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PETITIONER: RAJINDER KAUR

       Vs.

RESPONDENT: PUNJAB STATE & ANR.

DATE OF JUDGMENT08/08/1986

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J)

CITATION:  1986 AIR 1790            1986 SCR  (3) 500  1986 SCC  (4) 141        JT 1986    86  1986 SCALE  (2)203  CITATOR INFO :  RF         1991 SC1310  (8)

ACT:      Punjab  Police   Rules,  1934,   Vol.  7,  Rule  12.21- Constitution of  India, Article 311(2): Temporary constable- order of  discharge from service in innocuous terms-Based on allegation of misconduct-Whether unconstitutional and liable to be quashed.

HEADNOTE:      The  appellant,   a  temporary   lady  constable,   was discharged from  service by an order under Rule 12.21 Volume 7 of the Punjab Police Rules 1934 on the allegation that she was  unlikely  to  prove  an  efficient  police  officer.  A representation made  by her  to the Deputy Inspector General of Police  against that order was rejected. A revision filed by the  appellant against  the latter order was dismissed. A suit filed by her challenging the order of discharge as bad, arbitrary and  against the  principles of law was dismissed. This order  was confirmed by the District Judge and the High Court in appeal.      In the  appeal to  this Court  by special  leave it was contended for  the appellant  that  the  impugned  order  of discharge from  service was  made not in accordance with the said Rule,  in accordance  with the  terms and conditions of the service, but was made by way of punishment on the ground of  her   misconduct,  as   found  on   the  basis   of  the investigation  of   certain  allegations  behind  her  back, without giving her any opportunity of hearing in the enquiry or to cross-examine the witnesses.      Allowing the appeal, the Court, ^      HELD: The  impugned order  of discharge, though couched in innocuous  terms and stated to be made in accordance with the provisions  of Rule  12.21, Vol.7  of the  Punjab Police Rules, 1934,  was  really  a  camouflage  for  an  order  of dismissal from  service on the ground of misconduct as found on an  enquiry into  the allegations behind her back. It was penal in nature as it cast a stigma on the service career of the 501

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appellant. This order was made without serving the appellant any chargesheet  without asking for any explanation from her without giving  any opportunity  to show  cause against  the purported order of dismissal from service and without giving any  opportunity   to  cross-examine   the  witnesses.   It, therefore, contravenes  Art. 311(2)  of the Constitution and is liabie  to be quashed and set aside. [503F-G; 504B; 506B- C]      P.L. Dhingra  v. Union  of India,  [1958] SCR p. 828 at 862, K.H. Phadnis  v.   State  of  Maharashtra,  [1971]  SCR (Supp.)) p.  118, State  of Bihar  & Ors.  v. Shiva Bhikshuk Mishra, [1971]  2 SCR  191 at  196, Shamsher Singh & Anr. v. State of  Punjab, [1975]  1 SCR  p. 814  at  837  and  Anoop Jaiswal v. Government of India & Anr., [1984] 2 SCR p. 453, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2327 of 1986.      From the  Judgment and  order dated  10.10.1984 of  the Punjab and Haryana High Court in R.S.A. No. 2198 of 1984.      K. N. Rai for the Appellant.      R. S . Sodhi for the Respondents.      The Judgment of the Court was delivered by E      RAY, J.  After hearing the learned counsel for both the parties and on consideration of the question of law involved in this petition.      Special Leave is granted. Arguments heard.      The  appellant  petitioner  was  appointed  as  a  lady constable  in   Hoshiarpur  District   on  7.5.1979.   After completion of  training she was posted in March, 1980 in the police lines,  Hoshiarpur.  The  Superintendent  of  Police, Hoshiarpur discharged the appellant from service by an order dated 9.9.  1980 under  Rule 12.21  volume 7  of the  Punjab Police Rules,  1934. The  said order  is  in  the  following terms:           "Lady Constable  Rajinder Kaur No. 732 is unlikely           to prove  an efficient  police  officer.  She  is,           therefore, hereby discharged from the Police Force           Under  P.P.   12.21   with   effect   from   today           (9.9.1980). 502           Issue orders  in O.R.  and all concerned to notice           and necessary action."      This  order  was  made,  it  has  been  stated  in  the petition,  without  serving  any  charge-sheet  on  her  and without asking her to explain any charge. The order also has not recorded  any reason  for her  discharge  from  service. Against this  order the  appellant made  a representation to the Deputy Inspector General of Police, Jullunder Range. The said  representation   was  rejected   on  17.10.1980.   The appellant filed  a revision  against the order of the Deputy Inspector General  of Police and the same was also dismissed on 15.4.1981.  The appellant  thereafter filed  a civil suit No. 327/ASSJ/82 in the Court of Additional Senior Sub-Judge, Hoshiarpur on  16.11.1981 challenging the order of discharge as bad,  arbitrary and  against the  principles of  law. The said suit  was dismissed by the Additional Senior Sub-Judge, Hoshiarpur on  28.2.1983. Thereafter,  the appellant Sled an appeal before  the District  Judge, Hoshiarpur  on 31.3.1983 and it was numbered as Civil Appeal No. 45 of 1983. The said appeal was  dismissed on  7.5. 1984  and the judgment of the Trial Court  was confirmed. A Regular Second Appeal No. 2198

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of 1984  was filed  before the  High  Court  of  Punjab  and Haryana at Chandigarh.. The said Second Appeal was dismissed on 10.10.1984.  Hence the  instant application  for grant of special  leave   to  appeal   under  Article   136  of   the Constitution has  been filed in this Honourable Court by the appellant.      The main  argument advanced  on behalf of the appellant is that  the impugned  order of  discharge from  service was made not  in accordance with Rule 12.21 of the Punjab Police Rules, 1934  in accordance  with the terms and conditions of the service but it was made by way of punishment. An enquiry was made  by Deputy Police Superintendent, Garhshankar as to the character  of the appellant into the allegation that she stayed at  Mahalpur for  1 or  2 nights  with one constable, Jaswant Singh  and evidences  were recorded  therein without giving the  appellant any  opportunity  of  hearing  in  the enquiry and  without giving  her any  opportunity to  cross- examine the  witnesses and the impugned order was made after the completion  of the  investigation on  the ground  of her misconduct which  casted a stigma on her service career. The order in question is, therefore, not an innocuous one though expressed  in   innocuous  terms.  It  is  made  by  way  of punishment, the  ground being her misconduct as found on the basis of the investigation of certain allegations behind her back.      It was  urged on  behalf of  the respondents  that  the order dis- 503 charging the  appellant from  service was not made by way of punishment. The  order was made in accordance with the terms of  Rule   12.21  of  the  said  Rules  which  empowers  the authorities to  do away with the service of the constable at any time  within three  years of  her enrolment,  if she  is found unlikely  to prove an efficient police officer, by the Superintendent of Police and no appeal has been provided for under the Rules against the said order of discharge. It was, therefore, urged  that the  order being  made in  accordance with the conditions of service of the appellant and so it is unchallengeable before  this Court by filing a special leave petition to appeal.      Admittedly, the  appellant  was  appointed  as  a  lady constable on  7.5.1979 and  she was posted in March, 1980 in the  police   lines,  Hoshiarpur  after  completion  of  her training. It has been stated in para 15 of the petition that on  an   allegation  made  by  the  department  against  the appellant that  she spent  two nights  with a  constable  an investigation was caused to be made into the said allegation against her  conduct and  on the basis of that investigation the  impugned   order  of   discharge  was   made   by   the Superintendent of  Police, Hoshiarpur.  In para  15  of  the counter affidavit sworn on behalf of respondents it has been stated that  the Superintendent  of Police,  Hoshiarpur, got conducted  a   confidential   enquiry   through   a   Deputy Superintendent  of  Police  regarding  the  conduct  of  the appellant. On  an overall assessment of the work and conduct of the  appellant, the  Superintendent of Police, Hoshiarpur came to  the conclusion that she was not likely to become an efficient  Police   officer  and   thus  passed   an   order discharging  her   from  service   in  accordance  with  the conditions of  the service.  These averments made in para 15 of the  counter-affidavit have  been verified to be true and correct to  the knowledge  of the  deponent based  upon  the information derived from the record of the case. Thus, it is clear from  these  averments  that  the  impugned  order  of discharge though  stated to  be made  in accordance with the

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provisions of  Rule 12.21  of the Punjab Police Rules, 1934, is really  made on  the basis  of the misconduct as found on enquiry into  the allegation  behind her  back by the Deputy Superintendent of  Police, Garhshankar.  It is  not disputed that the  enquiry was  made without  serving her the charge- sheet and  without giving her any opportunity to explain the charges  and  the  allegations  levelled  against  her.  The enquiry was  conducted behind  her back  and on the basis of the result  of the  investigation she  was  discharged  from service. Therefore  in these  circumstances, it does not lie in the  mouth of the respondents to submit before this Court that the  order is  an innocuous one and it is an order made simply in accordance with the conditions of her 504 service under  Rule 12.21  of the  said Rules.  On the other hand, in  the background of these facts and circumstances it is crystal  clear that  the impugned order of discharge from service of  the appellant  was made  on the  ground  of  her misconduct and it is penal in nature as it casts a stigma on the service career of the appellant.      The next  question arises  is whether the appellant who is yet  to be  confirmed in  the service and has no right to the post  in question, the impugned order can be assailed as violative of  the protection  given by Article 311(2) of the Constitution. This  point has  been well-settled  by several decisions of this Court.      This Court has stated in no uncertain terms in the case of P. L. Dhingra v. Union of India, [1958] SCR p. 828 at 862 as follows:           "But even  if the  Government has,  by contract or           under  the  rules,  the  right  to  terminate  the           employment without  going  through  the  procedure           prescribed  for   inflicting  the   punishment  of           dismissal or  removal or  reduction in  rank,  the           Government may, nevertheless, choose to punish the           servant and  if  the  termination  of  service  is           sought to  be founded  on misconduct,  negligence,           inefficiency or other disqualification, then it is           a punishment  and the  requirements of Article 311           must be complied with."      This decision has been relied upon by this Court in the case of  K.H. Phadnis  v. State  of Maharashtra,  [1971] SCR (Supp.) p.  118 where it has been held that even in the case of reversion  of an  employee who  has been repatriated from the temporary  post of  Controller of Food Grains Department to his parent department of Excise and Prohibition, to which he had  a lien might be sent back to the substantive post in ordinary routine  administration or because of exigencies of service. Such  a person  may have been drawing a salary more than that of his substantive post but when he is reverted to the parent  department the  loss of salary cannot be said to have any  penal consequences. The matter has to be viewed as one of  substance  and  all  relevant  factors  have  to  be considered in  ascertaining whether  the order  is a genuine one of  accidence of service in which a person sent from the substantive post  to a  temporary post has to go back to the parent post  without any  aspersion against his character or integrity, or  whether the  order amounts  to a reduction in rank by way of punishment. 505      lt has  been further observed by this Court in the case of State  of Bihar & Ors. v. Shiva Bhikshuk Mishra, [1971] 2 S.C.R. 191 at 196.           "The form  of the  order is  not conclusive of its           true nature  and it  might merely  be a  cloak and

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         camouflage for  an order founded on misconduct. It           may be  that an  order which  is innocuous  on the           face  and  does  not  contain  any  imputation  of           misconduct  is   a  circumstance  or  a  piece  of           evidence for finding whether it was made by way of           punishment  or  administrative  routine.  But  the           entirety of  circumstances preceding  or attendant           on the  impugned order  must be  examined and  the           overriding  test   will  always   be  whether  the           misconduct  is  a  mere  motive  or  is  the  very           foundation of the order."      In the  case of  Shamsher Singh  &  Anr.  v.  State  of Punjab, [1975] 1 S.C.R. p.814 at 837 it has been observed as under:           "No abstract  proposition can  be laid  down  that           where the services of a probationer are terminated           without saying  anything  more  in  the  order  of           termination than  that the services are terminated           it can  never amount  to a punishment in the facts           and circumstances of the case. If a probationer is           discharged on  the ground  of misconduct, or inef-           ficiency or  for similar  reason without  a proper           enquiry  and  without  his  getting  a  reasonable           opportunity of showing cause against his discharge           it may  in a  given case  amount to  removal  from           service within  the meaning  of Article 31 l (2) f           the Constitution."      lt has been observed by this Court in the case of Anoop Jaiswal v. Government of India & Anr., [1984] 2 S.C.R. p.453 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 employee." 506      On  a  conspectus  of  all  these  decisions  mentioned hereinbefore, the  irresistible conclusion  follows that the impugned order  of discharge  though  couched  in  innocuous terms, is merely a camouflage for an order of dismissal from service on  the ground  of misconduct.  This order  has been made without serving the appellant any charge-sheet, without asking for  any explanation  from her and without giving any opportunity to  show cause  against the  purported order  of dismissal from service and without giving any opportunity to cross-examine the  witnesses examined,  that  is,  in  other words the  order has been made in total contravention of the provisions  of  Article  311(2)  of  the  constitution.  The impugned order  is, therefore,  liable to be quashed and set aside. A  writ of certiorari be issued on the respondents to quash and set aside the impugned order dated 9.9.1980 of her dismissal from service. A writ in the nature of mandamus and appropriate directions  be issued  to allow the appellant to be  reinstated   in  the   post  from  which  she  has  been discharged. The  appeal is  thus  allowed  with  costs.  The authorities concerned  will pay  all her emoluments to which she is  entitled to  in accordance  with the extant rules as early as  possible in  any case  not later  than eight weeks from the date of this judgment.

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P.S.S.                                       Appeal allowed. 507