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PETITIONER: HARDEEP SINGH

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT13/08/1987

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

CITATION:  1987 SCR  (3)1138        1987 SCC  Supl.  295  JT 1987 (3)   417        1987 SCALE  (2)431

ACT:     Civil  Services: Punjab Police Rules 1934, Rules 12.  31 and 16. 24 (ix)(b)--Police Constable on probation--Order  of removal   from   service   passed  on   account   of   union activities--No  chargesheet served--No enquiry  held--Order, when can be quashed.     Constitution  of  India, 1950,  Art.  311(2)--Whether  a probationer is entitled to protection, and if so, when.

HEADNOTE:     The petitioner, a Constable in the Haryana Police  Serv- ice,  was removed from service during the period  of  proba- tion.  However, he was not given any opportunity of  hearing against  the purported order of dismissal from  service.  He challenged the impugned order of removal on the ground  that he was removed from service because of his activities in the Haryana Police Association and it was in fact a penal  order and  as such the same being made without complying with  the requirements of Article 311(2) as well as Rule  16.24(ix)(b) of  the Punjab Police Rules, 1934, it is  wholly  arbitrary, illegal and unwarranted.     It  was contended on behalf of the respondent  that  the impugned order is not an order of dismissal from service and in fact this is an order of discharge made under Rule  12.21 of  the Rules since the appointing authority was of  consid- ered  opinion on the assessment of his conduct and  perform- ance that the petitioner was unlikely to prove an  efficient police officer. Allowing the writ petition to this Court,     HELD:  1.  (i) The impugned order  of  removal/dismissal from service was in substance and in effect an order made by way  of punishment after considering the service conduct  of the  petitioner. It is therefore quashed and it is  directed that he be reinstated in service with 50 per cent back wages from the date of termination of his service till the date of his  reinstatement.  He would, however, be entitled  to  his full salary and other allowances admissible w.e.f. the  date of  his  reinstatement. There would however be no  break  in continuity of service for purposes of seniority and  pension benefits. [1144D; 1145A-C]            1139     (ii)  There is no doubt that the impugned order casts  a

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stigma on the service career of the petitioner and the order being made by way of punishment, the petitioner is  entitled to  the  protection afforded by the  provisions  of  Article 311(2)  of the Constitution as well as by the provisions  of Rule 16.24(ix)(b) of the Punjab Police Rules 1934. [1144E]     (iii)  It cannot be said that the impugned order  is  an order  simpliciter of removal from service of a  probationer in accordance with the terms and conditions of service.  The impugned order undoubtedly tantamounts to the dismissal from the  service for reasons of misconduct of the petitioner  in discharge  of  the  official  duties  as  police  constable. [1144G-H]     2.  A probationer has no right to the post and if he  is found by the concerned authorities to be unsuitable for  the post  during  the probation period his service may  be  done away with. But nonetheless such a probationer has a right to have an opportunity of hearing against the order of dismiss- al/removal from the service if the same is made in effect by way of punishment or the same casts a stigma on the  service career of the petitioner. [1141G-H; 1142A]     In the instant case, the petitioner has not been  served with any charges of misconduct in discharge of his duties as a police constable nor has he ever been asked to show  cause against the said charges. The order of removal from  service was made because of his union activities namely  participat- ing  in the call for expressing the protest of the  Associa- tion  for  improvement in service conditions  by  abstaining from taking meals in the Mess on 15th August, 1982  although the  petitioner like other members of the  association  per- formed his duties on that day and did not abstain from duty. [1144E-G]     P.L. Dhingra v. Union of India, AIR 1958 (SC) 36; Samsh- er  Singh v. State of Punjab and Anr., AIR 1974  (SC)  2192; Anoop  Jaiswal v. Government of India & Anr., AIR 1964  (SC) 636  and Alit Singh & Ors. v. State of Haryana & Ors.,  W.P. No. 9345-94 98/1983, followed.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1615 of 1986. (Under Article 32 of the Constitution of India). R.P. Gupta for the Petitioner. C.V. Subba Rao for the Respondents. 1140 The Order of the Court was delivered by     B.C.  RAY,  J.  The petitioner who was  appointed  as  a constable  in the Haryana Police Force on November  7,  1979 has challenged in this writ petition the order dated  August 24,  1982  issued by the Commandant, 2nd Bn.  Haryana  Armed Police,  Madhuban on the ground that the impugned  order  of removal from service was in effect a penal order and as such the same being made without complying with the  requirements of  Article 311(2) as well as the Rule 16.24(ix)(b)  of  the Punjab  Police Rules, 1934 is wholly arbitrary, illegal  and unwarranted  and  so  the impugned order  is  liable  to  be quashed and set aside and the petitioner to be reinstated in service.  The facts of the case in a nutshell are  that  the petitioner was enrolled as a constable in the Haryana Police Service  in November, 1979 and he had been  discharging  his duties  attached to his office duly and properly. The  peti- tioner was a member of an unregistered Haryana Police  Asso- ciation.  The said association had been convassing  for  im- provement in the Service conditions of the police  personnel

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serving  with  the Haryana Police and on  several  occasions made  representations for improvement of the service  condi- tions of the members of the police service. As a part of its campaign for improvement in service conditions, the associa- tion in the month of July gave a call to all its members  to participate  in "a nontaking of food campaign" which was  to take place on 15th August, 1982. On that day the  petitioner and other police personnel numbering about 16,000 consisting of  constables and head-constables of Haryana  Police  Force attended to their duties but they did not take their food in the  Mess.  The  protest undertaken by  the  Haryana  police constables/ head-constables was a symbolic and peaceful  one and  no  incident whatsoever had occurred on that  day.  The respondents,  however  issued  order  of   dismissal/removal against  425  policemen under rule 12.21 of the  said  rules without serving on them any charge-sheet and without  giving them  any opportunity of hearing against the charges,  prior to  the passing of the said order of dismissal/removal  from service. About 154 of such policemen challenged the order of their  dismissal/removal from service in writ petition  Nos. 9345 to 9498 of 1983 before this Court and the  Constitution Bench of this Court after hearing, set aside the said  order of  dismissal  from service and  directed  reinstatement  in service without any break in their service.     The petitioner because of his activities in the Associa- tion  was  served with the impugned order  of  removal  from service  without being given any opportunity of hearing  and without  being  asked to show cause  against  the  purported order of dismissal from service. The    1141 petitioner  has  challenged the validity  of  this  impugned order  in  this writ petition. A return has  been  filed  on behalf  of  the respondents sworn by one Raj  K.  Vashishta, IPS,  Commandant  2nd  Bn. Haryana  Armed  Police,  Madhuban District, Karnal wherein in paragraph. 2 it has been  stated that  the impugned order is not an order of  dismissal  from service and in fact this is an order of discharge made under rule 12.21 of the Punjab Police Rules, 1934 as applicable in Haryana.  It has been further stated in paragraph 3  of  the said  affidavit that the petitioner deliberately  suppressed the facts that:                  (i) That for his absence from duty, without               leave for more than 24 hours with effect  from               25.10.80 he had been awarded 5 days P.D.                  (ii)  Again he had been warned for  absence               without leave for five hours on 21.4.81.                  (iii)  Notwithstanding  the  warnings   and               punishments  awarded for absence from duty  in               1980,  and again in 1981, the  petitioner  did               not  show any improvements in his  performance               and  conduct and again absented from  duty               on 15th August, 1982.     It  has  also been stated that a recruit  constable  who within  a  span of three years of his  enrolment  repeatedly absents  from duty and does not improve himself in spite  of warnings,  is not likely to prove an efficient police  offi- cer.     It  has further been averred in the said affidavit  that the petitioner was discharged because the appointing author- ity (Superintendent of Police) was of considered opinion  on due  assessment of his conduct and performance that  he  was unlikely  to prove an efficient police officer. These  aver- ments have been verified as correct according to the  infor- mation derived from the official records and believed by the deponent to be true.

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   There is no dispute that the petitioner was enrolled  as a constable with effect from November 7, 1979 and he was  on probation  which is for a period of three years. It is  also well settled that a probationer has no right to the post and if he is found by the concerned authorities to be unsuitable for the post during the probation period his service may  be done  away  with. But nonetheless such a probationer  has  a right to have an opportunity of hearing against the order of dismissal   removal  from  service if the same  is  made  in effect by way of 1142 punishment or the same casts a stigma on the service  career of   the  petitioner.  In  other  words  if  the  order   of dismissal/removal from the service is not one simpliciter on the  ground  that his service is no longer required  but  in substance  and in effect the same is made by way of  punish- ment,  the probationer like the petitioner who has no  right to  the  post is to be given an opportunity of  hearing.  If such  an  order of dismissal/removal from  service  is  made without following the procedure envisaged in Article  311(2) of the Constitution of India as well as rule 16.24(ix)(b) of the  Punjab Police Rules, 1934 the same will be illegal  and bad  and liable to be quashed. This position has  been  well settled  by this Court in the case of P.L. Dhingra v.  Union of  India, AIR 1958 (SC) 36 wherein it has been observed  as under:-               "  .......  Passing on to Article 311 we  find               that it gives a two-fold protection to persons               who  come  within  the  article,  namely,  (1)               against  dismissal or removal by an  authority               subordinate  to  that by which they  were  ap-               pointed  and (2) against dismissal or  removal               or  reduction  in rank without giving  them  a               reasonable   opportunity  of   showing   cause               against  the  action proposed to be  taken  in               regard to them. Incidentally it will be  noted               that  the word "removed" has been added  after               the  word "dismissed" in both Clauses (1)  and               (2)  of Art. 311. Upon Art. 311 two  questions               arise,  namely,  (a) who are entitled  to  the               protection  and  (b) what are  the  ambit  and               scope of the protection?"               "   ........   Shortly put, the  principle  is               that when a servant has right to a post or  to               a rank either under the terms of the  contract               of  employment, express or implied,  or  under               the  rules  governing the  conditions  of  his               service,  the  termination of the  service  of               such  a  servant or his reduction to  a  lower               post  is by itself and prima facie  a  punish-               ment,  for it operates as a forfeiture of  his               right  to hold that post or that rank  and  to               get the emoluments and other benefits attached               thereto.  But if the servant has no  right  to               the post, as where he is appointed to a  post,               permanent or temporary either on probation  or               on  an officiating basis and  whose  temporary               service has not ripened into a quasi-permanent               service  as defined in the  Temporary  Service               Rules, the termination of his employment  does               not  deprive  him  of any  right  and  cannot,               therefore, by itself be a punishment. One test               for determining whether the termination of the               service  of a government servant is by way  of               punishment is to ascertain

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                1143               whether the servant, but for such termination,               had  the right to hold the post. If he  had  a               right  to-the’  post  as in  the  three  cases               hereinbefore mentioned, the termination of his               service will by itself be a punishment and  he               will  be  entitled to the protection  of  Art.               311."               "   ........  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  reduc-               tion  in rank, the Government  may,  neverthe-               less, 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  punish-               ment and the requirements of Art. 311 must  be               complied with."                   In  the case of Samsher Singh v. State  of               Punjab  and Anr., AIR 1974 (SC) 2 192  it  has               been observed as under:               "No abstract proposition can be laid down that               where the services of a probationer are termi-               nated  without  saying anything  more  in  the               order  of termination than that  the  services               are  terminated it can never amount to a  pun-               ishment in the facts and circumstances of  the               case.  If a probationer is discharged  on  the               ground  of misconduct, or inefficiency 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 311(2)  of  the               Constitution."     It has been further observed that the form of the  order may  be innocuous but if the order is really by way of  pun- ishment  then the protection under Article 311(2) will  come into  play and the probationer will be entitled to  have  an opportunity of hearing before the impugned order of dismiss- al/removal from service is made. The substance of the  order and not the form could be decisive.     In a later decision of this Court i.e. Anoop Jaiswal  v. Government  of India and Anr., AIR 1984 (SC)  636  following the aforesaid two decisions this Court has observed that: 1144               "The  form of the order is not decisive as  to               whether the order is by way of punishment  and               that  even an innocuously worded order  termi-               nating  the service may in the facts and  cir-               cumstances  of  the  case  establish  that  an               enquiry into allegations of serious and  grave               character  of misconduct involving stigma  has               been  made in infraction of the  provision  of               Art.  311(2). 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 charac-               ter of the order. If the Court holds that  the               order though in the form is merely a  determi-               nation of employment is in reality a cloak for               an order of punishment, the Court would not be

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             debarred,  merely because of the form  of  the               order,  in  giving effect to the  rights  con-               ferred by law upon the employee."     In  the  instant case it is clear and evident  from  the averments  made  in paragraph 3, sub-para (i) to  (iii)  and paragraph  (v)  of the counter-affidavit that  the  impugned order of removal/dismissal from service was in substance and in effect an order made by way of punishment after consider- ing the service conduct of the petitioner. There is no doubt that the impugned order casts a stigma on the service career of the petitioner and the order being made by way of punish- ment, the petitioner is entitled to the protection  afforded by  the provisions of Article 311(2) of the Constitution  as well as by the provisions of Rule 16.24(IX)(b) of the Punjab Police Rules, 1934. The petitioner has not been served  with any  charges of misconduct in discharge of his duties  as  a police  constable nor has he ever been asked to  show  cause against the said charges. The order of removal from  service was made because of his union activities namely  participat- ing  in the call for expressing the protest of the  associa- tion  for  improvement in service conditions  by  abstaining from taking meals in the Mess on 15th August, 1982  although the  petitioner like other members of the  association  per- formed his duties on that day and did not abstain from duty. It cannot be said in the facts and circumstances of the case that  the impugned order is an order simpliciter of  removal from  service of a probationer in accordance with the  terms and conditions of the service. The impugned order undoubted- ly,  tantamounts  to  dismissal from service  by  reason  of misconduct  of the petitioner in discharge of  the  official duties aS police constable. This matter is fully covered  by the  decision  dated October 17, 1984  of  the  Constitution Bench in Ajit Singh & Ors. v. State of Haryana & Ors., (W.P. Nos. 9345-9498/1983) and we are bound to follow the same.    1145     In the premises aforesaid the writ petition succeeds and is allowed, the impugned order of discharge of the petition- er from Haryana Police Force under rule 12.21 of the  Punjab Police  Rules, 1934 passed by the Commandant, 2nd Bn.,  Har- yana  Armed Police is quashed and it is directed that he  be reinstated  in service with 50% back wages from the date  of termination  of his service till the date of his  reinstate- ment. He would, however, be entitled to his full salary  and other allowances admissible with effect from the date of his reinstatement. It is further directed that there would be no break in continuity of service for purposes of seniority and pensionary benefits. No costs. M.L.A.                                              Petition allowed. 1146