IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 3172 of 2010 Date of Decision: 19.3.2010. Raj Kumar --Petitioner Versus State of Haryana and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Y.P. Singla, Advocate for the petitioner. *** PERMOD KOHLI.J (ORAL) The petitioner was recruited as Constable on 28.11.2003. He was allotted constabulary no. 1421/SPT. Now the petitioner has been discharged from the service vide order dated 17.11.2006 passed by respondent no.4 under Rule 12.21 of the Punjab Police Rules as applicable to the State of Haryana on the ground that he has been found unlikely to prove an efficient police officer. It is this order which is under challenge in the present petition. The petitioner has relied upon notings dated 17.11.2006 (Annexure P-2) wherein certain remarks have been recorded in respect to the conduct of the petitioner, which read as under:- “ A habitual absentee, Const. Raj Kumar 1421 remained posted in Sonepat after transfer from 3rd BN HAP and is continuing to remain absent. He has been advised by L.O. Police Lines and MHC on 6.1.06 and 24.10.06 to rejoin duty but has been arrogant and indulged in insubordination towards senior officers. He is unlikely to prove an efficient police officer. Put up for formal order of discharge.” CWP. No. 3172 of 2010 -2- It is stated in the writ petition that the petitioner fell ill due to liver problem on 24.10.2006 and was getting medical treatment from one Dr. Suresh Chand Manchanda, M.B.B.S, a private medical practitioner in Sirsa and was advised complete bed rest. It is accordingly, stated that due to his illness he could not inform his superiors. The petitioner has tried to explain his absence from duty in this manner. The ground to challenge the impugned order is that the impugned order is not an order simplicitor of discharge from service but in fact a removal from service on account of allegations of misconduct and is thus, violative of Article 311 (i) of the Constitution of India, he having been terminated without holding any inquiry. It is further argued that the petitioner was required to be proceeded with under Rule 16.34 of the Punjab Police Rules and other relevant provisions for terminating his service on account of the misconduct. From the impugned order Annexure P-3 it is evident that petitioner has been simply discharged from service under Punjab Police Rule 12.21, which reads as under:- “ 12.21. Discharge or Inefficients- A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment. There shall be no appeal against an order of discharge under this rule.” This rule envisages discharge from service, where in the opinion of this Court in LPA No. 37 of 2007 titled as Const. Surinder Kumar Vs. State of Haryana and others, a person cannot be proved to be an efficient police officer. With a view to formulate an opinion that a person would not prove to be an efficient police officer there must be some circumstance which may influence the thought process of the authorities. CWP. No. 3172 of 2010 -3- The authorities have recorded the same in the official noting. However, the discharge of the petitioner is not on account of any misconduct, these are definitely influenced by the conduct of the petitioner. Whenever a probationer is to be discharged, there must exist some circumstance relating to the official conduct of the employee. Otherwise, without there being anything relating to his official conduct, no probationer can be discharged. In absence of there being anything on record, the order would have been illegal and arbitrary being without any valid reasons. A similar issue came to be considered by the Hon'ble Apex Court in case of Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others reported as 1999(3) SCC 60, wherein following observations have been made:- “ 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 finding were arrived 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.” Taking into consideration the dictum of the aforesaid judgement, this Court in CWP No. 20247 of 2009 decided on 23.12.2009 CWP. No. 3172 of 2010 -4- observed as under:- “It cannot be ignored that whenever services of the probationer are dispensed with the authority has to satisfy himself about his work and conduct during the probation. Unless such an opinion is formulated dispensing with the service would become arbitrary. It is in this context that the District & Sessions Judge in his office order has recorded about the unsatisfactory work and conduct of the petitioner during the probation. Admittedly, the petitioner has not alleged any malafide against the District & Sessions Judge. In absence of there being any allegation of malafide or bias the context in which the observations have been made is to be examined. A distinction has to be drawn between motive of termination and the foundation of termination. No motive is attributed, thus, observations recorded in the order have to be construed and appears to be the ground for dispensing with the services of the petitioner during probation.” In the present case the competent authority taking into consideration the past conduct of the employee found that the petitioner would not prove to be an efficient police officer and consequently dispensed with his services during probation under Rule 12.21 of the Punjab Police Rules on the ground of unsuitability for the job. The order cannot be said to be stigmatic merely on the ground that the authorities have recorded about his conduct in a separate note sheet. No merit, petition dismissed. (PERMOD KOHLI) JUDGE 19.3.2010. lucky