others v. State of U.P. and others, 2004 (4) ESC (All) 2209, has held that Rules framed under proviso to Article 309 of the Constitution do not apply to Police personnel as their services are governed by the Police Act, 1861 and the U.P. Police Regulations. In view thereof, the U.P. Temporary Government Servants (Termination of Service) Rules 1975, may not be applicable. In view thereof, the U.P. Temporary Government Servants (Termination of Service) Rules 1975, may not be applicable. This view also stands fortified by large number of judgments of the Hon’ble Apex Court referred to and relied upon in Vijay Singh (supra) and also in Chandra Prakash Shahi v. State of U.P. and others, AIR 2000 SC 1706 .” (emphasis added) 15. In Vijay Shanker Tripathi (supra) this Court specifically considered the question of applicability of 1975 Rules to the constables in police force and it was held that 1975 Rules may not be applicable and for the said purpose the Division Bench relied on Full Bench of this Court in Vijay Singh (supra) and the Apex Court’s decision in Chandra Prakash Shahi v. State of U.P. and others, 2000(5) SCC 152 . 16. This Court, therefore, is bound by the dictum laid down by the Full Bench of this Court as well as the Apex Court and answer this question in favour of petitioner. The impugned order, therefore, is illegal and without jurisdiction since 1975 Rules are not applicable to the petitioner and his services could have been terminated only in accordance with the procedure prescribed under para 541 of the Regulations and not otherwise. 17. Now coming to the second question as to whether the procedure laid down under para 541 of the Regulations has been followed or not. There is nothing in the counter-affidavit filed by the respondents to show that any notice was issued or opportunity was afforded to the petitioner before passing the impugned order of termination informing him about the alleged act or omission on his part on account whereof the appointing authority opined that the petitioner would not prove to be a good constable or is unlikely to prove to be a good police officer. It is true that for the purpose of discharging a constable in accordance with para 541 of the Regulations no regular departmental inquiry is contemplated but the minimal requirement of para 541 is that the incumbent must be supplied with specific complaints and grounds on which it is proposed to discharge and he should be given an opportunity to submit his representation before taking any final decision. It is not the case of the respondents and at least nothing has been placed before this Court that any such opportunity was given. It is not the case of the respondents and at least nothing has been placed before this Court that any such opportunity was given. The counter-affidavit though shows that a preliminary inquiry was conducted by the Assistant Commandant but the entire preliminary inquiry also nowhere shows that the petitioner was given a notice or show cause notice in the manner as contemplated under para 541(2) of the Regulations. It appears that the Assistant Commandant while inquiring the matter from others also recorded statement of petitioner about his version and thereafter submitted his report. He did not inform the petitioner about the material which he has obtained against him and the petitioner thereafter was not afforded any opportunity to explain his case after considering the entire material adverse to him which was available with the respondents. The kind of preliminary inquiry which has been conducted by the respondents does not satisfy the requirement of para 541 of the Regulations inasmuch as it is one thing where employee is called upon and his statement is recorded about some incident but it is totally a different aspect where the employee is informed of the entire complaint and material which is adverse against him and is liable to be considered by the authority concerned before passing an order. Even the report submitted by Sri Chhatrapal Singh, Incharge, Company Commander shows that on his own observations he complained that the petitioner was in drunken stage when he quarrel at the petrol pump. He also says that the petitioner was examined medically but in the next very line of his report he says that the medical report was not available. He has said nowhere that in the medical examination also the petitioner was found drunken. 18. In view of the above circumstances, I find it difficult to hold that the procedure followed by respondents satisfy the requirement of para 541 of the Regulations and, therefore, the impugned order cannot be sustained having been passed in violation of the procedure laid down in para 541 of the Regulations. 19. 18. In view of the above circumstances, I find it difficult to hold that the procedure followed by respondents satisfy the requirement of para 541 of the Regulations and, therefore, the impugned order cannot be sustained having been passed in violation of the procedure laid down in para 541 of the Regulations. 19. Now coming to the last issue as to whether the impugned order can be held to be punitive in nature and bad having been passed without holding any regular inquiry and observing requirement of Article 311(2) of the Constitution read with 1991 Rules, I find that in the counter-affidavit it is the clear case case of the respondents that the charge of unauthorised absence from the premises of 6th Bn. P.A.C., Meerut, where he was undergoing training as also quarrel at the petrol pump was found proved in the light of preliminary inquiry report submitted by the Assistant Commandant and as a result thereof the petitioner has been terminated vide order dated 25.7.2007. The manner in which the preliminary inquiry has been conducted by the Assistant Commandant shows that he formulated a charge, referred to certain documentary evidenced, thereafter examined certain witnesses and then has recorded his finding that the charge against the petitioner stands proved. The aforesaid inquiry has not been conducted as a regular disciplinary inquiry by informing the charge to the petitioner and following the procedure laid down in 1991 Rules. The statements of the persons recorded by the Assistant Commandant are ex parte in the nature inasmuch as the petitioner was not afforded any opportunity to cross-examine all these witnesses nor it does appear that after recording all such statements and evidences on the part of department, the petitioner was given any opportunity to place his defence, oral or documentary, as the case may be. 20. 20. The question as to when an order of termination simplicitor can be held punitive has been considered in detail by a Division Bench of this Court (in which I was a member) in Paras Nath Pandey v. Director, N.C.Z.C.C., Allahabad, 2008(10) ADJ 283 and in para 57 thereof this Court has laid down certain principles which may be relevant for such determination and the same is reproduced as under : (a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution. (b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences. (c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order. (d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct. (e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary. (f) “Motive” and “foundation” are distinct, though the distinction is either very thin or overlapping. “Motive” is the moving power, which impels action for a definite result, or to put it differently. “Motive” is that which incites or stimulates a person to do an act. “Foundation”, however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation. “Motive” is the moving power, which impels action for a definite result, or to put it differently. “Motive” is that which incites or stimulates a person to do an act. “Foundation”, however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation. (g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not. (h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive. (i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed. (j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive. (k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive. (l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee. (m) If some formal departmental enquiry commenced but not pursued to the end. (l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee. (m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive (n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct. (o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive. i. “want of application”, ii. “lack of potential”, iii. “found not dependable”, iv. “under suspension”, v. “work is unsatisfactory”, vi. “unlikely to prove an efficient officer”. (p) Description of background facts also have not been held to be stigmatic. (q) However, the words “undesirable to be retained in Government service”, have been held stigmatic. (r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive. 21. In para 57(f) of Paras Nath Pandey (supra) while distinguishing the “motive” and “foundation” it has been observed that where the act or omission constituting misconduct is the foundation for passing order of termination simplicitor it would be penal in nature and cannot be passed without holding proper inquiry. This Court observed that “foundation” means the conduct of the employee, when his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation. 22. This Court observed that “foundation” means the conduct of the employee, when his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation. 22. In para 57(g) of Paras Nath Pandey (supra) the Court further says that if the order of termination simplicitor is punitive, it is dismissal of service and, therefore, would require a full fledged departmental inquiry in compliance of the procedure prescribed under Article 311(2) of the Constitution. 23. In para 57(h) of Paras Nath Pandey (supra) the Court further says where the employer is satisfied with the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and instead of going into the correctness of guilt, feels like not to keep the employee and thus terminate him, it is order of termination simplicitor. 24. Again in para 57(i) of Paras Nath Pandey (supra) the Court held where the termination simplicitor is preceded by an inquiry, preliminary or regular, the Court would see the purpose and object of such inquiry as also the stage at which the order of termination has been passed. 25. In para 57(l) of Paras Nath Pandey (supra) it is held that where the employer held a formal inquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive. 26. Considering in the light of the above principles deduced in para 57 of Paras Nath Pandey (supra), it is evident in the present case that to find out the correctness and guilt of the petitioner, the respondents held a preliminary inquiry and as a result of findings of guilt recorded therein, the impugned order has been passed after holding that the alleged act of misconduct is proved against the petitioner. Though the order itself does not mention anything but the attendant circumstance and the documents on record leaves no manner of doubt that after being satisfied with the guilt of the petitioner, the respondents have tried to follow a short circuit. 27. I have no hesitation in holding that the impugned order is penal and amounts to dismissal or removal. Though the order itself does not mention anything but the attendant circumstance and the documents on record leaves no manner of doubt that after being satisfied with the guilt of the petitioner, the respondents have tried to follow a short circuit. 27. I have no hesitation in holding that the impugned order is penal and amounts to dismissal or removal. Since the procedure prescribed under 1991 Rules read with Article 311(2) of the Constitution has not been observed before passing such an order, the impugned order cannot sustain. 28. In fact the facts of this case are almost pari materia to the case in Chandra Prakash Shahi (supra) where also the Apex Court held an order of termination simplicitor passed in similar circumstances as punitive and set aside the same. 29. In view of the above discussion, the writ petition succeeds and is allowed. The termination order dated 25.7.2007 is hereby quashed. The petitioner shall be entitled for all consequential benefits as admissible in law. However, this judgment shall not preclude the respondents from proceeding afresh against the petitioner in accordance with law. There shall be no order as to costs. ————