IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13990 of 2008 VIJAY GAUTAM SINGH . Versus THE STATE OF BIHAR & ORS . with CWJC No.14041 of 2008 ASHOK SHUKLA . Versus THE STATE OF BIHAR & ORS . with CWJC No.14070 of 2008 LOKESH KUMAR SINGH . Versus THE STATE OF BIHAR & ORS . with CWJC No.14073 of 2008 DHANANJAY KUMAR GUPTA . Versus THE STATE OF BIHAR & ORS . with CWJC No.14156 of 2008 ALOK KUMAR DUBEY . Versus THE STATE OF BIHAR & ORS . with CWJC No.14212 of 2008 DHIRAJ KUMAR PANDEY . Versus THE STATE OF BIHAR & ORS . with CWJC No.14213 of 2008 BRIJ BIHARI SINGH . Versus THE STATE OF BIHAR & ORS . with CWJC No.14226 of 2008 RAJESH KUMAR SHARMA . Versus THE STATE OF BIHAR & ORS . with CWJC No.14227 of 2008 PEYUSH KUMAR . Versus THE STATE OF BIHAR & ORS . with CWJC No.14238 of 2008 UMESH PASWAN . Versus THE STATE OF BIHAR & ORS . 2 with CWJC No.14239 of 2008 RIYAZ AHMAD KHAN . Versus THE STATE OF BIHAR & ORS . with CWJC No.14497 of 2008 BHAUPRIT RANJAN . Versus THE STATE OF BIHAR & ORS . -------------- For the Petitioners: - Mr. Awadhesh Kr. Mishra, Adv. Mr. Arun Kumar Mandal, Adv. Mr. Anand Kr. Mishra, Adv. Mr. S.K. Verma, Adv. Mr. Sharda Nand Mishra, Adv. Mr. Dhananjay Kr. Gupta, Adv. Mr. Deepak Kumar, Adv. For the State:- Mr. Anil Kumar Jha, G.A.-2 Mr. Mayank Pukhaiyar, AC to G.A.-5 Mr. Ram Sagar Singh, AC to GP 13. Mr. Shashi Shakher Pd. Sinha, Adv. ------------------ 3. 06.09.2010 Heard learned counsel for the petitioners and the State. The petitioners were appointed as Constables on a two year Probation under Rule 668 of the Bihar Police Manual in the District Police Force. They could be removed if found unfit for appointment and the probation could be extended without show cause. They were sent for training at the B.S.F. Training Camp, Udhampur, at Jammu. The probationers for purposes of training were divided into three companies, Bravo, Charlie and Delta. The petitioners were in the Charlie and Delta 3 company. 136 Constables comprising of probationers from the Charlie and Delta company fled the training camp on 20.6.2008 and returned home in an act of indiscipline. The trainees alleged arduous training schedule and harshness on part of the trainers. One of the trainers is alleged to have attempted close unnatural physical proximity with the petitioner in C.W.J.C. No. 14277 of 2008. That is alleged to have triggered the incident of 20.6.2008. Subsequently 119 of them reported before the State police and were permitted to resume training at Udhampur. They have completed their training and joined duty in the State police as Constables. 17 Probationers (inclusive of the 12 petitioners are alleged not to have gone back to the department much less to Udhampur for training. They have been discharged simplicitor from service by order dated 28.7.2008 with immediate effect in pursuance of the office order No. 966 (Training) dated 25.7.2008 issued by the Office of the Director General of Police, Bihar. Counsel for the petitioners submitted that the language used in the order of discharge was not conclusive. It was in fact an order of termination by way of punishment. No show cause notice much less an opportunity to defend was afforded. No proper enquiry in accordance with law was held to arrive at a finding of 4 guilt before dismissal. The order was stigmatic. Seeking reinstatement reliance was placed on the judgment of the Supreme Court in 2000 AIR SCW 792 (V.P. Ahuja Vs. State of Punjab and Ors.). It was next submitted that the 136 Probationers who fled the camp on 20.6.2008 form one class. They were all aggrieved with their tenure at the training camp. If fleeing the training camp was an act of indiscipline, it applies to the entire class of 136 Constables. There can be no justification to distinguish the petitioners from those 119 retained in service. Their termination being by way of punishment, stigmatic in nature was also in violation of Article 14 of the Constitution of India as it discriminates between one class of persons by treating equals as unequal. The State urged that being probationers they had no right to the post. The order of termination was not stigmatic. The Government was not satisfied with the discharge of duties by the probationers. The order was of discharge simplicitor in terms of the appointment and the Bihar Police Manual. The Department was competent to do so. Reliance was placed in (2005) 5 SCC 569 (State of Punjab & Ors. Vs. Sukhwinder Singh) and (2008) 7 SCC 405 (State of Punjab & Ors. Vs. Constable Avtar Singh). The law with regard to the dispensing with the 5 services of a Probationer as being simplicitor or stigmatic has engaged the attention of the Courts in a large number of cases starting with Parshotam Lal Dhingra Vs. Union of India AIR 1958 SC 36 considered the Magna Carta as described in (2002) 1 SCC 520 (Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. Of Medical Sciences and Anr.). The law discussed in Parshotam Lal Dhingra (supra) states that if instead of the simpler option in terms of the appointment, the Government chooses to punish the servant and the termination is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it amounts to a punishment and the requirement of Article 311 (2) must be complied with. The legal position emanating from various judgments has been noticed in the case of Pavanendra Narayan Verma (supra) at Paragraph 19 as follows:- “19. Thus some Courts have upheld an order of termination of a probationer's services on the ground that the enquiry held prior to the termination was preliminary and yet other Courts have struck down as illegal a similarly worded termination order because an inquiry had been held. Courts continue to struggle with semantically indistinguishable concepts like 'motive' and 'foundation'; and terminations founded on a probationer's misconduct have been held to be illegal while terminations motivated by the probationer's misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents.” 6 A Probationer has no right to hold a post. His services can be dispensed with if found unsuitable or performance was unsatisfactory. Such an order of discharge in terms of the order of appointment has been held to be one of discharge simplicitor warranting no interference. But if the employer passes an innocuous order, the foundation for which essentially is an alleged misconduct and a challenge is laid out, the Court may lift the veil to satisfy itself if the act of the probationer was the motive or the foundation for the order. If the foundation for the order is an alleged misconduct of the probationer, an innocuously worded order shall not suffice. The Court may then interfere holding the punishment without opportunity to defend as bad in law. The 136 Probationers who fled the camp form one class. No distinction is possible at this stage in the act of fleeing. A sub classification within a class shall stand to greater scrutiny to ascertain whether there was sufficient justification founded on an intelligible differentia having nexus with the object to be achieved to create a class within a class. To the understanding of this Court, the moment the petitioners are sub-classified from out of the 136 Probationers, something more is attributed to them then the others. They are then being 7 picked out and singled for a different treatment. The Court is satisfied that this very act of sub classification of the Petitioners per se amounts to an allegation that they did something more than what the others did. What the others did was not misconduct. What the petitioners did was misconduct. This then becomes the foundation for sub classification as also for any subsequent order with regard to them. The order dated 28.7.2008 dispensing with their services has to be seen in that light. If this Court had any doubt of the view it was taking that the order with regard to the petitioners was not a discharge simplicitor but founded on misconduct. stigmatic, by way of termination, stands resolved by the second counter affidavit filed affirmed by a Senior Officer of the rank of Additional Director General of Police (Training), Bihar. It contains two enquiry reports of the occurrence at Udhampur. The enquiry report dated 2.7.2008 of the Commandant Bihar Military Police-VI states that the petitioners were identified as boisterous and persuading the others to flee. The second report dated 8.7.2008 of the Dy. Superintendent of Police, Patna, states that the petitioners were identified as instigating the other probationers to flee. That may not be sufficient for sub classification. When 136 persons flee each is responsible for its own action. The petitoners are 8 sought to be identified as the ring leaders. The respondents have of their own volition brought on record as Annexure C, the original order by which the proposal to dispense with the petitioners originated on 24.7.2008 affirmed by the Director General of Police leading to the impugned orders. It states that Peyush Kumar (petitioner in C.W.J.C. No. 14277 of 2008) had leveled a false and fabricated allegation originating the entire drama. He was therefore required to be dealt with stern disciplinary action along with the other sixteen probationers who should all be dismissed with immediate effect. The petitioners were persons who were abusing and threatening those who did not wish to flee the training camp, hiding behind bushes, telling them that their leader at Patna had assured that nothing would happen. The other 119 who unauthorisedly fled the camp in an act of indiscipline were required to be dealt with sternly disciplinary action and may be initially kept under administrative control and may be permitted to rejoin the training. This was affirmed by the Director General of Police on 24.7.2008 who approved the proposal. The allegations made by the petitioner Peuysh Kumar on enquiry had been found to be incorrect. The aforesaid recitals leave no doubt that the present petitioners are sought to be punished by 9 termination of their services for what is alleged to be a serious misconduct on their part. If it was a misconduct which has surfaced on a challenge laid down by them, as the foundation of the order, the innocuous language used in the order of discharge shall not suffice. Once the veil has been lifted, and the Court is satisfied that the order of discharge simplicitor is but a camouflage for an order of stigmatic punishment, in absence of any procedure for imposition of punishment having been followed, the order of discharge simplicitor shall not be sustainable. The proposal dated 24.7.2008 itself was for stern disciplinary action by dismissal against them and which was approved. The order of discharge dated 28.7.2008 couched in innocuous language referring to the approval of the Director General states it was being issued with immediate effect. The order of discharge as contended on behalf of the respondents additionally suffers from the vice of discrimination Article 14 of the Constitution of India. Unless and until a finding is arrived at after enquiry with due opportunity to defend that the petitioners were in fact differently situated from the other 119 Probationers who fled the training camp they cannot be subjected to any different treatment than the other 119 probationers allowed to rejoin. 10 Each case would depend on its own facts. In the case of Sukhwinder Singh (suprs) it has been noticed that if the delinquency of the officer is taken as the operative motive in terminating service, the order is not considered punitive. But if the order of termination is founded upon it, the termination is considered to be a punitive. Similar is the view taken in the case of Constable Avtar Singh.(supra). In A.I.R. 1984 636 (Anoop Jaiswal vs. Government of India & Ors)., the petitioner was a probationer in the Indian Police service. He as also other probationers were not present for the drill. Explanation was called from all the Probationers. The appellant was considered the ring leader responsible for the delay. He submitted his explanation. He was then discharged from service. The discussion at Paragraph 12 and 13 of the judgment are as follows:- “12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.” “13. In the instant case, the period of probation had not yet been over. 11 The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymnasium and acting, as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Art. 311 (2) of the Constitution.” In A.I.R. 1984 S C 1110, (Indra Pal Gupta vs. The Managing Committee, Model Inter College, Thora) the Court at Paragraph-11 in the relevant extract has held as follows:- “11. The above report was the real foundation on which the decision of the Managing Committee was based. This is a case where the order of termination issued is merely a camouflage for an order imposing the penalty of termination of service on the ground of misconduct........ It is difficult to engraft an exception of the 12 above type to the well settled rule that if the order of termination carries a stigma, it has to fall to the ground unless it is preceded by an enquiry as contemplated by law. A reading of the letter of termination of the service and the resolution which forms part of that letter clearly . shows that they bear a mark of disgrace or inform and that the appellant is visited with evil consequences as explained in Parshotam Lal Dhingra's case (AIR 1958 SC 36) (supra). The Division Bench, therefore, erred in holding that on the facts and in the circumstances of the case, the order of termination was an innocuous one and did not carry any stigma. The order of Division Bench is, in our opinion, an unsustainable one and is liable to be set aside.” Again in A.I.R. 1999 Supreme Court 983 (Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences Calcutta & Ors.), the legal position has been explained in Paragraph-36 as follows:- “36. The above decision is, in our view, clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its Annexures. Obviously such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular inquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma.” If the preliminary enquiry report dated 2.7.2008 and 8.7.2008 would have led to discharge simplicitor of all the 136 who fled the training camp, matters would 13 have been entirely different. But when some of them are singled out for a different treatment with more serious allegation against them as evident from Annexure-C to the counter affidavit dated 24.7.2008, this Court finds it difficult to reject the challenge to the order of discharge by holding that the aforesaid enquiry reports were only a preliminary enquiry to assess their suitability, desirability and utility in service as Probationers. This Court holds that the impugned order of discharge is in fact punitive in nature, stigmatic though couched in innocuous language. It suffers from absence of any proper procedure with opportunity to defend afforded to the petitioners. That brings to the fore the nature of relief to be granted. The reliance by the petitioners on the case of V.P. Ahuja (supra) is not wholly appropriate in the facts and circumstances of the case. It related to a civilian service. The standards that shall be applicable to a civilian service shall not be the same standard which shall apply to a uniformed service. In a uniformed service the entire edifice rests on discipline. The standard of discipline in a uniformed service shall be higher and stricter than a civilian service. The Court is convinced that it should not lightly interfere with aspects of discipline in a uniformed service on mere technicalities of 14 the law. The petitioners have made out a case for interference on the technicalities of law that they have not been discharged simplicitor but had been terminated without following due process of law. To direct reinstatement simplicitor on that ground after setting aside the impugned order may have its effect on discipline in the uniformed service. The petitioners were at the threshold of their career but yet failed to realize their responsibility to act wisely and sanely in a manner not to jeopardize their career. Considering the aspect of discipline in a uniformed force, in (2007) 8 SCC 656 (Government of A.P. & Ors. Vs. Mohd. Taher Ali), it has been noticed in Paragraph-4 in the following words:- “The police force is a disciplined force and the respondent was detailed for such an important duty of election. He absented himself from election duty. Such kind of serious lapses cannot be treated lightly.” In 2008(1) SCC 660 (R. Radhakrishnan vs. Director General of Police & Ors.), it has been held at Paragraph -10 in the relevant extract as follows:- “10. Indisputably the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services ............” 15 In 2009 (16) SCC 621 (Union of India & Ors. Vs. Debashish Ghose), it has been observed at Paragraph-9 as follows:- “ B S F is a uniformed service and, therefore, discipline is extremely important for such force.” The impugned orders of discharge of the individual petitioners are accordingly set aside. This shall not result in their reinstatement with back wages. The petitioners shall stand reinstated with suspension. They will only be entitled to subsistence allowance in accordance with law from the date of reinstatement. The respondents are directed to conclude the departmental proceedings against the petitioners within a maximum period of six months from the date of receipt/presentation of a copy of this order, provided the petitioners co-operate. If the petitioners do not co- operate it shall be open for the disciplinary authority to proceed ex parte also, but after recording reasons for its satisfaction for the need to do so displaying the non- cooperation of the petitioners to facilitate enquiry within the time fixed, so that the enquiry is ultimately concluded within the time fixed by the Court. The matters shall further abide by the result of the enquiry. Needless to state that the relief has to be confined to those who have approached this Court for 16 grant of relief. The orders of termination dated 28.7.2008 is set aside. The writ applications are allowed. P. Kumar ( Navin Sinha, J.)