IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.10949 of 1991 Date of decision: 1st February, 2011 Krishan Kumar … Petitioner Versus Dy. Inspector General, Haryana Armed Police, Madhuban and another … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ramesh Hooda, Advocate for the petitioner. Ms. Kirti Singh, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. Petitioner was appointed as a Constable on 1st December, 1988. During the three years’ period of probation, he was discharged from service on 6th February, 1990 by passing an order (Annexure P-1), which reads as under: “Order No._______ Dt.______ 1990(.) Constable Krishan Kumar, No.5/716 is hereby discharged from service with immediate effect under Rule P.P.R. 12.21 as he is found unlikely to prove an efficient police officer. Sd/- Commandant, 5th Bn. HAP, Madhuban, Endst. No. 2186-92/051 Dt. 6.2.90 XXXX XXXX XXXX XXXX” In the present writ petition, the prayer is that a writ in the nature of certiorari be issued and the above said order be quashed. Civil Writ Petition No.10949 of 1991 It is projected by the petitioner that he was falsely implicated in case FIR No.67 dated 26.01.1990 registered at Police Station Ratia, District Hissar under Sections 363/366/34 IPC. In the FIR, it was alleged that petitioner along with one Constable Jaivir Singh, took away a girl, namely Nirmala Bai. Therefore, due to registration of that case, impugned order (Annexure P-1) was passed. Mr. Ramesh Hooda, Advocate appearing on behalf of the petitioner, has drawn my attention to the judgment (Annexure P-2) dated 9th February, 1991 rendered by Additional Sessions Judge, Hissar, who recorded acquittal of the accused. A reference has been made to this judgment, to say that no witness appeared and since prosecution evidence was lacking, therefore, acquittal was recorded. It is submitted that thereafter, a representation dated 27th February, 1991 (Annexure P-3) was submitted to the Deputy Inspector General, Haryana Police, Madhuban for being taken back in service, but the same, being without any basis, was rejected vide a communication dated 13th May, 1991 (Annexure P-4). Mr. Hooda has canvassed before me that the order (Annexure P-1) is not an innocuous order. Learned counsel has stated that this Court should lift the veil and see through, that the reason for passing the impugned order (Annexure P-1) was registration of a criminal case and that being so, the order should be construed as stigmatic in nature and an opportunity of hearing ought to have been afforded to the petitioner. It is submitted that principle of natural justice demands that an enquiry in accordance with the procedure, as laid down in rule 16.24 of the Punjab Police Rules, 1934 (hereinafter referred to as, ‘the Rules’) should have been conducted. In support of this argument, reliance has been placed upon ‘Rajinder Kaur v. Punjab State and another’ AIR 1986 Supreme Court 2 Civil Writ Petition No.10949 of 1991 1790, wherein it was held that the impugned order of discharge though couched in innocuous terms, is merely a camouflage for an order of dismissal from service on the ground of misconduct. Therefore, their Lordships held that the order has been passed without serving the delinquent employee any chargesheet, without asking any explanation and without giving any opportunity to show cause against the purported order of dismissal from service, and without giving any opportunity to cross- examine the witnesses examined. Therefore, the order was passed in contravention of the provisions of Article 311(2) of the Constitution of India. A further reliance has been placed upon ‘Punjab State and another v. Kamlesh Kumari’ 1988(1) SLR 614. Counsel has also relied upon a judgment rendered by this Court in Civil Writ Petition No. 2127 of 1994 titled as ‘Gurmit Singh v. State of Punjab and others’ decided on August 16, 2010. Counsel for the petitioner has stated that a similar finding should also be returned in favour of the petitioner by this Court. Mr.Hooda has laid much emphasis on Rule 19.5(1) of the Rules, which reads as under: “19.5(1) The fact that a recruit has been passed into the ranks under rule 19.3 shall not be taken to mean that he is a fully trained constable. A constable under three years’ service is at any time liable to discharge under rule 12.21. During the whole of this period he shall be kept under close supervision and reported on at intervals of six months in form 19.5(1) by the Sub-Inspector or Inspector under whom he is working through his gazetted officer to the Superintendent of Police. The orderly head-constable shall maintain a list of constables under three years’ service. He shall submit the name of each man a month before he is due for confirmation 3 Civil Writ Petition No.10949 of 1991 to the Superintendent together with his personal file which shall contain the form 19.5(1) referred to in this rule. Gazetted Officer are expected to make themselves acquainted, as far as possible, with the characters and careers of all constables under three years’ service and shall be responsible that the names of men unlikely to make efficient police officers are brought to the notice of the Superintendent.” It is submitted by the counsel that the services of the petitioner were regularly monitored under rule 19.5 of the Rules and therefore, abruptly it cannot be said that the petitioner was not an efficient officer and thus, the impugned order of discharge (Annexure P-1) is liable to be quashed. In support of this, reliance has been placed upon ‘Punjab State v. Joginder Singh’ 1989(3) SLR 665. Ms. Kirti Singh, Deputy Advocate General, Haryana, appearing on behalf of the State, has referred to the preliminary objection No.2 of the reply, wherein it has been stated that co-accused in the criminal case, Jaivir Singh, had filed Civil Writ Petition No.4955 of 1991 in this Court and the same was dismissed on 29th August, 1991. Therefore, it is contended that the petitioner cannot be treated differently than Constable Jaivir Singh, as case of the petitioner is similar to that of Constable Jaivir Singh. No replication has been filed to controvert this assertion made by the State in its written statement. The controversy raised in the present petition is no longer res- judicata. The scope of rules 12.21 and 19.5 along with rule 16.24 of the Rules and provisions enshrined under Article 311 of the Constitution of India, was considered by a Full Bench of this Court in ‘Sher Singh v. State of Haryana’ 1994(3) SCT 1, wherein it was held that when an employee has no right to the post and the competent authority is satisfied that his work is not satisfactory or that his continuation in service is not in public interest on account of his inability, misconduct or inefficiency, it can 4 Civil Writ Petition No.10949 of 1991 either terminate his services in accordance with the terms of appointment or the rules governing the service, or it may decide to take punitive action against him. It was held that where authorities do not want to persist with the punitive action, a Constable can be discharged from the service at any time within three years from his entry into service, as for a period of three years, a Constable is under surveillance. He is being watched. He is kept under close supervision. He has no right to the post. His services are terminable at any time during the 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 above said judgment rendered by a Full Bench of this Court has found approval of Hon’ble the Apex Court in ‘State of Punjab and others v. Sukhwinder Singh’ 2005(3) SCT 616. Approving the mandate of law laid down in Sher Singh’s case (supra), their Lordships of Hon’ble the Apex Court observed as under: “7. A Full Bench of Punjab and Haryana High Court in Sher Singh v. State of Haryana and others, 1994(3) SCT 1 (P&H) : 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- 5 Civil Writ Petition No.10949 of 1991 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 v. 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 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 6 Civil Writ Petition No.10949 of 1991 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. v. State of Punjab and another, AIR 1983 SC 494).” Furthermore, the Full Bench of this Court in Sher Singh’s case (supra), considered the scope of Rule 19.5(1) and held that opinion of subordinate officials is not binding upon Superintendent of Police, who is competent to discharge the Constable from the service. It was held as under: “37. It was also contended that the Superintendent of Police can determine the suitability or otherwise of a constable only on the basis of the periodic reports recorded under Rule 19.5. We find no basis for such a contention. As already observed, the reports under Rule 19.5 have to be recorded and submitted by the Sub-Inspector or the Inspector under whom the constable is working. The assessment recorded by these officers is not binding on the Superintendent of Police. Furthermore, even in a case where the periodic reports are good, some material can come to the notice of the authority which may show that the concerned constable is not likely to become a good police officer. There may be a complaint against a constable which may show that his integrity is doubtful or that he is not disciplined. If on the basis of such a material, the Superintendent of Police forms an opinion that the constable is unlikely to become an efficient police officer, there is nothing which debars him from passing an order of discharge under Rule 12.21.” In view of the position of law enunciated above, the arguments advanced by counsel for the petitioner already stand repelled in Sher 7 Civil Writ Petition No.10949 of 1991 Singh’s case and Sukhwinder Singh’s case (supra), and the judgments relied upon by the counsel do not hold field. Thus, this Court cannot come to the rescue of the petitioner and the present petition is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE February 1, 2011 rps 8