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PETITIONER: HARI SINGH MANN

       Vs.

RESPONDENT: THE STATE OF PUNJAB & ORS.

DATE OF JUDGMENT20/08/1974

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN

CITATION:  1974 AIR 2263            1975 SCR  (1) 774  1975 SCC  (3) 130

ACT: Punjab  Civil Services (Punishment and Appeal) Rules,  1952, Rules  8(b) and 9--Termination of service of probationer  on ground    of    unfitness   for   appointment    to    State Service--Expression  "unfit  to be  appointed",  if  carries stigma.

HEADNOTE: The  appellant was appointed on 20 May, 1965, on two  years’ probation.  On 1 July, 1967 there was an order extending the period of probation by one year.  On May 20, 1968, there was an  order  terminating the services of the  petitioner.   On July  20,  1968  there was an order revoking  the  order  of termination  and extending the period of probation  for  six months from 20th May, 1968.  The order of termination was on Jan.  30, 1969.  This order recited that, having  considered him  unfit for appointment to the State Police  Service  the services  of the appellant are dispensed with on the  expiry of  his extended period of probation.  Two contentions  were raised by the appellant in the High Court.  First, the order of  termination  was  passed  on Jan.  30,  1969,  when  the petitioner.  by reason of expiry of 3 years stood  confirmed on 19/20 November, 1968 and Second, the order of termination was  one  of punishment and the appellant should  have  been given  an  opportunity to show cause against  the  order  of termination  under  Rule  9  of  the  Punjab  Civil  Service (Punishment and Appeal) Rules, 1952.  These contentions were rejected by the High Court.  Hence the appeal to this  Court by Special Leave. Dismissing the appeal, HELD: The object of extending the period of probation is  to find  out  whether  the appellant was  a  fit  person.   The appellant  could  not  be  confirmed,  till  the  period  of probation  expired.  It cannot, therefore, be held that  the appellant stood confirmed on 19/20 November, 1968 before the period of probaition expired in January, 1969. [776A-B] (2)  Termination  on account of unsatisfactory  record  will attract  rule  9  of the Punishment Rules.   Fitness  was  a matter  to be considered at the time of  confirmation.   The order terminating the services is unfitness for  appointment and not on the ground of any turpitude to attract Rule 9  of the  Punishment Rules, 1952.  To hold that the words  "unfit

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to be appointed" mentioned in the order of termination,  are a  stigma,  would deprive the authorities to  judge  fitness ’for  work  or  suitability  to  a  post  at  the  time   of confirmation.    Termination  of  services  on  account   of inadequacy  for  the job or for any  tompramental  or  other defect  not involving moral turpitude is not a stigma  which can be called discharge by punishment.  Fitness for the  job is one. of the most important reasons for confirmation.  The facts  and  circumstances  do not show that  there  was  any stigma  attached to the order of termination and  therefore, Rule  9  of the Punjab Civil Service (Punishment  &  Appeal) Rules,  1952  is not attracted in the present  case.  [7760- 777B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1955 of 1970. Appeal by Special Leave from the judgement & other dated the 5th  November, 1969 of the Punjab & Harayana High  Court  in Civil Write No. 309 of 1969. R.  K.  Garg,  S. C. Agarwala and V.  J.  Francis,  for  the appellant. 775 V. C. Mahajan and 0. P. Shorma, for the respondents. The Judgment of the Court was delivered by RAY,  C.J.  This  is an appeal by  special  leave  from  the judgment dated 5 November, 1969 of the High Court of  Punjab and  Haryana.   The  only person is  whether  the  order  of termination of the service    of  the  appellant who  was  a probationer  is in violation of Rule 9 of the  Punjab  Civil Service (Punishment & Appeal) Rules, 1952. The appellant was selected by the Public Service  Commission as a direct recruit on 20 May, 1965.  He was appointed on 26 May,’  1965.   He joined as a probationer.   The  period  of probation was two years. Rule  8(b)  of the Punjab Police Service Rules  1959  states that   the  services  of  a  member  recruited   by   direct appointment  may be dispensed with by the Government on  his failing  to  pass the final examination at the  end  of  his period of training, or on his being reported on during or at the   end  of  his  period  of  probation,  as   unfit   for appointment. The  order  terminating the services of  the  appellant  was as follows:-               The President of India is pleased to  dispense               with  the  service of Shri  Hari  Singh  Mann,               Probationery Deputy Superintendent of  Police,               Amritsar on the expiry of his extended  period               of  probation with effect from  2-2-1969(A.N.)               under  rule 8(b) of the Punjab Police  Service               Rules  1959, having considered him  unfit  for               appointment  to the State Police Service.  The               period  from 20-5-68 to 2-8-68 which has  been               treated  as  leave of the kind  due  has  been               excluded    from   the   period    of    trial               (Probation)." The two contentions which have been advanced before the High Court  were repeated here. First, the order  of  termination was passed on 30 January, 1969 when the petitioner by reason of expiry of three years stood confirmed on 19/20  November, 1968. Second the order of termination was one of  punishment and  the  appellant should,therefore, under Rule  9  of  the Punjab Civil Service (Punishment and Appeal) Rules have been given  opportunity  to  show  cause  against  the  order  of

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termination. Under  the  aforesaid (Police Service)  Rule  8(b)  proviso, the  Government could extend the period of probation by  not more  than one year. The appellant was appointed on 20  May, 1965  on two years probation. On 1 July, 1967, there was  an order  extending the period of probation by one year. On  20 May,  1968, there was an order terminating the  services  of the petitioner. on 20 July. 1968 there was an order revoking the  order  of  termination  and  extending  the  period  of probation  for  six months from 20 May, 1968. The  order  of termination  was on 30 January, 1969. The appellant  was  on leave from 20 May, 1968 to 2 August, 1968. The 776 Government  excluded the period of leave from the period  of probation. The  object of extending the period of probation is to  find out  whether the appellant was a fit person.  The  appellant could not be confirmed till the period of probation to  find out  the  fitness  of  the  appellant  expired.   It  cannot therefore  be  held that the appellant  stood  confirmed  on 19/20 November, 1968 before the period of probation  expired in January, 1969. The appellant relied on Rule 9 of the Punjab Civil  Services (Punishment and Appeal) Rules, 1952.  Rule 9 is as follows               "Where   it  is  proposed  to  terminate   the               employment of a probationer, whether during or               at the end of the period of probation, for any               specific  fault  or  on  account  of  the  un-               satisfactory  record or  unfavourable  reports               implying  the unsuitability for  the  service,               the  probationer  shall be  ,apprised  of  the               grounds   of  such  proposal,  and  given   an               opportunity  to show cause against it,  before               orders  are passed by the authority  competent               to terminate the appointment". If (Punishment) Rule 9 applies the services of the appellant could   not  be  terminated  without  complying   with   the previsions thereof. The appellant contended that the order of termination stated that the appellant was considered unfit for appointment  and therefore  it amounts to punishment to attract rule  9.  The appellant  extracted a statement from the affidavit  of  the Inspector  General  of Police in answer to  the  appellant’s petition  in  the  High Court that  the  appellant’s  record during  the period of probation was unsatisfactory  Reliance is placed on rule 9 where it is said that if the termination of the Services of a probationer be on           account  of unsatisfactory  record he shall be given an  opportunity  to show cause against it. The  respondent  relied  on rule 11  of  the  Punjab  Police Service   Rules where it is stated that in matters  relating to  discipline,  penalties  ’and  appeals,  members  of  the Service  shall  be  governed by the  Punjab  Civil  Services (Punishment and Appeal) Rules. Therefore, it is said by  the respondent that Rules 8 and 11 of the Punjab Police  Service Rules show that termination of probation which is dealt with in  rule 8 is different from matters relating  to  penalties which  are  dealt   with in rule II  of  the  Punjab  Police Service Rules. Termination on account of unsatisfactory record will attract rule  9 of the Punishment Rules. It is obvious that  at  the time  of confirmation fitness is a matter to be  considered. The   order  terminating  the  services  is  unfitness   for appointment at the time of confirmation, it is not passed on the ground of any turpitude like misconduct or inefficiency.

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To hold that the words "unfit to be appointed" are a  Stigma would rob the authorities of the power to judge fitness  for work  or  suitability   to  the      post  at  the  time  of confirmation. 777 Termination of services on account of inadequacy for the job or for any temperamental or other defect not involving moral turpitude  is not a stigma which can be called discharge  by punishment.   Fitness  for  the  job  is  one  of  the  most important   reasons   for  confirmation.   The   facts   and circumstances do not show that there is any stigma  attached to the order of termination. For  these  reasons,  the appeal  fails  and  is  dismissed. Parties will pay and bear their own costs. V.M.K.                    Appeal Dismissed. 778