Regular Second Appeal No. 2105 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2105 of 1987 DATE OF DECISION: April 22, 2010 State of Punjab .....Petitioner VERSUS Pragat Singh ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Ms. Ambika Luthra, AAG, Punjab for the State. None for the respondent. ***** RANJIT SINGH, J. Aggrieved against the judgment passed by the trial Court as well as by the First Appellate Court, the State has filed this present Regular Second Appeal. The issue involved relates to discharge of respondent-plaintiff, Pargat Singh, who was enrolled as Constable in Punjab Police on 19.10.1981. While undergoing training as a recruit, he received intimation on 5.4.1982 that his grandfather was ill. He applied for leave, which was declined. Despite that, he left the place of training to see his grandfather. As per the respondent- plaintiff his grandfather remained under treatment from 7.4.1982 to 16.4.1982 and he accordingly joined back his training on 18.4.1982. Regular Second Appeal No. 2105 of 1987 2 On 30.04.1982, the appellant discharged the respondent-plaintiff from service under Rule 12.21 of Punjab Police Rules (hereinafter referred to as 'Rules') on the ground that he was not likely to prove an efficient police officer. The period of absence from 5.4.1982 to 18.4.1982 was directed to be treated as leave without pay. He accordingly challenged this order on the ground that he was not afforded any opportunity of hearing before passing the order of discharge. The appellant-State appeared and filed written statement contesting the suit. It was urged that the suit was not maintainable in the form it was filed. On merit, it was pleaded that the respondent- plaintiff had left his duty and had become absent without taking any leave or permission and thus had remained absent for 13 days and 15 hours. It was accordingly viewed that he was not likely to become an efficient and good police officer. The order of discharge was accordingly justified. The trial proceeded on the following issues:- 1. Whether the order dated 30.04.1982, passed by the Commandant 27th Battalion, P.A.P. Jalandhar, is illegal, void and against the rights of the plaintiff? OPP. 2. Whether the suit is not justiciable? OPD 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether a valid and legal notice has been served on the defendant? If not its effect. OPP. 5. Relief. Regular Second Appeal No. 2105 of 1987 3 The trial Court decided all the issues in favour of the plaintiff and thus decreed the suit. The State thereafter filed an appeal against the same. The First Appellate Court after making reference to the impugned order came to take a view that the order was passed on account of absence and thus was stigmatic. The order was accordingly held illegal and thus vitiated. It was also observed that no opportunity was afforded to the plaintiff to prove that he was absent without sufficient cause and that he was not charge sheeted. The State counsel would submit that the view taken by the trial Court as well as by the First Appellate Court cannot be sustained. As per the counsel, the impugned order cannot be termed as stigmatic in any manner and as such there was no requirement of holding an inquiry before innocuously discharging the respondent- plaintiff from service by invoking provisions of Rule 12.21 of the rules. I have perused the impugned order which reads as under: “Constable Pargat Singh No. 27/714, is unlikely to prove an efficient Police Officer. He is, therefore, discharged from served under Punjab Police Rule 12.21 w.e.f. 20.04.1982. His absence period from 5.4.1982 to 18.4.1982, is treated as leave without pay.” No doubt reference is made to the period of absence while directing that the same be treated as leave without pay but it cannot be said that discharge was on account of the allegations of absence. The order clearly recited that respondent-plaintiff was Regular Second Appeal No. 2105 of 1987 4 unlikely to prove an efficient Police Officer and, therefore, he stood discharged under Police Rule 12.21 of the rules w.e.f. 20.4.1982. The absence from duty may have been a motive for order discharging but certainly was not the foundation of the impugned order. It has by now consistently been held that when any misconduct is a motive for passing the impugned order then it cannot be termed as stigmatic. It is only when the misconduct is found to be a foundation for passing the order that the order may be termed as stigmatic and thus there may be a requirement to hold enquiry before passing the order. This issue has elaborately been dealt with by this Court while deciding Civil Writ Petition No. 2506 of 2009 titled as Col. (Retd.) Shiv Shakti Mahajan Vs. State of Haryana and others and subsequently in Regular Second Appeal No. 1274 of 1984 titled as Amarjit Singh versus State of Punjab. It is observed as under:- “ To know if the order is stigmatic, it has to be seen as to what is the foundation of this order. If the reason for which the order is passed was only a motive or inducing factor, then it can not be termed as a stigmatic order. The Hon'ble Supreme Court in the case of Radhey Shyam Gupta Vs. U.P. State Agro Industries corporation Ltd. And another, (1999) 2 SCC 21, observed that there are two lines of cases, which deal with the question. In certain cases of temporary servants and probationers, the Court has taken a view that if an exparte enquiry or report is the motive for the termination order, then the termination is Regular Second Appeal No. 2105 of 1987 5 not to be called punitive merely because the principles of natural justice have not been followed. The second line of cases are where the Court has held that the facts revealed in enquiry are not the motive but the foundation of the termination of services of the temporary servants or probationers and hence, punitive and, thus, the principles of natural justice would have to be followed. After dealing with all aspects in this regard and after making reference to two lines of cases decided in the field, it is finally observed:- “It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by Shah, J. (as he then was) in Ram Narayan Das's case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a Regular Second Appeal No. 2105 of 1987 6 regular departmental inquiry. It has been so decided in Champaklal's case. The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge-memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur's case and in Benjamin's case. In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules Regular Second Appeal No. 2105 of 1987 7 was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.” In Dalbir Singh Vs. the State of Haryana, 1999 (1) SCT 470, this Court viewed that discharge from service without any mis- conduct carries no stigma and passing of such order is within the powers conferred on the commandant. The substantial question of law, “Whether the impugned order could be termed as stigmatic or was innocuous order discharging the petitioner”, thus arises in this case. Another question of law that would also arise would be as to, “Whether the absence was motive or foundation of the impugned order”. The way the order was passed can be said that absence was not the foundation of passing the impugned order and may have only been the motive. Primarily, the respondent-plaintiff was discharged on the ground that he was not likely to become an efficient police officer. This view is legally permissible or possible. A person who had joined the disciplinary force like police could not leave the training and remain absent when he made a prayer for leave, which was declined. This reason could be taken into consideration to say that he was not likely to become an efficient police officer and thus could be innocuously discharged under Rule 12.21 of the rules. The order Regular Second Appeal No. 2105 of 1987 8 cannot be termed as stigmatic either from its wording or from the background as noticed. The substantial question of law thus was not rightly considered and decided by the courts below. The impugned order, therefore, cannot be sustained. The same is set aside. The Regular Second Appeal filed by the appellant is allowed and the discharge of the respondent-plaintiff as upheld is legally valid. April 22, 2010 ( RANJIT SINGH ) rts JUDGE