IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.M. Nos. 5323-26 of 2011 & LPA No. 1997 of 2011 Date of Decision: 1.11.2011. Krishan Kumar --Appellant Versus Dy. Inspector General, Haryana Armed Police, Madhuban & another --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA. Present:- Mr. Vivek Sharma, Advocate for the appellant. *** PERMOD KOHLI.J (ORAL) C.M. Nos. 5324-25 of 2011 Heard learned counsel for the appellant. Applications are allowed. Delay in filing the appeal is condoned. C.M. Nos. 5323, 5326 of 2011 & LPA No. 1997 of 2011 This L.P.A is directed against the judgement dated 1.2.2011 passed by the learned Single Judge in CWP No.10949 of 1991. Facts of the case may be briefly noticed. Appellant herein was recruited as a Constable on 1.12.1988. He was on probation for a period of 3 years. He was discharged during probation on 6.2.1990 by passing the following order:- “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. LPA No. 1997 of 2011 -2- Sd/- Commandant, 5th Bn. HAP, Madhuban,” This order came to be challenged by the appellant in the writ petition, referred to herein above. It was inter alia contended that the appellant was falsely implicated in case FIR No. 67 dated 26.01.1990 registered at P.S. Ratia, District Hisar under sections 363, 366 and 34 I.P.C. Appellant was accused along with one Constable Jaivir Singh. The allegations against them were that they took away a girl namely Nirmala Bai. It is not in dispute that both the accused were acquitted in the aforesaid FIR by the Addl. Sessions Judge, Hisar vide order dated 9.2.1990. On his acquittal the appellant made a representation dated 27.2.1991 to the Deputy Inspector General of Police, Haryana Police, Madhuban for taking him back into service. This representation was, however, rejected vide communication dated 13.5.1991. On rejection of the representation the appellant filed the aforementioned writ petition. The contention raised before the learned Single Judge was two fold. (1) That the appellant stands acquitted from the criminal case and the order of discharge on registration of FIR, being illegal, he is entitled to be taken back to service. (2) That the order, though, apparently seems to be innocuous but is stigmatic, if, the veil is lifted and the appellant is afforded opportunity of being heard. The appellant also relied upon Rule 19.5 (1) of the Police Rules which inter alia provides for keeping the Constable under three years of supervision and reporting on intervals of six months by the Sub Inspector or Inspector under whom he is working through a Gazetted Officer to the Superintendent of Police. Based upon the aforementioned provisions, it was contended before the learned Single Judge that the order of discharge, though, apparently LPA No. 1997 of 2011 -3- seems to be innocuous was in fact stigmatic in nature as the foundation of the order is the registration of a criminal case against him. State of Haryana, however, resisted the claim of the appellant in the reply filed. It was pleaded that the co-accused of the appellant namely Jaivir Singh had earlier filed CWP No.4955 of 1991 against the order of his discharge and the said writ petition stands dismissed, the appellant cannot be treated differently as both of them were co-accused in the criminal case. We have heard learned counsel for the appellant and perused the judgement of learned Single Judge. Learned Single Judge has referred to a Full Bench judgement of this Court titled as Sher Singh Vs. State of Haryana reported as 1994(3) SCT 1, wherein it has been laid down that an employee has no right to the post during probation and if, the competent authority specifies that his working is not satisfactory or his continuation in service is not in public interest on account of his inability, misconduct or inefficiency, it can either terminate his services in accordance with the terms of appointment or the rules governing the service or it may decide to take a punitive action against him. It was further held that the authorities may decide not to initiate punitive action and discharge the employee from the service within the period of probation. Another Full Bench of this Court in case of State of Punjab and others Vs. Sukhvinder Singh reported as 2005 (3) SCT 616 approved the ratio in Sher Singh's case. Hon'ble Full Bench in Sher Singh's case also examined and considered the scope of Rule 19.5 (1), wherein following observations have been made:- LPA No. 1997 of 2011 -4- “ 37. It was also contended that the Superintendent of Police 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.” From the bare perusal of the order of discharge, we find that the order is totally innocuous and does not carry any stigma. It is not in dispute that FIR was registered against the appellant and another employee Jaivir Singh, while the appellant was on probation. This does reflect on the unsatisfactory conduct of the appellant. Hon'ble Supreme Court considered the question of discharge of a probationer in case of Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others reported as 1999 (3) SCC 60. While examining the issue whether the allegations against an employee is to be treated as foundation or the motive, it is held that where the allegations are the foundation of the order, it would be bad in law, however, where it is a case of motive, the order simplicitor of discharge from service on account of unsatisfactory conduct is legally valid. The relevant observations are contained in para 21, which reads as under:- “21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as “founded” on the allegations and will be bad. But if the enquiry was not held, no findings were arrived LPA No. 1997 of 2011 -5- at and the employer was not inclined to conduct an enquiry but at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid.” Thus, the inescapable conclusion from the ratio of the aforesaid judgement is where the discharge during the probation is on the basis of certain allegations of misconduct, the order would be punitive in nature, however, where the order only speaks of unsatisfactory work and conduct and unsuitability of the employee without assigning any reason or simply on the ground of unsatisfactory work and conduct or unsuitability, it would be valid in law. The order impugned in the petition only speaks of unsuitability and thus by no stretch of imagination can be construed to be punitive in nature even though, the motive for passing this order could be alleged criminal case against the appellant. For the above reasons, we do not find any valid ground to interfere with the order passed by the learned Single Judge. Appeal dismissed. (PERMOD KOHLI) JUDGE (TEJINDER SINGH DHINDSA) JUDGE 1.11.2011. lucky Whether to be reported? Yes.