Civil Writ Petition No.2738 of 1989 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 23, 2009 Prem Parkash .....Petitioner VERSUS The State of Haryana and others ....Respondents 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: Mr. R.K.Malik, Senior Advocate with Mr.Jitender Bedwal, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner is a discharged Constable from Haryana Police and has filed this writ petition in 1989 to impugn his order of discharge passed on 19.3.1986. On 10.11.1987, the petitioner was appointed as Constable in Haryana Armed Police on 1.8.1985 and had completed his training. He was discharged from service under Rule 12.21 of the Punjab Police Rules (for short, “the Rules”) on 19.3.1986. The Civil Writ Petition No.2738 of 1989 : 2 : petitioner represented against the order of his discharge to D.I.G., Haryana Armed Police, Madhuban, by filing representation dated 12.5.1986. This representation was rejected on 28.10.1986. At that time, criminal case under Sections 353, 332, 186 IPC was pending against the petitioner. As per the petitioner, this case was registered against him on a false complaint. The petitioner was acquitted of the charge on 1.4.1987. Upon his acquittal, the petitioner preferred another appeal before Inspector General of Haryana Armed Police on 18.4.1987, which was forwarded to Director General of Police, who approved the re-enlistment of the petitioner 21.9.1987. As per the petitioner, the order of his re-enlistment was made in exercise of inherent power by Director General of Police. The petitioner would further term the order of his discharge earlier made to be wrong. The petitioner was, thus, given fresh appointment on 10.11.1987. It appears that some complaint was sent to the President of India and thereafter Home Ministry took action in writing to State Government. Financial Commissioner and Secretary to the Government of Haryana (Home Department), thereafter issued direction to the Director General of Police to discharge the petitioner from service. The petitioner would complain that no reason whatsoever was given concerning his eligibility, conduct, efficiency, character or integrity while directing his discharge. Sole reason given in the order discharging the petitioner is that no appeal was maintainable under Rule 12.21 of the Rules and so the petitioner should be discharged. The petitioner would plead this approach to be misconceived one. The petitioner would rather contend that his Civil Writ Petition No.2738 of 1989 : 3 : case was of re-enlistment and not reinstatement and so it was a fresh appointment, which aspect was not appreciated. The petitioner also pleads that he was not afforded any opportunity of hearing before directing his discharge as ordered w.e.f. 18.1.1989. These orders of discharge has now been challenged by the petitioner through the present writ petition. The facts, as pleaded in the writ petition, are not in much dispute. The petitioner was discharged under Rule 12.21 of the Rules on 19.3.1986 as per the order passed by the Commandant. It is pointed out that a criminal case was registered against him through FIR dated 27.2.1985 under Sections 147, 148, 332, 353, 325/186 IPC. The factum of involvement of the petitioner in this criminal case was reported by District Magistrate, Narnaul, through his communication dated 16.9.1985. Since the petitioner had concealed this fact, which was of incriminating nature, the same was found sufficient to infer that the petitioner was not likely to make an efficient police officer and hence, the order of discharge was made. The acquittal of the petitioner in a criminal case is stated to be mainly on technical ground of non-production of evidence of Investigating Officer. It is also pointed out that the petitioner had also been arrested for the offences alleged against him in the above noted FIR and it is accordingly stated that it would not have been proper to keep the petitioner in service and, thus, the order of his discharge is justified. The order, taking the petitioner back in service by way of his re-enlistment, is termed as wrong. This order was so made perhaps to estop the petitioner from claiming arrears of wages. When Civil Writ Petition No.2738 of 1989 : 4 : the issue reached respondent No.1, it was found that there was no right of appeal or second appeal or right to file any representation against the order of discharge. It was accordingly viewed that the petitioner had no right to file appeal before the Director General of Police, Haryana and as such, no action could be taken by Director General on such appeal even if filed. Since the petitioner has already been taken back in service, this order wrongly made for re-enlisting the petitioner could only be undone by passing a fresh order of discharge and, thus, decision was taken by the Government to formally discharge him under Rule 12.21 of the Rules. The action of the Government and the Financial Commissioner, thus, is justified in law and otherwise. Mr.Ram Kumar Malik, learned Senior counsel for the petitioner, while making submission has referred the impugned order to be a termination order and would further contend that this order of termination was made due to pendency of the criminal case against the petitioner. He would then submit that upon acquittal of the petitioner of the criminal charges, he became entitled to reinstatement and accordingly filed an appeal, which was accepted and the petitioner was re-enlisted. The counsel would, thus, challenge the subsequent order discharging the petitioner by submitting that he could not have been so terminated. In support of his submission, the learned counsel has relied upon orders passed by this Court in Civil Writ Petition No.223 of 2008 (Parveen Kumar Vs. State of Haryana and others) decided on 24.7.2008, Civil Writ Petition No.17043 of 2007 (Pardeep Kumar Vs. State of Haryana and others), Civil Writ Petition No. 4452 of 2008 (Amit Kumar Vs. Civil Writ Petition No.2738 of 1989 : 5 : State of Haryana and others) decided on 15.5.2008 and Phagwan Dass Vs. State of Haryana, 1992 (1) SCT 396. The counsel has also made reference to instructions in support of his submission that the petitioner was not liable to be terminated as none of the offences alleged against him involved moral turpitude for which the petitioner could have been terminated from service. As per the counsel, upon his acquittal, nothing remained for which he could be terminated/discharged and as such, he would plead that writ petition deserves to be allowed. The counsel says that the petitioner is prepared to forego the entire back wages but would seek grant of continuity of service, if writ petition is allowed. The impugned orders can not be termed as orders of termination. These orders are for discharging the petitioner from service for which there is a provision made in the statute. Difference between discharge and termination is well defined and well understood and can not be ignored. None of the judgements relied upon by the petitioner relate to discharge from service and all these cases are where the police officials were dismissed from service and after their acquittal, had sought their reinstatement, which was declined. They had then approached this Court and their prayers were allowed. In Parveen Kumar's case (supra), the petitioner therein was dismissed with an allegation that he had not disclosed that the case was pending against him for which he was charged and order of dismissal was passed after holding regular enquiry. It is, thus, observed that mere non disclosure of pendency of criminal proceedings would not be such a grave misconduct to invite the order of dismissal. Rather, the punishment of dismissal was Civil Writ Petition No.2738 of 1989 : 6 : considered disproportionate and harsh and so set-aside. In case of Pardeep Kumar (supra), the petitioner therein was not given constabulary number after selection as a criminal case was registered against him. The fact of his involvement was revealed during character verification. The official therein was acquitted of the charge after trial. While allowing the writ petition, direction was issued to issue constabulary number to the petitioner. Amit Kumar (supra) is again a case where the services of the petitioner were terminated due to the fact that offence committed by him was involving moral turpitude and, thus, he was considered ineligible for entry into police. In Bhagwan Dass's case (supra), the offence for which the official was convicted was not involving moral turpitude but still his services were discontinued and the order discontinuing the service was, thus, quashed. The services of the petitioner have not been terminated. The petitioner has been innocuously discharged and the first order in this regard reads as under:- “Const.Prem Parkash No.6/873 of this Bn. is here by discharged under PPR 12.21 with immediate effect i.e. 19.3.86 FN as he is unlikely to prove an efficient police officer.” There is no mention of the fact that the petitioner was being discharged on the ground of his involvement in a criminal case. The order will only disclose that the petitioner was discharged as he was unlikely to prove an efficient police officer. So is the position in the subsequent order of discharge, which identically reads as under:- “Constable Prem Parkash No.1/625 is hereby discharged Civil Writ Petition No.2738 of 1989 : 7 : under PPR 12.21 w.e.f 18.1.89 forenoon as he is not likely to prove an efficient Police official.” The judgments relied upon by the learned counsel for the petitioner would, thus, not strictly apply to the facts of the present case. It may be that the reasons which weighed with the authorities to come to this conclusion that the petitioner was unlikely to become an efficient police officer because of his involvement in a criminal case but it can not be construed therefrom that the petitioner was discharged on the ground that he was involved in a criminal case. That being the position, it would be immaterial if he was subsequently acquitted. This may be an inducing factor for passing the order of discharge i.e. a motive for passing the order but it was not a foundation of the order. This order of discharge is simpliciter in nature and is not punitive. The question, thus, to see would be if the incident which led to the passing of this order, was motive or inducing factor or was the foundation of the order of discharge. Similar issue arose before the Hon'ble Supreme Court of India in the case of State of Punjab Vs. Balbir Singh, JT 2004 (7) SC 383. The Hon'ble Supreme Court by referring to its earlier decision in the case of Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd., (1999) 2 SCC 21, exhaustively dealt with all these aspect. In Radhey Sham's case (supra), it is observed as under:- “But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a Civil Writ Petition No.2738 of 1989 : 8 : report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases." It is seen that the above observations in the case of Radhey Shyam's case (supra), were made after making reference to number of other decisions. In some of the cases, it is observed that decision to terminate the services of a temporary servant or one on probation on the basis of adverse entry 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. To explain as to how they are motive, it is stated that assessment is not done with the object of finding out any misconduct on the part of an officer. (See State of Orissa Vs. Ram Narayan Das, AIR 1961 Supreme Court 177). The assessment is done only with a view to decide whether a person is to be retained or to be Civil Writ Petition No.2738 of 1989 : 9 : continued in service. It is also observed that the position would not be different even if a preliminary enquiry is held in some cases because purpose of preliminary enquiry is to find out if there is prima- facie evidence or a material to initiate a regular departmental enquiry. (See Champaklal Chimanlal Shah Vs. Union of India, AIR 1964 SC 1854). It is said that the purpose of preliminary enquiry is not to find out misconduct on the part of officer and if a termination follows without giving an opportunity, it will not be bad. Gujarat Steel tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha, 1980 (2) SCC 593, is another case to which reference can be made. In this case, simple order of termination as permitted by the terms of appointment or as permitted by the rules was not held punitive even when the departmental enquiry ordered initially was stopped because the employer was not sure of establishing the guilt of the employee. It is observed that in such cases allegation against the employee merely raise a cloud on his conduct and 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. Passing of a simple order of termination in such cases is to confer benefit on the employee so that he does not suffer from any stigma, which would attach to rest of his career if a dismissal or other punitive order was passed. These are such cases where allegations of truth have not been found but these were merely taken as motive to pass the order simpliciter in nature. In Balbir Singh's case (supra), the Hon'ble Supreme Court referred to the test to be applied to see if the misconduct is motive or Civil Writ Petition No.2738 of 1989 : 10 : foundation of the order of termination. The Hon'ble Court observed:- “Thus the principle that in order to determine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask the question as to what was the `object of the enquiry'. If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simplicitor and not punitive in nature. This principle was laid down by Shah, J. (as he then was) as early as 1961 in the case of State of Orissa v. Ram Narayan Das [(1961)(1) SCR 606]. It was held that one should look into `object or purpose of the enquiry' and not merely hold the termination to be punitive merely because of an antecedent enquiry. Whether it (order of termination) amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry. On the facts of that case, the termination of a probationer was upheld inasmuch as the purpose of the enquiry was held to be to find out if the employee could be confirmed. The purpose of the enquiry was not to find out if he was guilty of any misconduct, negligence, inefficiency or other disqualification.” Civil Writ Petition No.2738 of 1989 : 11 : In Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences & Anr., 2002(1) SCC 520, the Hon'ble Supreme Court observed that:- “One of the judicially involved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely, if any one of the three factors is missing, the termination has to be upheld.” In Gujarat Steel Tubes (supra), the Court observed that:- “...... a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal. If there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simplicitor, if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. In other words, it will be a case of motive if the master, after gathering some prima facie facts, does Civil Writ Petition No.2738 of 1989 : 12 : not really wish to go into their truth but decides merely not to continue a dubious employee. The master does not want to decide or direct a decision about the truth of the allegations. But if he conducts an enquiry only for the purpose of proving the misconduct and the employee is not heard, it is a case where the enquiry is the foundation and the termination will be bad.” In Dalbir Singh Vs. the State of Haryana, 1999 (1) SCT 470, this Court viewed that discharge from service without any misconduct carries no stigma and passing of such order is within the powers conferred on the commandant. In the light of above principles, it is now to be seen if in substance the order of discharge in the present case is punitive in nature, based on involvement in criminal case as made out by learned counsel for the petitioner or it is a simple order of discharge which is without any stigma. Before ordering his discharge, no enquiry was held. Nothing much would depend upon the contents of the reply where reference is made to the criminal case against the petitioner, which he did not disclose at the time of his enrollment. The involvement of the petitioner in a criminal case was not the foundation for discharge and this fact was only viewed to see if the petitioner would be suitable to become an efficient police officer. Thus, it could be termed as a motive for the order. This discharge order is not founded on the misconduct of the involvement of the petitioner in criminal case but was considered to determine suitability of the petitioner for the job in the light of the standard expected from the police persons. Even if one was to apply the various tests laid Civil Writ Petition No.2738 of 1989 : 13 : down by the Hon'ble Supreme Court to determine if the order of discharge was punitive and, therefore, illegal having been passed without conducting any enquiry, it can be said that both the orders of discharge passed against the petitioner were not punitive in nature. Thus, nothing would depend upon the acquittal of the petitioner from a criminal charge. It needs to be appreciated that the petitioner was not discharged because of his involvement in the criminal case but was so discharged as he was unlikely to become a good police officer. The re-enlistment of the petitioner was certainly beyond jurisdiction as no second appeal or appeal was maintainable and accordingly the order of his discharge on the ground that he was not likely to become good police officer could not have been ignored to order re-enlisting the petitioner. The order of discharge was rightly and justly made and, thus, would not call for any interference. There is no merit in the writ petition and the same is accordingly dismissed. October 23, 2009 ( RANJIT SINGH ) khurmi JUDGE