IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 15(A) of 2003 (S/S) (Old No. 5873 (S/S) of 1997) Satyendra Kumar, S/o Shri Bal Kishan Singh, R/o Village Peela Khurd, P.O. & P.S. Naugawan Sadat, Jyotiba Phule Nagar (Amroha). ………… Petitioner Versus The State of Uttar Pradesh, Through Secretary to Government, Home Department, Civil Sectt., U.P., Lucknow & others. ……... Respondents Mr. Munish Bhardwaj, 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, order or direction in the nature of certiorari to quash the order of termination of the petitioner’s services dated 19.09.1997 as issued by the Commandant 40th Bn, Provincial Arms Constabulary, Haridwar. Brief facts giving rise to the present writ petition are that the petitioner participated in the recruitment test examination and PT IT test etc. Conducted at 24th Bn. PAC Moradabad and having been constable of PAC and posted in the company of 40th Bn. PAC Haridwar on 17.07.1993. The petitioner was imparted training of a constable of PAC at the Recruitment Training Centre of 27th Bn. PAC Sitapur where he obtained successfully the concerned training and was declared finally trained at the concerned in-service training. After passing out form the aforesaid training course the petitioner was posted as a Constable of PAC in 40th Bn. PAC Haridwar and he was serving in the said Bn. Ever since his concerned posting in 1994 to the entire satisfaction of al his departmental superiors in so far as the work and conduct of the petitioner as a Constable of PAC is concerned. The petitioner was never been served with any adverse entry or remark / commenting adversely against him regarding his inefficient working as Constable of PAC. On 22.8.1997 a show-cause notice was issued to the petitioner by which the Company Commander of D-Company of 40th Bn. PAC Haridwar asked the petitioner to show-cause against the alleged diminishing of the image of the force on account of blockage of road at about 11:00 Hrs. on 13.8.1997 within the police circle of PS Muni-Ki-Reti of district Tehri Garhwal. The show-cause notice is quoted below: ^^vki viuk fyf[kr Li"Vhdj.k nsa fd fn0 13-08- 97 dks le; 11%00 cts ds yxHkx Vªd okyksa ds lkFk iksLV <kMkokyk esa vuko”;d >xMk fd;k] ftl dkj.k fnukad 13-08-97 dks Vªd okyksa ds }kjk jksM tke fd;k x;k ftlls QkslZ dh Nfo /kwfey gqbZ rFkk vkius vuq”kklughurk dk ifjp; fn;kA viuk LiLVhdj.k vki le; ls nsa rkfd vfxze dk;Zokgh dh tk ldsA^^ The petitioner has submitted his explanation to the Company Commander explaining his conduct and during the course of the inquiry conducted by Assistant Commandant of the Battalion in the matter constable Mohan Singh, Head Constable, Home Guard Gajendra Dutt Raturi and Const. 50467 Madan Pal of B-Company also supported the contention of the petitioner mentioned in his explanation to the show-cause notice. The explanation submitted by the petitioner reads as under: ^^EkSa dk0 lrsUnz dqekj xkMZ dek.Mj uk;d yfyr eksgu }kjk jokuxh”kqnk lkeus okyh nqdku ij pk; ihus x;k FkkA pk; ihdj okilh ykSV jgk FkkA ,slk esa ,d Vªd okyk Vªd dks jksM ij ygjkrk gqvk yk jgk FkkA ,slk izrhr gks jgk Fkk fd tSlk dksbZ nq?kZVuk dj nsxkA eSus vius drZO; dks /;ku esa j[krs gq;s Vªd dks jksdus ds fy;s gkFk fn;kA eSa onhZ igus FkkA Vªd MªkbZoj us djhc 8 ehVj vkxs tkdj Vªd jksdk tc eSa Vªd MªkbZoj ds ikl x;k rks mlls iwNk fd xkMh D;ksa ugh jksdh rks mlus mYVk tokc fn;k fd ge tgkW pkgsaxs ogha xkMh jksdsaxs rqe dkSu gksrs gksA MªkbZoj “kjkc ds u”ks esa /kqr Fkk EkSus MªkbZoj dks xkMh ls uhps mrjus dks dgk rc Mªk0 xLls esa yksgs dh jkWM ysdj ftlls Vk;j [kksyrs gSa ysdj mrjk vkSj eq>ij geyk fd;kA ml le; eSa jksM+ ij vdsyk FkkA eSus Hkh vius cpko esa ekjihV dhA pkSdh ij mifLFr dk0 eksgu flag rFkk gkse xkMZ ds ,p0lh0 xtsUnz nRr jrwM+h us ekSdk; okjnkr ij esjh lgk;rk dhA mudks ns[kdj Mªk0 chp jksM+ esa [kM+h xkM+h dks NkssZM+dj Hkkx x;k ftlds dkj.k jksM+ ij tke yx x;k ftldh lwpuk izkFkhZ us ekSf[kd :Ik ls pkSdh ij iksLV bUpktZ ih0lh0 gqdqe flag jkor dk nh rFkk Fkkus ds fy, ok;ysl djk;kA Fkkuk eqfu dh jsrh ,l0vks0 egksn; us tke [kqyok;kA blds ckn Mªk0 vk;k ,l0vks0 eqfu dh jsrh rFkk eq> dk0 lrsUnz dqekj ls viuh xYrh dh ekQh ekWxus yxkA bl >xMs+ ds nkSjku izkFkhZ dh onhZ QV pqdh FkhA ,l0vks0 eqfu dh jsrh rFkk eq> dk0 lrsUnz dqeku us mldks ekQ dj fn;k^^A However, the services of the petitioner was terminated on 19.09.97 simpliciter. The termination order reads as under: fu;qfDr vuqHkkx 3 dh vf/klwpuk la[;k 20@ 1 @74 fu;qfDr 3& fnuakd 11 twu 1975 ds lkFk foKkfir m0iz0 vLFkkbZ ljdkjh lsod ¼lsok lekfIr½ fu;ekoyh 1975 ds vUrxZr v/kksgLrk{kjdrkZ Jh lrsUnz dqekj iq= Jh cky fd”ku flag] fuoklh xzke ihykdq.M] Mkd[kkuk uksxkWok lknkr] tuin eqjknkckn] vLFkkbZ dk fu0 50613 dks uksfVl nsrs gSa fd mudh lsokvksa dh vc vkxs vko”;drk ugh jg xbZ gSA bl uksfVl dh izkfIr ds fnuakd ls ,d ekl dh lekfIr ij mudh ls lekIr le>h tk;saxhA^^ The petitioner has submitted a representation on 27.09.97 against the order dated 19.09.1997 to the following effect. ^^lfou; fuosnu bl izdkj gS fd dkUl0 la0 50613 lrsUnz dqekj 20 okfguh ih0,0lh] gfj}kj Mh ny esa dk;Zjr gSaA izkFkhZ dks fnukad 22- 08-97 dks ,0lh0 egksn; ,0u0 frokjh ds vkns”k vuqlkj eq> dkUl0 dks IYkkVwu gSMDokVj ls fcuk fdlh dkj.k ds ckVkfy;u gSMDokVj cqyk;k x;kA djhc 25 fnu rd eq>ls okfguh gSMDokVj esa fM;wVh yhA eSus fnukad 16-8-91 dks dEiuh dks tkus ds fy, dgk rks eq> ,d ekg dk fcuk dkj.k crkvks uskfVl c[kkZLrxh dk vkns”k ns fn;k] tks izkFkZuk i= ds laYxu gSA ;fn izkFkhZ ls dksbZ vutkus esa xyrh gqbZ gS rks fdlh vU; vf/kdkjh }kjk tkWp djkus dh d`ik djsa] Jheku th dkUl0 ds Hkfo’; ,oa ifjokjh jksth jksVh dk loky gSA izkFkhZ dks bruh cMh ltk u nsdj ,d ekSdk vkSj iznku djus dh d`ik djsaA Jheku th dh egku d`ik gksxhA^^ Petitioner has submitted that he has served for more than 4 years and it is apparent that he has crossed the period of probation set out in the provision 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 provisions of law reproduced hereunder; but it is submitted that not 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 have not been applied in the case. Counsel for the petitioner has referred Paragraph 541(1) of the U.P. Police Regulations, the same is quoted below: “Regulation – 541(1) A recruit will be on probation from the date he beings 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 Service (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.’ Provision of Rule 3 of U.P. Temporary Government Servants (Termination of Services) Rules, 1975 dost not provide for exercise of powers of termination by the appointing authorities without the application of their won mind and on basis of directions of their superiors. As such the impugned order of termination is ab-initio void and without jurisdiction. Moreover, Rule 3 of U.P. Temporary Government Servants (Termination of Services) Rules, 1975 applies to Government Servants and the same is quoted below: 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 servant 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 shorted 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.” Petitioner has submitted that the aforesaid provision has no application in the present case as he is governed by Section 5 of the U.P. PAC Act. Relevant averments to that effect have been mentioned in paragraph 17 of the writ petition. The same is quoted below: “17. That according to the provisions of Section 5 of the U.P. P.A.C. Act, reproduced hereunder, for certain purposes and under certain contingencies, an officer of the Pradeshik Armed Constabulary is deemed to be a police Officer, subject disciplinary control etc. as such police officer subject to otherwise to the provisions of Sections 6 to 8 of the U.P. P.A.C. Act, 1948. the concerned provisions of Section 5 of the aforesaid Act are being reproduced hereunder for ready reference: “Section 5. Member of PAC to be deemed Police Officers – subject always to the provisions of 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 in force, or any rules or regulations made thereunder.” The petitioner has also referred the judgment in writ petition No. 7838 of 1987, Virendra Mishra & 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 petitioner, 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 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 also referred the judgment of Chnadra Prakash Shahi Vs State of U.P. & others reported in (2005)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 no 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 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 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 at 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 joined 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 misbehaviour and it was for this reason that the services of the appellant were terminated. The respondent 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 form pp. 21/34 to 22/33 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 used filthy language to the superior officers of the Department and he was found guilty along with others for the said misconduct and misbehaviour. Thereafter on internal p. 6 the impugned order of termination dated 19.7.1989 was passed in 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 contended that the appellant could not have been legally removed from service, except by was 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 by 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: Parhotam Lal Dhingra Vs Union of India reported in AIR 1958 SC 36). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors 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 the 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 a 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 Banerjee Vs Union of India reported in AIR 1963 SC 152 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)