IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.12.2008 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.29558 of 2006 (O.A.No.1612 of 1996) R.Murugadoss ... Petitioner Versus 1. The Secretary to Government, State of Tamil Nadu, Home (Pol.IX) Department, Secretariat, Chennai-9. 2. The Inspector General of Police, Armed Police & Training, Madras-10. 3. The Deputy Inspector General of Police, Armed Police, Tiruchy. 4. The Commandant, Tamil Nadu Special Police, VII Battalion, Palani, Dindigul Anna District. ... Respondents This petition came to be numbered by transfer of O.A.No.1612 of 1996 from the file of the Tamil Nadu Administrative Tribunal praying for Certiorarified Mandamus, to quash the termination of the probation ordered by the fourth respondent in his C.No.A4/6927/84, B.O.404/84, dated 02.08.1984 and further confirmed in the orders passed by the third respondent herein in his C.No.1523/A/89, dated 22.05.1989 and in order C.No.A2/3761/89, dated 25.12.1989 and further confirmed by the second respondent herein, in his Rc.No.B2/121/IG/AP/90, dated 11.06.1990 and the order of the first respondent herein passed in G.O.Ms.No.1515, dated 10.10.1995 and direct the respondents to treat the entire out of employment period from 02.08.1984 to till the date as duty for all purposes with all consequential service and monetary benefits. For Petitioner : Mr.S.Ravi For Respondents : Mr.C.K.Vishnu Priya, Addl. Government Pleader O R D E R A Police Constable on probation, whose services have been terminated by order, dated 02.08.1984 of the The Commandant, Tamil Nadu Special Police and confirmed by the higher authorities, has challenged the same and consequently sought for a direction to treat the entire period of out of employment from 02.08.1984 as duty with all service and monetary benefits. 2. Facts leading to the Writ Petition are as follows: The petitioner joined the Police Department as Grade II Police Constable on 28.07.1982 and sent for training. During the period of training, he fell sick and absented for duty. He was treated as deserter with effect from 09.10.1982 and instructed to report before the Commandant T.S.P. VII Battalion, Palani, fourth respondent herein on or before 08.12.1982. The petitioner reported for duty on 07.12.1982 with a representation to take him back for duty. As the Commandant was not available at the Headquarters, he was not taken back for duty on 07.12.1982. Thereafter, he appeared before the Commandant on 11.12.1982, but he refused to take him back for duty on the ground that the petitioner has reported for duty, four days after the date prescribed for reporting. Subsequently, by order, dated 14.12.1982, the petitioner was directed to report before the VII Battalion. Accordingly, he reported before the Commandant on 18.12.1982. 3. The Commandant initiated disciplinary proceedings under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. On completion of the enquiry, he was taken back for duty on 11.06.1983, after an inordinate delay of six months. Thereafter, he completed six months training on 23.01.1984 and was posted in 'B' Company at Nilgiris. He reported sick on 14.04.1884 on proper and periodical medical certificates. Though he had explained the reasons for his absence, the fourth respondent issued a show cause notice, dated 20.07.1984 to the petitioner, calling upon him to explain as to why his probation should not be terminated. In the show cause notice, the Commandant has mentioned that the petitioner's conduct and character in reporting sick continuously during the period of probation were unsatisfactory. In response to the above, the petitioner submitted his explanation, dated 23.07.1984 and assured to report for duty on 27.07.1984, after the expiry of medical leave already sanctioned. But by impugned order, dated 02.08.1984, the Commandant had abruptly terminated the probation of the petitioner with immediate effect, while he was on medical leave. 4. Aggrieved by the same, the petitioner preferred an appeal to the DIG of Police, Armed Reserve. However, by order dated 22.05.1989, the appellate authority rejected the appeal on merits, stating that no fresh points were made out. His further appeal to the Inspector General of Police, Madras, dated 03.07.1989, was remitted back to the DIG of Police, Armed Reserve and the said appeal was also dismissed on 25.12.1989. The Memorial Petition filed by the petitioner to the Inspector General of Police, Armed Reserve and Training, was dismissed on 11.06.1990 on the ground that the petitioner cannot be taken back for duty after a long time. The Mercy Petition submitted to the Government was also rejected on 10.10.1995 in G.O.Ms.No.1515, Home (Pol.IX) Department, dated 10.10.1995. Aggrieved by the same, the petitioner has preferred Original Application before the Tamil nadu Administrative Tribunal, Madras, which has been subsequently, transferred to this Court and renumbered as present Writ Petition. 5. The respondents in their counter affidavit have submitted that the petitioner was appointed as Grade II Police Constable in Tamil Nadu Special Police VII Battalion, Palani on 28.07.1982 and he was sent for training. During the course of training, he absented himself without leave or permission from 09.10.1982 for more than 21 days. Hence, he was struck off as a deserter with effect from 09.10.1982, vide Office Proceedings in B.O.804/84, dated 10.11.1982 with instructions to the petitioner to report before the Commandant with valid explanation within sixty days from the date of desertion. The petitioner reported before the Commandant on 11.06.1983. But he was not taken back for duty by the Commandant, as he was of the opinion that only after the disposal of the charge under rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, the question of taking him back for duty or otherwise would be decided. According to the respondents, there was no compulsion for the appointing authority to reinstate a deserter immediately after reporting. 6. The respondents have further submitted that the disciplinary action in P.R.No.7 of 1983 was initiated against the petitioner under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955. On completion of the enquiry, the petitioner was awarded with thea penalty of postponement of next increment for a period of one year to be spent on duty. After imposition of the penalty, the petitioner was sent for training with effect from 15.06.1983 and on completion of the same, he reported at Battalion Headquarters on 23.01.1984. He was posted at B Company at Ooty. While he was serving there, he reported sick on 14.04.1984 and entered on Medical Leave until 17.07.1984 and overstayed from 18.07.1984. The above facts were brought to the notice of the Commandant by his administrative officers then and there. Not satisfied with the overall performance of the petitioner, a show cause notice, dated 20.07.1984, the date on which, the petitioner completed two years of service. 7. Referring to Rule 15 of the Tamil Nadu Special Police Subordinate Service Rules, 1978, the respondents have submitted that every person appointed to the post, shall, from the date on which, he joins duty, be on probation for a total period of one year on duty within a continuous period of two years. According to the respondents, the petitioner, who had deserted the force from 09.10.1982 to 10.06.1983, entered on leave from 14.04.1984 and remained absent by overstaying after the expiry of leave from 18.07.1984 to 20.08.1984. 8. The respondents have further contended that it is obvious that he had absented for duty on two occasions on his own accord and paved way for termination of his probation. The show cause notice for termination of the petitioner's probation and the order, terminating the petitioner were issued by the Commandant on the basis of assessment of his conduct and character in reporting sick continuously during the period of probation as unsatisfactory. It is the further contention of the respondents that the termination of probation is not a statutory punishment, to be inflicted as a punishment under rule 3(b) of the Tamil Nadu Police Subordinate (Discipline and Appeal) Rules, 1955. For the above said reasons, they prayed for dismissal of the Writ Petition. 9. Assailing the impugned orders, Mr.Ravi, learned counsel for the petitioner submitted that having sanctioned leave for one year and 13 days, upto 17.07.1984, it is not open to the respondents to allege that the character and conduct of the petitioner in reporting seek continuously were unsatisfactory for the purpose of retention in Police Department. He further submitted that no specific instances have been cited in the impugned order alleging that the petitioner character and conduct are bad. Entering on medical leave due to illness supported by authentic medial certificate cannot be termed as unsatisfactory by the respondents and therefore, the impugned order is arbitrary and liable to be set aside. For any reasons, if the character and conduct of the petitioner is unsatisfactory, the petitioner ought to have been proceeded departmentally, based on certain formulated charges, and that he should have been with a reasonable opportunity to defend the accusation touching upon his conduct and character. In the absence of same, the termination or probation is punitive and therefore, there is a violation of the principles of natural justice. 10. Learned counsel for the petitioner further submitted that the petitioner had worked in B- Company only for a period of three months and therefore, the conclusion of the fourth respondent that the petitioner's character and conduct were unsatisfactory is without any basis. Pointing out an earlier instance in G.O.Ms.No.1056, Home dated 24.12.1965 issued in the case of Thiru.Issac Jayaseelan, Sub-Inspector of police, learned counsel for the petitioner submitted that though the said individual had remained absent for a long time, he was given an opportunity to complete his probation. Quoting yet another instance, he further submitted that the penalty of removal from service imposed on one Thiru.Rathinam, PC 2456 of Salem, was revised after 16 years. Therefore, he submitted that the respondents ought to have applied the same yardstick, while considering the case of the petitioner. 11. Placing reliance on decisions in AIR 1994 SC 215 [Union of India v. Giriraj Sharma], 1996 (II) LLJ 432 [Malkiat Singh v. State of Punjab and Ors.] and 2006 (4) MLJ 1008 [J.Patrick v. Govt. of T.N.], learned counsel for the petitioner submitted that Courts have consistently taken a view that for a period of unauthorised absence from duty, the punishment of compulsory retirement is disappropriate and therefore, even assuming that the petitioner had overstayed after medical leave, ie., from 18.08.1984, the respondents ought to have proceeded against him for the absence and that they cannot simply terminate his probation, without holding any enquiry. According to him, the respondents have failed to consider that the absence of the petitioner due to medical ground was inevitable and for that, termination is warranted. In these circumstances, he prayed that the impugned orders to be set aside. 12. Reiterating the averments made in the counter affidavit, Mrs.C.K.Vishnu Priya, learned Additional Government Pleader has made submissions to sustain the impugned order. 13. The issue as to whether a probationer has got an absolute right to hold the post under the terms of his appointment and whether his services are liable to be discharged at any time during his probation period, subject to the rules and satisfaction of the appointing authority are no longer res integra. The Government servant who is on probation can be discharged during the period of probation and such discharge would not amount to dismissal or removal within the meaning of Article 311(2) of the Constitution of India and it would not attract the constitutional protection, where the services of the probationer are terminated in accordance with the rules and not by way of punishment. 14. It is worthwhile to extract few decisions of the Supreme Court regarding termination of the probation. Let me first consider some of the cases where the termination of probationer was on the ground of absentism. 15. In Kunwar Arun Kumar v. U.P.Hill Electronics Corporation Ltd., reported in 1997 (2) SCC 191, the petitioner therein was appointed on 15.01.1990 and he was put on probation. During the period of probation, his work performance was found unsatisfactory and accordingly, by order dated 16.01.1991, his services were terminated. The employer had recorded the finding that the petitioner was regularly absent on one ground or the other. The petitioner therein challenged the order of termination before the High Court, contenting inter alia that there was a stigma. The High Court dismissed the Writ Petition. Before the Supreme Court, it was inter alia contended that the finding receorded amounts to stigma and therefore, the action taken without conducting an enquiry and giving opportunity to the petitioner was violative of Article 311(2) of the Constitution of India and the rules made thereunder. Disagreeing with the above submissions, The Supreme Court observed as follows: "5. The petitioner challenged the order of termination in the High Court. The High Court without going into the question whether or not it is a stigma, came to the conclusion that the respondents had totally lost confidence in the appellant and that he was totally unsuitable for the job for which he was employed and, therefore, he was found not entitled to any enquiry. Consequently, it dismissed the writ petition. Shri Sehgal, learned Senior Counsel for the petitioner, contends that the finding recorded amounts to a stigma; action taken without conducting enquiry and giving an opportunity to the petitioner, is violative of Article 311(2) of the Constitution and the rules made thereunder. Therefore, he is entitled to an opportunity of being heard and be dismissed only on the ground of misconduct and not by termination simpliciter. We do not agree with the learned counsel. The reasons mentioned in the order may be a motive and not a foundation as a ground for dismissal. During the period of probation, the authorities are entitled to assess the suitability of the candidates and if it is found that the candidate is not suitable to remain in service they are entitled to record a finding of unsatisfactory performance of the work and duties during the period of probation. Under these circumstances, necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in terms of the letter of appointment without conducting any enquiry. That does not amount to any stigma. If the record does not support such a conclusion reached by the authorities, a different complexion would arise. In this case, they have recorded the finding that the petitioner was regularly absent on one ground or the other. Under these circumstances, the respondents terminated his services. We do not find any illegality in the action taken by the respondents." 16. In Ganganagar Zila Dughd Utpadak Sahakari Sangh Ltd., and another v. Priyanka Joshi and another reported in 1999 (6) SCC 214, the respondent therein was employed as Assistant manager on 06.10.1993 and she was put on probation for one year. Leave was granted to her from 16.10.1994 to 25.10.1994 and thereafter, she did not join duty despite notices, dated 07.11.1994 and 23.11.1994. By impugned order, dated 30.11.1994, the respondent was dismissed from service. Challenging the order of dismissal, the respondent filed the Writ Petition before the High Court, contending inter alia that her services could not be terminated without following the procedure of holding an enquiry. A learned Single Judge dismissed the Writ Petition holding that the impugned order did not cast any stigma. However, on appeal, the said decision was reversed by the Division Bench. Testing the correctness of the judgment of the Division Bench of Rajesthan High Court, the Supreme Court, at Paragraphs 5 and 6, held as follows: "5. In our opinion, the Division Bench of the High Court was not correct in the conclusion which it arrived at. It is not in dispute that when the order dated 30-11-1994 was passed, the respondent was still on probation. The reason for passing of the said order appears to be the absence of the respondent from duty. In the order of appointment, it was clearly stipulated that the respondents services could be terminated during the probationary period if the services were unsatisfactory. When judging the performance of a person if the services are terminated during the period of probation, obviously there has to be a reason for such termination. If the services are terminated during the probationary period without any reason whatsoever, it is possible that such an order may be impugned on the ground that it has been passed arbitrarily. On the other hand, when there is a reason for terminating the services during the probationary period and the order terminating the services is worded in an innocuous manner, we do not see any force in the contention that such an order has to be regarded as by way of punishment. 6. The impugned order dated 30-11-1994 is only of one sentence which states that the respondents services were being BARKHAST (dismissed). The real word used there was BARKHAST and under the circumstances even the use of the word dismissed cannot, in our opinion, be regarded as by way of punishment." 17. In State of Punjab v. Sukhwinder Singh reported in 2005 (5) SCC 569, a Police Constable remained continuously absent for 22 days without seeking permission. After 22 days of his continous absence, the SSP passed an order, discharging him from service with immediate effect under Rule 12.21 of the Punjab Police Rules, 1934, on the ground that he was likely to become an efficient police officer. The Civil Court, which adjudicated the validity of the discharge, held that the order as null and void and the appellate Court upheld the decision. The High Court, dismissed the second appeal of the State and held that absence from duty was a misconduct and imposition of the punishment of discharge on the respondent, without holding a formal inquiry as envisaged under Rule 16.24(ix) of the Rules, vitated the order of discharge. The State then filed an appeal before the Supreme Court, contending inter alia that the Police Constable, being a probationer, not having completed three years of service, is liable to be discharged from service at any time, if his services were unsatisfactory and therefore, it was neither stigmatic nor did affect him with evil consequences. It was further contended that no disciplinary action need be taken against the Government Servant and there was no necessity for holding any formal enquiry. The Supreme Court, after considering various decisions, at paragraphs 19 and 20 held as follows: "Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not makes inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. The superior authorities of the departments have to be work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. A probationer is on test and a temporary employee has no right to the post. (para 19) In the present case neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was a habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of the Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. (para 20)" 18. In yet another decision arising out of the same High Court in State of Punjab v. Rajesh Kumar reported in 2006 (12) SCC 418, the respondent was a Police Constable appointed on 02.12.1989. He was discharged from service on 18.10.1992 under Rule 12.21 of the Punjab Police Rules, which states that, "A Constable is found unlikely to prove an efficient police officer may be discharged by the Superintendent of Police at any time within three years of enrollment. There shall be no appeal against an order of discharge under the rule." 19. In the above reported judgment, the respondent therein, a Police Constable, on probation, was unauthorisedly absent from duty. The Superintendent of Police, who assessed his performance and work, found him unlikely to prove an efficient police officer, as per high standard of discipline, as being expected from a Police Personnel. The High Court set aside the order of discharge. The Supreme Court, while reversing the order of the High Court, observed that the enquiry is not required before passing an order under Rule 12.21 of the Punjab Police Rules to discharge a Constable on the ground of unauthorised absence. The Supreme Court, at Paragraph 6, has further observed that, "The period of probation gives any time an opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant. In the instant case, the department officials found the respondent not suitable for the post and, therefore, they always reserve a right to dispense with his services in any manner during or at the end of the prescribed period which is called period of probation." 20. In yet another decision in State of Punjab v. Avtar Singh reported in 2008 (7) SCC 405, the respondent therein was appointed on probation for three years in Punjab Police in 1989. In July 1992, he was sent to Barnala, Punjab to attend a departmental enquiry. The Deputy Superintendent of Police, Barnala relieved the respondent on 1-8-1992 with a direction to report at his place of posting, but the respondent did not report at his place of posting, therefore, he was marked absent from 1-8-1992 to 19-9-1992. The respondent joined duty on 20-9-1992 after one month and two days and again remained absent from 7-10-1992. The respondent remained absent for a long period without any permission from the senior officers, a serious act of misconduct according to the police discipline rules. In these circumstances, the respondent was dismissed from service w.e.f. 1-11-1992 under Rule 12.21 of the Punjab Police Rules, 1934. The order of dismissal was challenged by the respondent by filing a civil suit and the suit was decreed. Aggrieved by the said judgment and decree, the State of Punjab preferred an appeal and the same was dismissed. The second appeal preferred by the State was also dismissed on the ground that the impugned order of discharge was stigmatic and the respondent-police was not given a fair opportunity and secondly, absence from duty could not be viewed as culpable inasmuch as in the same order, the Senior Superintendent of Police, Barnala had condoned the respondent's absence from the duty. Following the decision in State of Punjab v. Sukhwinder Singh reported in 2005 (5) SCC 569, Prithipal Singh v. State of Punjab reported in 2002 (10) SCC 133 and Ajit Singh v. State of Punjab reported in 1983 (2) SCC 217, the Supreme Court in Avtar Singh's case, held that, "once there is stigma, the principle is well settled, an opportunity has to be given before passing any order. Even where an order of discharge looks innocuous, but on a close scrutiny, by looking behind the curtain if any material exists of misconduct and which is the foundation of passing of the order of discharge, or such could be reasonably inferred, then it leaves no room for doubt that any consequential order, even of discharge, would be construed as stigmatic. The decision in Sukhwinder Singh1