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CASE NO.: Appeal (civil)  5090 of 2006

PETITIONER: STATE OF PUNJAB & ORS

RESPONDENT: RAJESH KUMAR

DATE OF JUDGMENT: 20/11/2006

BENCH: Dr.AR.LAKSHMANAN & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

(Arising out of SLP(C) No.12359 of 2006)

Dr.AR.LAKSHMANAN, J.

       Leave granted.           Heard learned counsel for the appellants and the respondent.         We have perused the orders passed by the courts below and the  relevant rules.         The respondent was appointed on 02.12.1989 as a Constable.  He was  discharged from service on 18.10.1992 under Rule 12.21 of Punjab Police  Rules.  Rule 12.21 reads as under :-         "12.21.  Discharge of inefficient:           A constable who is found unlikely to prove an efficient police  officer may be discharged by the Superintendent of police at any  time within three years of enrolment.  There shall be no appeal  against an order of discharge under the rule"

       It is also the case of the Department that the respondent being an  unauthorised absentee, the Superintendent of Police found him unlikely  to  prove an efficient police officer as per high standard of discipline as being  expected from police personnel.  The above submission of the learned counsel  for the appellants is supported by a recent decision of this Court in State of  Punjab & Ors. vs. Sukhwinder Singh, (2005) 5 SCC 569, which is also a case of  a police constable and the discharge of the said police officer before  completion of probation period of three years.  This Court held that a superior  officer in order to satisfy himself whether the employee concerned should be  continued in service or not may make an enquiry for this purpose.  The  superior officers of the Department have to take work from an employee and  they are the best people to judge whether an employee should continue in  service and made a permanent employee or not having regard to his  performance, conduct and overall suitability for the job.  A probationer is on  test and a temporary employee has no right to the post.           In the instant case, a simple order of discharge has been passed.  It is  not in dispute that the respondent was on probation having been appointed on  02.12.1989 and discharged on 18.10.1992.  The period of probation gives any  time an opportunity to the employer to watch the work, ability, efficiency,  sincerity and competence of the servant.  In the instant case, the Department  officials found the respondent not suitable for the post and, therefore, they  always reserve a right to dispense with his services in any manner during or at  the end of the prescribed period which is called period of probation.         In a similar case titled State of Punjab vs. Balbir Singh, 2004 (7) JT 383  in which a constable was discharged from service under Rule 12.21 on the  basis of specific charge of consumption of liquor in office and misbehaviour  with a lady constable and this Court while affirming the order of discharge  passed the following order :

       "Order of termination cannot be held to be punitive in nature.  The

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misconduct on behalf of the respondent was not the inducing  factor for the termination of the respondent.  The preliminary  enquiry was not done with the object of finding out misconduct on  the part of the respondent it was done only with a view to  determine the suitability of the respondent within the meaning of  Punjab Police Rules 12.21.  The termination was not founded on  the misconduct but the misbehaviour with a lady constable and  consumption of liquor in office were considered to determine the  suitability of the respondent for the job, in the light of the standard  of discipline expected from police personnel."

       The Full Bench of the High Court of Punjab & Haryana has held in the  case of Sher Singh vs.State of Haryana, 1994(2) S.L.R. Page 100 that a  constable can be discharged from service under Rule 12.21 of Punjab Police  Rules, 1934 at any time within three years of his enrolment in spite of the fact  that there is a specific allegation which may even amount to misconduct  against him.  It was further held by the Full Bench that a Superintendent of  Police can form his opinion on police officer not only on the basis of the  periodic reports contemplated under Rule 19.5 but also on the basis of any  other relevant material.  In view of the above decision, the constable can be  discharged from service even if there is specific allegation which may amount  to misconduct against him.         The High Court, in our opinion, has also failed to notice that  departmental enquiry is not required before passing an order under Rule 12.21  of Punjab Police Rules to discharge a constable on ground of his unauthorised  absence and being habitual absentee who is not suitable to become a police  officer.         All the Courts below are not right in observing that the order of  discharge dated 18.10.1992 passed by the Senior superintendent of Police is  based on misconduct of the respondent and, therefore, no opportunity of  hearing is necessary as per paw.            In our opinion, all the lower courts including the High Court was clearly  in error in holding that the order of termination of service is punitive in nature.   We, therefore,  allow the appeal filed by the appellants and set aside the orders  passed by all the courts below and also of the High Court.           No costs.