HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 1541 (SS) / 2001 (Old No.7857 of 2000) Rajesh Kumar Gautam Vs The State of Uttar Pradesh. Approved for reporting. __________________ Not approved for reporting Date of decision Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 2760 of 2001 (S/S) (Old No.7857 of 2000) Rajesh Kumar Gautam, S/o Shri Ganga prasad Gautam, R/o Village Nawalpur, P.O. Maharora District Mathura. ………… Petitioner Versus The State of Uttar Pradesh, Through Secretary, Home Affairs, Govt. of U.P., Lucknow & others. ………… Respondents Mr. K.S. Verma, learned counsel for the petitioner. Learned Standing Counsel for the State. Dated: 12-03-2004 Hon’ble Rajesh Tandon, J. By the present writ petition, the petitioner has prayed for the issue of a writ of certiorari to quash the order dated 19.06.1998 and the appellate order dated 9.1.2000. Brief facts giving rise to the present writ petition are that the petitioner was enrolled as the member of PAC on 13.9.94 as a Constable from amongst the general candidate and was posted in the company of 46th Bn. PAC Task Force, Rudrapur, Udham Singh Nagar. It was alleged against the petitioner that while posted in the company post Karamhri police station Jananiya District Gajipur on 12.5.98 in the midnight while he was on Santari duty and when the duty was checked by incharge, he was found sitting and on being asked for proper duty, he suddenly provoked and abused the incharge and also pointed the rifle towards the incharge. It is submitted by the petitioner that Rule 4 of Rule 1991 has termed dismissal from service and reduction in rank as major punishment and Rule 8(2) of the Rules 1991 lays down that no Police officer shall be dismissed, removed or reduced in rank except after proper inquiry and disciplinary proceedings as contemplated by these Rules. No inquiry whatsoever has been conducted by the authorities and the services of the petitioner has been terminated taking shelter of UP Temporary Government Servants (termination of services) Rules, 1975. The termination order dated 19.06.98 is quoted below: UP Temporary Government Servants (termination of services) Rules, 1975 reads as under: ^^fu;qfDr vuqHkkx&03 dh vf/klwpuk la[;k 20@1@74& fu;qfDr&3 fnukad 11 twu] 1975 }kjk foKfIr mRrj izns”k vLFkk;h ljdkjh lsod ¼lsok lekfIr½ fu;ekoyh 1975 ds vUrxZr v/kksgLrk{kjdrkZ dk fu0 55013 jkts”k dqekj xkSre vLFkk;h dk fu0 dks uksfVl nsrs gSa fd mudh lsok;sa dh vc vkxs vkSj vko”;drk ugh jg x;h gS vkSj mudh lsaok;s bl uksfVl dh izkfIr ds fnukad ls lekIr le>h tk;saxh vkSj ;g funsZ”k nsrs gSa fd uksfVl dh ,d ekl dh izkfo/kkfur vof/k ds fy, mldh nj ij viuk osru rFkk HkRrs] ;fn dksbZ gk] /kujkf”k ds cjkcj /ku ds nkosnkj gksus ds gdnkj gksaxs] ftl nj ij og viuh lsok lekfIr ls Bhd iwoZ ij jgs FksA^^ UP Temporary Government Servants (termination of services) Rules, 1975 reads as under: “1. Short title, Commencement and application – (1) There rules may be called the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975. (2) This Rule and Rules 2, 3 & 4 shall be deemed to have come into force on 30th January, 1953, and Rule 5 shall come into force at once. (3) They shall apply to al persons holding a civil post in connection with the affairs of Uttar Pradesh and who are under the rule making control of Governor, but who do not hold a lien on permanent post under the Government of Uttar Pradesh. 2. Definition – In these rules temporary service means officiating or substantive service on a temporary post, or officiating service on a permanent post under the Uttar Pradesh Government. 3. Termination of Service – (1) Notwithstanding anything to the contrary in any existing rules or orders on the subject, the service of a Government servant in temporary service shall be liable to termination at any time by notice in writing given either by the Government servants to the appointing authority or by the appointing authority to the Government servant. (2) The period of notice shall be one month. Provided that the services of any such Government servant may be terminated forthwith, and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, in any, for period of the notice or as the case may be period by for the while such notice falls short of one month as the same rates at which he was drawing them immediately before the termination of his services; Provided further that it shall be open to the appointing authority to relieve a Government servant without any notice or accept notice for the shorter period without requiring the Government servant to pay any penalty in lieu of notice. Provided also that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated shall be effective only if it is accepted by the appointing authority, provided in the case of a contemplated disciplinary proceeding the Government servant is informed of the non-acceptance of his notice before the expiry of that notice.” Learned counsel for the petitioner has that Rule 1(3) of the Rules 1975 specifically lays down that the rule shall apply to all persons holding a Civil post in connection with the affairs of UP and the petitioner was not holding a Civil post and his service are governed by the police Act, PAC Act and the Rules framed thereunder. The petitioner has further submitted that Rule 2 of the Rules 1975 defines temporary service which means officiating or substantive service on a temporary post or officiating service on a permanent post under UP Government and the petitioner was neither officiating on a temporary post nor he was officiating on a permanent post rather he had been selected to the PAC Force after adopting due process for selection and has been enrolled on permanent post of a Constable not liable to be terminated under Rule 1975. The petitioner has moved a writ petition No. 20771/98, wherein Hon’ble Mr. Justice V.M. Sahai was pleased to dispose of the writ petition vide judgment and order dated 25.10.99 directing the petitioner to prefer an appeal and the appellate authority to dispose of the appeal within 2 months. The judgment dated 25.10.99 is quoted below: “Heard Mr. M.D. Misra learned counsel for the petitioner and the learned standing counsel appearing for the respondent. Against the impugned order of termination dated 19.6.98 the petitioner has got alternative remedy of filing a statutory appeal. In case the petitioner filed an appeal before the appellate authority within a period of six weeks the same shall be treated to be within time by the appellate authority and he shall decide the same within a further period of two months. Subject to the observations made above, the writ petition is dismissed on the ground of alternative remedy.” Then the petitioner preferred an appeal, but he Deputy Inspector General of Police, PAC, Moradabad dismissed the appeal vide order dated 9.1.2000. Then the petitioner approached this Hon’ble Court by way of this writ petition. Petitioner has stated that he has crossed the period of probation set out in the provisions of paragraph 541(1) of the U.P. Police Regulations, which required service of written show-cause notice against intention of discharging the petitioner and obtaining of the explanation of the incumbent and due consideration of the same, as per wordings of the said provision of law reproduced hereunder; but it is submitted that no such notice has been given to the petitioner calling upon him to submit his explanation against his proposed discharge and as such the provisions of paragraph 541(1) of the U.P. Police Regulations are not applicable in this case. Paragraph 541(1) of the U.P. Police Regulations is quoted below: “Regulation – 541(1) A recruit will be on probation from the date he begins to officiate in a clear vacancy. The period of probation will be two years except in the following cases: x x x x x x In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with the service. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge. Every order passed by a Superintendent under Sub- paragraph (2) above shall, subject to the control of the Deputy Inspector General be final.” Rule 55(B) of the Civil Services (Classification, Control & Appeal) Rules reads as under: ‘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 his 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 employment.’ Learned counsel for the petitioner has submitted that the provisions of Rule 3 of U.P. Temporary Government Servants (Termination of Services) Rules, 1975 does not provide for exercise of powers of termination by the appointing authorities without the application of their own mind and on basis of directions of their superiors. As such the impugned order of termination is ab-initio void and without jurisdiction. Petitioner has submitted that Rule 3 of U.P. Temporary Government Servants (Termination of Services) Rules, 1975 has no application in the present case as he is governed by Section 5 of the U.P. PAC Act. Section 5 of the U.P. PAC Act is quoted below: “Section 5. Member of PAC to be deemed Police Officers – subject always to the provisions Section 6 to 8 every member of the Pradeshik Armed Constabulary shall upon his appointment and as long as he continue to be a member thereof, be deemed to be a Police Officer and, subject to any terms, conditions and restrictions, as may be prescribed, to have and be subject to, in so far as they are not inconsistent with this Act or any rules made thereunder, all the powers, privileges, liabilities, penalties, punishments and protection as a Police Officer duly enrolled has or is subject to by virtue of the Police Act 1861, or any other law for the time being n force, or any rules or regulations made thereunder.” The petitioner has also referred the judgment in writ petition No. 7838 of 1987, Virendra Misra & two others Vs State of U.P. & others, dated 25.2.1991, wherein Hon’ble Mr. Justice S.N. Sahay was pleased to pass the order to the following effect: “The aforesaid provisions intimates that no person who is enrolled or in appointment to be an officer of the PAC can be discharged except in accordance with the provisions of the aforesaid Act. There is no denial of the fact that the allegement regarding that of unfair means in the examination were the foundation for passing the impugned orders of termination of a order against the petitioners. It is important that there is no reference in the impugned orders. In the circumstances it was necessary to follow order. In this order provisions prescribed by para 541(2) of the UP Police Regulations and to supply the petitioner with specific complaints and grounds on which it was proposed to discharge them and to call upon to show cause as to why he should not be discharged. In Police Regulations Para 541(2) enshrined the principles of anti alteram in sortem and even the provisions of para 541(2) not in terms apply to the petitioner, no order of discharge or termination of the petitioner. No order of discharge or termination of the service could have been passed without affording an opportunity to the petitioner to make representation and without considering the same. It has not been shown that any such opportunity was afforded to the petitioners, the impugned orders are therefore illegal and cannot be sustained on the basis of the fact that they passed under purpose to be orders termination of services simpliciter passed under the UP Temporary Government Servants (Termination of Service) Rules, 1975. The writ petition is allowed and the impugned orders dated October 31, 1987 contained in Annexure No. 1 to 3 to the writ petition passed by opposite party No. 3 are hereby quashed. Parties shall bear their own costs.” Counsel for the petitioner has stated that since the impugned order refers to the Temporary Government Servant Rules, therefore the termination order is wholly illegal and the case is fully covered by the aforesaid judgment. Counsel for the petitioner has referred the judgment of Chandra Prakash Shahi Vs State of U.P. & others reported in (2000)5 Supreme Court Cases 152, in which it has been held as under: “3. But, as we shall presently see, the law, on account of recent judgments concerning the services of a probationer, is fairly well settled and there is not cause for being confounded or bewildered. The perplexity which, at one time, surrounded the torrid question involved in this case has yielded to the clarity of reasons propounded by this Court from time to time in recent times to which a reference shall be made during the course of this discussion. 4. The appellant was recruited on 1.10.1985 as a Constable in the 34th Battalion, Pradeshik Armed Constabulary, UP under the UP Pradeshik Armed Constabulary Act, 1948. He Completed his training on 6.9.1986 and was, thereafter, placed on probation for a period of two years. He completed his period of probation on 5.9.1988 but a year later, on 19.7.1989, his services were terminated by a simple notice in terms of Rule 3 of the UP Temporary Government Servants (Termination of Service) Rules, 1975. The order of termination was challenged by the appellant before the UP Public Service Tribunal which, by its judgment dated 18.1.1993, allowed the claim petition and set aside the order dated 19.07.1989 by which the services of the appellant were terminated. Respondent No. 1 and 2, thereafter, approached the High Court through a writ petition which was allowed on 27.11.1997 and the judgment passed by the Tribunal was set aside. 6. Learned counsel for the respondents has, on the contrary, contended that the appellant was a temporary employee and, therefore, his services could be terminated at any time by giving him a month’s notice in terms of the UP Temporary Government Servants (Termination of Service) Rules, 1975. In the counter affidavit filed before the Tribunal before which the order dated 19-07-1989 (termination order) was challenged by the appellant, it was, inter alia, stated that on 24.6.1989 while camping a Ghat Varanasi for Flood Relief Training, a quarrel had taken place between two Constables as a result of which Constable Arun Prakas Tewari used filthy and unparliamentary language against Constable Radhey Shyam Pandey. He also caused injuries to Constable Radhey Shyam Pandey by kicks and fists. He was joined by Constable Rajesh Kumar Pandey. Other Constables also jointed the fray. A preliminary inquiry was conducted by Shri Kailash Chaube, Assistant Commandant, PAC and a few Constables including the appellant were found guilty of indiscipline and misbehavior and it was for this reasons that the services of the appellant were terminated. The respondents admitted in the counter affidavit that there was no adverse material against the appellant before the incident in question. The original records which were produced before the Tribunal and were scrutinised by it indicated that the order by which the services of the appellant were terminated was passed on account of his alleged involvement in the quarrel between the Constables at the Ghat Varanasi Camp. The Tribunal has found as under: ‘The preliminary inquiry File No. Ja-2/89 relating to the petitioner and other Constables of the 34th Battalion, PAC, Varanasi from pp. 21/33 dated 26.6.1989 shows that the inquiry was conducted by Shri Kailash Chaube, Assistant Commandant, 34th Battalion, PAC, Varanasi and in the preliminary inquiry report he concluded at pp. 21/34 to 22/37 that the petitioner along with others had indulged in a misconduct of hurling blows and used filthy language to the superior officers of the Department and he was found guilty along with others of the said misconduct and misbehaviour. Thereafter on internal p. 6 impugned order of termination dated 19.7.1989 was passed respect of the petitioner and on the same day he was served the copy of the order.’ 7. It was in view of the above finding that the termination order was held to be punitive in nature was consequently set aside by the Tribunal but the High Court relying upon the decision of this Court in State of U.P. Vs Kaushal Kishore Shukla quashed the order of the Tribunal. 8. The first contention of the learned counsel for the appellant is about the status of the appellant. Learned counsel has contend that the appellant could not have been legally removed from service, except by way of disciplinary action in accordance with the requirements of Article 311(2) of the Constitution. It is contended that after completion of the period of probation, the appellant had acquired “permanent” status and, therefore, his services could not have been terminated by a mere notice or a month’s pay in lieu thereof. This argument cannot be accepted. 9. An assertion that on completion of the period of probation the appellant had acquired “permanent” status is based on a misreading of the provisions of para 541 of the UP Police Regulations, relevant portion of which is quoted below: ‘541 (1) Recruits will be on probation for a period of two years, except that – (a) Those recruited directly in the Criminal Investigation Department or District Intelligence Staff will be on probation for three years, and (b) those transferred to the Mounted Police will be governed by the directions contained in para 84 of the Police Regulations. If during the period of probation their conduct and work have been satisfactory and they are approved by the Deputy Inspector General of Police at the end of the period of probation for service in the force the Superintendent of Police will confirm them in their appointment.’ 10. A perusal of the above provision would indicate that the period of probation is two years. The Regulation is silent as to the maximum period beyond which the period of probation cannot be extended. In the absence of this prohibition, even if the appellant completed two years of probationary period successfully and without any blemish, his period of probation shall be treated to have been extended as a “permanent” status can be acquired only be means of a specific order of confirmation. 11. This Court in State of Punjab Vs Dharam Singh reported in AIR 1968 SC 1210 ruled out the proposition of automatic confirmation on completion of the period of probation. This Court ruled that the “permanent” status can be acquired only by a specific order confirming the employee on the post held by him on probation. To the same effect is the decision in Pratap Singh Vs Union Territory of Chandigarh reported in (1979)4 SCC 263. In Municipal Corpn. Raipur Vs Ashok Kumar Misra Reported in (1991) 3 SCC 325 the same principles were reiterated. In view of the above, the contention that the appellant had acquired “permanent” status cannot be accepted. His status was that of a probationer. 12. Now, it is well settled that the temporary government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month’s notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The courts can, therefore, lift the veil of an innocuously-worded order to look at the real face of the order and to find out whether it is as innocent as worded. (See: Parshotam Lal Dhingra Vs Union of India reported in AIR 1958 SC 36). It was explained in this decisions that inefficiency, negligence or misconduct may have been the factory for inducing the Government to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but he motive by itself does not make the order punitive unless the order was “founded” on those factors or other disqualifications. 13. Following the decision of Parshotam Lal Dhingra’s case this Court in State of Bihar Vs Gopi Kishore Prasad reported in AIR 1969 SC 689 held that if the services of a probationer are terminated on the basis of an inquiry into the allegations of misconduct and inefficiency, the order would be punitive. It was pointed out that in the case of probationer, it is always open to the Government to hold an inquiry merely to assess the merits of the employee to find out whether he was fit to be retained in service and confirmed. In another case relating to a probationer, namely, in State of Orissa Vs Ram Narayan Das reported in AIR 1961 SC 177 where the services were governed by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules which provided that where the services of a probationer were intended to be terminated either during the period of probation or at the end of that period for any fault or on account of his unsuitability, he would be apprised of the grounds of unsuitability and would also be afforded an opportunity to show cause against it before orders are passed against him, it was held that the termination order would not become punitive merely because of an antecedent inquiry but the real object or purpose of the inquiry had to be found out whether it was held merely to assess the general unsuitability of the employee or it was held into charges of misconduct or inefficiency etc. In Ranendra Chandra Baneerjee Vs Union of India reported in AIR 1963 SC 1552 which against was a case relating to a probationer, it was held that on account of Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules if the inquiry was held for a limited purpose of finding out whether the employee was fit to be retained or not, the said inquiry would not make the order punitive as the inquiry could not be related to any misconduct of the employee. This view was reiterated in Jagdish Mitter Vs Union of India reported in AIR 1964 SC 449. In Madan Gopal Vs State of Punjab reported in AIR 1963 SC 531 the order by which the services of the employee were terminated was an order simpliciter in nature, which was innocuously worded, but it was held by this Court that the form of the order was not decisive and the Court could go behind that order to find out whether it was founded upon the misconduct of the employee. 15. In another significant decision in State of Punjab Vs Sukh Raj Bahadur reported in AIR 1968 SC 1089 where the respondent, who was officiating in the Punjab Civil Service (Executive Branch) was reverted to his substantive post in the Delhi Administration after issuing him a charge-sheet to which a reply was submitted by