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CASE NO.: Appeal (civil)  4441 of 2001

PETITIONER: State of Punjab and others                               

RESPONDENT: Sukhwinder Singh                                                 

DATE OF JUDGMENT: 14/07/2005

BENCH: CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

G.P. Mathur, J.

1.      This appeal, by special leave, has been preferred by the State of  Punjab and others challenging the judgment and decree dated 30.1.2001  of the High Court of Punjab and Haryana by which the Second Appeal  preferred by the appellants was dismissed and the decree passed by the  courts below decreeing the respondent’s suit was affirmed. 2.      The respondent Sukhwinder Singh joined on 4.8.1989 as a police  constable and was allotted number 644  in District Amritsar in the State  of Punjab.  He was sent for training at Police Recruit Training College  Jahan Khelan.  He absented from duty w.e.f. 22.2.1990 without making  any application for grant of leave or seeking permission for his absence.   The Senior Superintendent of Police, Amritsar, passed the following  order on 16.3.1990: - "Constable Sukhwinder Singh No. 644/ASR of this District  is discharged from service w.e.f. 16.3.1990 under Punjab  Police Rules 12.21 as he is not likely to become an efficient  police officer."

The respondent Sukhwinder Singh filed a civil suit in the Court of Sub- Judge, Amritsar, seeking a declaration that the order dated 16.3.1990,  passed by the Senior Superintendent of Police, Amritsar, discharging him  from service, was illegal and inoperative in law as it was passed by way  of punishment, without holding any enquiry and without giving him any  opportunity of hearing.  The appellants herein contested the suit on  various grounds and the main plea taken therein was that the respondent  had to put in less than three years of service and was a probationer on the  date of passing of the order dated 16.3.1990 and, therefore, he was  rightly discharged under Rule 12.21 of the Punjab Police Rules  (hereinafter referred to as the ’Rules’) by the Senior Superintendent of  Police.  The Senior Superintendent of Police was of the opinion that the  respondent was not likely to become an efficient police officer and,  therefore, he exercised his powers under Rule 12.21.   It was further  pleaded that the respondent being a probationer had no right to the post.   The order of discharge did not cast any stigma and did not affect him  with any evil consequences.   3.      The learned sub-Judge, Amritsar, after appreciating the evidence  on record, held that the order dated 16.3.1990 passed by the Senior  Superintendent of Police, Amritsar, was illegal, null and void and  accordingly passed a decree in favour of the respondent that he  would  continue in service and was entitled to his pay, powers, privileges and  other service benefits of the post of a constable.  The appeal preferred by  the appellants was dismissed by the Additional District Judge on  28.5.1994 and the decree of the trial court was affirmed.  The appellants  then preferred a Second Appeal in the High Court, which was also  dismissed on the finding that the respondent was thrown out of job on the

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ground of absence from duty.  Absence from duty is a misconduct and it  was a punishment which was imposed upon him without holding a  formal inquiry as envisaged under Rule 16.24 (ix) of the Rules.   Consequently the order of discharge dated 16.3.1990 was wholly illegal  and contrary to law. 4.      Learned counsel for the appellants has submitted that the  respondent had been appointed on 4.8.1989 and he had not completed  three years of service and, therefore, he was only a probationer in terms  of the Rules.  The impugned order is neither stigmatic nor it affects him  with any evil consequences, as it only uses the expression that the  respondent is not likely to become an efficient police officer.  The Rules  confer power upon the appointing authority to discharge a probationer  without holding any inquiry if he forms an opinion that the constable is  not likely to become an efficient police officer.  The learned counsel  further submitted that no disciplinary action had been taken against the  respondent and as such there was no necessity of holding any formal  inquiry wherein the delinquent employee is afforded an opportunity to  defend himself.

5.      The learned counsel for the respondent has, on the other hand,  submitted that the impugned order of discharge dated 16.3.1990 though  apparently looks to be innocuous but had in fact been passed on the  ground of misconduct, viz., the absence from duty w.e.f. 22.2.1990 and,  therefore, it is founded upon an act of misconduct.  He has further  submitted that the aforesaid misconduct being the foundation of the  order, it was obligatory upon the appointing authority to have held a  formal departmental inquiry wherein the respondent would have got an  opportunity to defend himself  6.      Rule 12.21 of the Rules reads as under: -         "A constable who is found unlikely to prove an  efficient police officer may be discharged by the  Superintendent at any time within three years of enrolment.   There shall be no appeal against an order of discharge under  this rule."

7.      A Full Bench of Punjab and Haryana High Court in Sher Singh v.  State of Haryana and others  1994 (1) PLR 456, has examined the content  and scope of Rules 12.21, 19.3 and 19.5 of the Rules in considerable  detail.  It has been held in that case that the effect of the Rules is that for  a period of three years a constable is under surveillance.  He is being  watched and is kept in close supervision.  He has no right to the post and  his services are terminable at any time during this period of three years.   He can secure his position in the service only if he convinces the  Superintendent of Police that he is likely to prove an efficient police  officer.  The Full Bench has further held that the Rules contained the  necessary guidelines for the Superintendent of Police, on the basis of  which, he has to form an opinion regarding a constable.  If on a  consideration of the relevant material, the Superintendent of Police finds  that a particular constable is not active, disciplined, self-reliant, punctual,  sober, courteous or straight-forward or that he does not possess the  knowledge or the technical details of the work required of him, he can  reasonably form an opinion that he is not likely to prove an efficient  police officer.  In such a situation the Superintendent of Police can  invoke his power under Rule 12.21 and can discharge the constable from  the force.  We are in agreement with the view taken by the Full Bench of  the High Court.  In fact, this view is in consonance with the decision of  this Court rendered in The Superintendent of Police, Ludhiana and  another vs. Dwarka Das 1979 (1) SLR 299, where it was observed that if  Rules 12.21(3) and 12.21 are read together, it will appear that the  maximum period of probation in the case of a police officer of the rank  of constable is three years, for the Superintendent of Police concerned  has the power to discharge him within that period.  It was also held that  the power of discharge cannot be exercised under Rule 12.21 after the  expiry of the period of three years and consequentially if it is proposed to

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deal with an inefficient police officer after the expiry of that period, it is  necessary to do so in accordance with Chapter XVI of the Rules, which  makes provisions for the imposition of various punishments including  dismissal from the police force.  No simple order of discharge under Rule  12.21 can be passed after the expiry of the period of three years for that  will attract Article 311 of the Constitution. 8.      Termination of service of a probationer during or at the end of  period of probation will not ordinarily and by itself be a punishment  because the servant so appointed has no right to continue to hold such a  post any more than a servant employed on probation by a private  employer is entitled to.  The period of probation, therefore, furnishes a  valuable opportunity to the master to closely observe the work of the  probationer and by the time the period of probation expires to make up  his mind whether to retain the servant by absorbing him in regular  service or dispense with his service.  Period of probation may vary from  post to post or master to master and it is not obligatory on the master to  prescribe a period of probation.  It is always open to the employer to  employ a person without putting him on probation.  Power to put the  employee on probation for watching his performance and the period  during which the performance is to be observed is the prerogative of the  employer. (See Ajit Singh and others etc. vs. State of Punjab and another  AIR 1983 SC 494) 9.      The learned counsel for the respondent has submitted that the court  should unveil the cloak and go behind the order dated 16.3.1990, which  had in fact been passed on the ground of continued absence from duty of  the respondent w.e.f. 22.2.1990 and as the said order was founded upon  an act of misconduct, the order of discharge was in fact an order of  dismissal by way of punishment and since no formal inquiry had been  held and the respondent had not been given an opportunity of defending  himself, the impugned order is wholly illegal and is liable to be struck  down.  In support of his submission learned counsel has placed reliance  on Hardeep Singh vs. State of Haryana and others 1987 (Supp.) SCC  295.  In this case the appellant Hardeep Singh had joined the police  service in Haryana in 1979 and became a member of an unregistered  Haryana Police Association, which had been canvassing for improvement  in the service conditions of the police personnel serving with the Haryana  Police and on several occasions made representations for improvement of  service conditions.  As part of its campaign the Association gave a call in  the month of July to all its members to participate in "a non-taking of  food campaign", which took place on 15.8.1982.  On that day the  appellant and 16,000 other Constables and Head Constables attended to  their duties but they did not take their food in the mess.  The State  Government issued order of dismissal/removal against 425 policemen  under Rule 12.21 of the Rules without serving any charge-sheet.  The  writ petition filed by 154 such policemen was allowed by this Court.  The  appellant filed a writ petition in the High Court which was dismissed.   On thorough examination of the written statement filed by the State of  Haryana and the facts of the case this Court came to a finding that the  order of discharge was passed by way of punishment on account of his  union activities, specially those participating in the call for expressing the  protest of the Association for improvement in service conditions by  abstaining from taking meals in the mess on 15.8.2002, and that it was  not a simple order of discharge.  The Court specifically held that on the  facts and circumstances of the case it could not be said that the order of  discharge was an order simpliciter of removal from service of a  probationer in accordance with the terms and conditions of the service, as  it tantamount to dismissal from service by reason of misconduct.  In our  opinion, this authority can be of no assistance to the respondent in view  of the conclusion drawn by this Court that the order had been passed on  account of the union activities of the employee and his participation in  the call for expressing the protest. 10.     The other case relied upon by the learned counsel for the  respondent is State of Uttar Pradesh and another vs. Kaushal Kishore  Shukla (1991) 1 SCC 691.  In this case the employee Kaushal Kishore  Shukla was appointed on ad hoc basis for fixed period on 18.2.1977 as

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Assistant Auditor, which was extended on several occasions and the last  extension was granted on 21.1.1980 which was to expire on 28.2.1981.   His services were terminated on 23.9.1980.  The termination order was  challenged on the ground that certain allegations of misconduct had been  made against him regarding which an ex parte inquiry was held wherein  he was not given any opportunity of hearing.  These allegations were also  referred to in the counter affidavit, which was filed on behalf of the State  before the High Court.  It was submitted that the order of termination of  service was founded on the allegations of misconduct and the ex parte  inquiry report.  The High Court accepted the plea of the employee and  quashed the termination order.  The appeal filed by the State was allowed  by this Court and the order of the High Court was set aside with the  following observations : -         "The respondent being a temporary government  servant had no right to hold the post, and the competent  authority terminated his services by an innocuous order of  termination without casting any stigma on him.  The  termination order does not indict the respondent for any  misconduct.  The inquiry which was held against the  respondent was preliminary in nature to ascertain the  respondent’s suitability and continuance in service.  There  was no element of punitive proceedings as no charges had  been framed, no inquiry officer was appointed, no findings  were recorded, instead a preliminary inquiry was held and  on the report of the preliminary inquiry the competent  authority terminated the respondent’s services by an  innocuous order in accordance with the terms and conditions  of his service.  Mere fact that prior to the issue of order of  termination, an inquiry against the respondent in regard to  the allegations of unauthorized audit of Boys Fund was held,  does not change the nature of the order of termination into  that of punishment as after the preliminary inquiry the  competent authority took no steps to punish the respondent,  instead it exercised its power to terminate the respondent’s  services in accordance with the contract of service and the  Rules.  The allegations made against the respondent  contained in the counter-affidavit by way of defence filed on  behalf of the appellants also do not change the nature and  character of the order of termination."

11.     In S.P. Vasudeva vs. State of Haryana and others AIR 1975 SC  2292, it was held that where an order of reversion of a person who had no  right to the post, does not show ex facie that he was being reverted as a  measure of punishment or does not cast any stigma on him, the courts  will not normally go behind that order to see if there were any motivating  factors behind that order.      In Bishan Lal Gupta vs. State of Haryana and  others AIR 1978 SC 363, it was held where the intention behind an  inquiry against a probationer was not to hold a full departmental trial to  punish but a summary inquiry to determine only suitability to continue in  service of the probationer and the probationer was given ample  opportunity to answer in writing whatever was alleged against him in  show cause notices, the innocuous order of termination following such  summary inquiry could not be said to be an order of punishment which  entitled him to a full-fledged inquiry contemplated by Article 311 of the  Constitution.  In Oil and Natural Gas Commission vs. Dr. Md. S.  Iskander Ali AIR 1980 SC 1242, it was held as under: - "Where the short history of the service of the probationer  appointed in a temporary post clearly showed that his work  had never been satisfactory and he was not found suitable  for being retained in service and that was why even though  some sort of an enquiry was started, it was not proceeded  with and no punishment was inflicted on him and in these  circumstances, if the appointing authority considered it  expedient to terminate the services of the probationer it  could not be said that the order of termination attracted the

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provisions of Article 311, when the appointing authority had  the right to terminate the service without assigning any  reasons."

       These are all decisions by Benches of three learned Judges. 12.     The same question was considered in considerable detail in State  of Maharashtra vs. Veerappa R. Saboji AIR 1980 SC 42, and it was  observed as under: - "Ordinarily and generally the rule laid down in most of the  cases by this Court is that you have to look to the order on  the face of it and find whether it casts any stigma on the  Government servant.  In such a case there is no presumption  that the order is arbitrary or mala fide unless a very strong  case is made out and proved by the Government servant  who challenges such an order."

       In Governing Council of Kidwai Memorial Institute of Oncology,  Bangalore vs. Dr. Pandurang Godwalkar and another, AIR 1993 SC 392,  the same principle was reiterated and it was held that where the service of  an employee is terminated during the period of probation or while his  appointment is on temporary basis, by an order of termination simpliciter  after some preliminary enquiry it cannot be held that as some enquiry had  been made against him before issuance of order of termination it really  amounted to his removal from service on a charge, as such penal in  nature. 13.     In Ravindra Kumar Misra vs. U.P. State Handloom Corporation  Ltd and another AIR 1987 SC 2408, the appellant had been appointed on  30.10.1976 and had got two promotions while still working in temporary  status and by 1982 he had been working as Deputy Production Manager.   On 22.11.1982 he was placed under suspension and the suspension order  recited that as a result of preliminary inquiries made by the Central  Manager it had come to notice that the appellant was responsible for  misconduct, dereliction of duty, mismanagement and showing fictitious  production of terrycot cloth.    The suspension order was revoked on  1.2.1983 and thereafter on 10.2.1983 a simple order terminating his  services was passed reciting that his services were no more required and  his service would be deemed to be terminated from the date of receipt of  the notice.  It was further mentioned therein that he would be entitled to  receive one month’s salary in lieu of notice period.  The termination  order was challenged by the appellant on the ground that the same was  punitive in nature, which was also demonstrated from the fact that shortly  before the order of termination a suspension order had been passed  wherein a specific charge of misconduct against him was mentioned.   After referring to several earlier decisions this Court repelled the  challenge made by the employee by observing as under in paragraph 6 of  the Report: -  "................In several authoritative pronouncements of this  Court, the concept of ’motive’ and ’foundation’ has been  brought in for finding out the effect of the order of  termination.  If the delinquency of the officer in temporary  service is taken as the operating motive in terminating the  service, the order is not considered as punitive while if the  order of termination is founded upon it, the termination is  considered to be a punitive action.  This is so on account of  the fact that it is necessary for every employer to assess the  service of the temporary incumbent in order to find out as to  whether he should be confirmed in his appointment or his  services should be terminated.  It may also be necessary to  find out whether the officer should be tried for some more  time on temporary basis.  Since both in regard to a  temporary employee or an officiating employee in a higher  post such an assessment would be necessary, merely  because the appropriate authority proceeds to make an

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assessment and leaves a record of its views, the same would  not be available to be utilized to make the order of  termination following such assessment, punitive in  character."

14.     In Krishnadevaraya Education Trust and another vs. L.A.  Balakrishna (2001) 9 SCC 319, it was held that a probationer is on test  and if his services are found not be satisfactory, the employer has, in  terms of the letter of appointment, the right to terminate the services.   The mere fact that in response to the challenge the employer states that  the services were not satisfactory, would not ipso facto mean that the  services of the probationer were terminated by way of punishment. 15.     Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical  Sciences and another (2002) 1 SCC 520, is a recent decision of this Court  where, after referring to large number of earlier decisions, the law on the  point has been very clearly elucidated in the following manner :-         "One of the judicially evolved tests to determine  whether in substance an order of termination is punitive is to  see whether prior to the termination there was (a) a full-scale  formal enquiry (b) into allegations involving moral turpitude  or misconduct which (c) culminated in a finding of guilt.  If  all three factors are present the termination has been held to  be punitive irrespective of the form of the termination order.   Conversely if any one of the three factors is missing the  termination has been upheld.

..........................................................................................

       Generally speaking when a probationer’s appointment  is terminated it means that the probationer is unfit for the  job, whether by reason of misconduct or ineptitude,  whatever the language used in the termination order may be.   Although strictly speaking, the stigma is implicit in the  termination, a simple termination is not stigmatic.  A  termination order which explicitly states what is implicit in  every order of termination of a probationer’s appointment, is  also not stigmatic.  In order to amount to a stigma, the order  must be in a language which imputes something over and  above mere unsuitability for the job."

16.     State of Punjab and others vs. Balbir Singh (2004) 11 SCC 743, is  a direct case on Rule 12.21 of the Rules.  Here also after considering  large number of earlier decisions the Court laid down the following  principle: -         "The order of discharge simpliciter, prima facie, is not  punitive, it being in terms of Punjab Police Rule 12.21 but  the question still is whether the incident which led to the  passing of that order was motive or inducing factor or was  the foundation of order of discharge.         In order to determine whether the misconduct is  motive or foundation of order of termination, the test to be  applied is to ask the question as to what was the "object of  the enquiry".  If an enquiry or an assessment is done with  the object of finding out any misconduct on the part of the  employee and for that reason his services are terminated,  then it would be punitive in nature.  On the other hand, if  such an enquiry or an assessment is aimed at determining  the suitability of an employee for a particular job, such  termination would be termination simpliciter and not  punitive in nature.  The other test to determine whether, in  substance, the order of discharge is punitive in nature is to  ascertain the "nature of enquiry" i.e. whether the termination  is preceded by a full-scale formal enquiry into allegations  involving misconduct on the part of the respondent, which  culminated in the finding of guilt, and the "purpose of the

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enquiry" i.e. whether the purpose of the enquiry is to find  out any misconduct on the part of the employee or it is  aimed at finding out as to the respondent being unlikely to  prove as an efficient police officer."

17.     The learned counsel for the respondent has also placed reliance on  Smt. Rajinder Kaur vs. Stat of Punjab and another (1986) 4 SCC 141,  which is a decision by a Bench of two learned Judges.  In this case the  appellant was appointed as a lady constable on 7.5.1979 and after  completion of training she was posted in the police lines in March, 1980.   The Superintendent of Police, Hoshiarpur,  discharged the appellant by  order dated 9.9.1980 under Rule 12.21 of the Rules.  The order of  discharge read as under: -

       "Lady Constable Rajinder Kaur No. 732 is unlikely to  prove an efficient police officer.  She is, therefore, hereby  discharged from the Police Force under Punjab Police Rules  12.21 with effect from today (September 9, 1980).         Issue order in O.R. and all concerned to notice and  necessary action."

The main contention on behalf of the appellant was that an inquiry was  made by the Deputy Superintendent of Police as to the character of the  appellant into the allegation that she stayed at Mahalpur for one or two  nights with one constable Jaswant Singh and evidence was recorded  therein without giving the appellant any opportunity of hearing or to  cross-examine the witnesses and the impugned order was made after  completion of the investigation on the ground of her misconduct which  cast a stigma on her service career.  This contention was accepted and on  the finding that though the order of discharge stated to be made in  accordance with the provisions of Rule 12.21 of the Rules, it was really  made on the basis of the misconduct as found on inquiry into the  allegation behind her back and further that though the order was couched  in innocuous terms, the order was merely camouflage for an order of  dismissal from service on the ground of misconduct, the impugned order  of discharge was set aside.  With respects we are unable to agree with the  view taken in this case.  As discussed earlier the consistent view of this  Court is that even if some kind of preliminary inquiry or fact finding  inquiry is held in which the employee is not afforded an opportunity of  hearing, the order of discharge of a probationer cannot be treated as an  order of punishment as the appointing authority has to necessarily  ascertain all the relevant facts before taking a decision whether the  probationer should be retained in service or not.  The decision in Smt.  Rajinder Kaur vs. State of Punjab is hereby over-ruled.

18.     It must be borne in mind that no employee whether a probationer  or temporary will be discharged or reverted, arbitrarily, without any  rhyme or reason.  Where a superior officer, in order to satisfy himself  whether the employee concerned should be continued in service or not  makes inquiries for this purpose, it would be wrong to hold that the  inquiry which was held, was really intended for the purpose of imposing  punishment.  If in every case where some kind of fact finding inquiry is  made, wherein the employee is either  given an opportunity to explain or  the inquiry is held behind his back, it is held that the order of discharge  or termination from service is punitive in nature, even a bona fide attempt  by the superior officer to decide whether the employee concerned should  be retained in service or not would run the risk of being dubbed as an  order of punishment.  The decision to discharge a probationer during the  period of probation or the order to terminate the service of a temporary  employee is taken by the appointing authority or administrative heads of  various departments, who are not judicially trained people. The superior  authorities of the departments have to take work from an employee and

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they are the best people to judge whether an employee should be  continued in service and made a permanent employee or not having  regard to his performance, conduct and overall suitability for the job.  As  mentioned earlier a probationer is on test and a temporary employee has  no right to the post.  If mere holding of an inquiry to ascertain the  relevant facts for arriving at a decision on objective considerations  whether to continue the employee in service or to make him permanent is  treated as an inquiry "for the purpose of imposing punishment" and an  order of discharge or termination of service as a result thereof "punitive  in character", the fundamental difference between a probationer or a  temporary employee and a permanent employee would be completely  obliterated, which would be wholly wrong.

19.     In the present case neither any formal departmental inquiry nor any  preliminary fact finding inquiry had been held and a simple order of  discharge had been passed.  The High Court has built an edifice on the  basis of a statement made in the written statement that the respondent  was habitual absentee during his short period of service and has  concluded therefrom that it was his absence from duty that weighed in  the mind of Senior Superintendent of Police as absence from duty is a  misconduct.  The High Court has further gone on to hold that there is  direct nexus between the order of discharge of the respondent from  service and his absence from duty and, therefore, the order discharging  him from service will be viewed as punitive in nature calling for a regular  inquiry under Rule 16.24 of the Rules.  We are of the opinion that the  High Court has gone completely wrong in drawing the inference that the  order of discharge dated 16.3.1990 was, in fact, based upon the  misconduct and was, therefore, punitive in nature, which should have  been preceded by a regular departmental inquiry.  There cannot be any  doubt that the respondent was on probation having been appointed about  eight months back.  As observed in Ajit Singh and others etc. vs. State of  Punjab and another (supra) the period of probation gives time and  opportunity to the employer to watch the work ability, efficiency,  sincerity and competence of the servant and if he is found not suitable for  the post, the master reserves a right to dispense with his service without  anything more during or at the end of the prescribed period, which is  styled as period of probation.  The mere holding of preliminary inquiry  where explanation is called from an employee would not make an  otherwise innocuous order of discharge or termination of service punitive  in nature.  Therefore, the High Court was clearly in error in holding that  the respondent’s absence from duty was the foundation of the order,  which necessitated an inquiry as envisaged under Rule 16.24(ix) of the  Rules.

20.     For the reasons discussed above, we are of the opinion that the  view taken by the High Court and also by the lower Courts is wholly  erroneous in law and must be set aside.  The appeal is accordingly  allowed and the judgment and decree passed by the High Court and also  by the learned sub-Judge and learned Additional District Judge are set  aside.  The suit filed by the plaintiff-respondent is dismissed. 21.     No costs.