REGULAR SECOND APPEAL NO.3383 OF 1986 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 29, 2010 Punjab State and another .....Appellants VERSUS Balwant 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-appellants. None for the respondent. **** RANJIT SINGH, J. This Regular Second Appeal has been filed by the State to impugn the judgment passed by the Additional District Judge, Jalandhar. The issue relates to the discharge of respondent-plaintiff, Balwant Singh, who was serving as Constable in P.A.P., Jalandhar. Respondent-plaintiff had filed a suit urging that he was performing his duties honestly and with dedication. In May 1984, he was posted in 27th Battalion PAP. He fell ill and was removed by his colleague for treatment. On return, he was treated as absent from duty for 12 hours and discharged from service on 22.6.1984 under Rule 12.21 of REGULAR SECOND APPEAL NO.3383 OF 1986 :{ 2 }: the Punjab Police Rules (for short, “the Rules”). Respondent-plaintiff would accordingly urge that this order was by way of punishment and would also point out that one Jaswinder Singh, like him, had also been absent from duty but was let off by treating this period as leave without pay. The respondent-plaintiff filed an appeal against this order, which was rejected by D.I.G. He ultimately filed the suit to challenge the said order of discharge. The appellant-State resisted the suit by terming it as not maintainable. It was pleaded that discretion was of the authority to see whether the respondent-plaintiff was fit to become a good police officer or not and accordingly discharged him as per the power available under Rule 12.21 of the Rules. It was accordingly emphasized that the impugned order was not a punitive order but was passed only as per the power available, when it was found that respondent-plaintiff was not likely to become a good police officer. It is also pleaded in the reply that the work and conduct of the respondent-plaintiff was constantly watched, evaluated and he was found to be lazy, sloppy and indifferent in his attitude to his duties and responsibilities as police officer. Prayer was made to dismiss the suit. On the basis of pleadings, following issues were framed:- “1. Whether the suit is not maintainable in the present form? OPD 2. Whether the order dated 22.6.1984 passed by Commandant 27th Battalion PAP Jalandhar discharging the plaintiff from service is illegal, void etc.? OPP 3. Whether notice under Section 80 CPC is not valid, REGULAR SECOND APPEAL NO.3383 OF 1986 :{ 3 }: legal? OPD 4. Whether civil court has no jurisdiction to try the present suit? OPD 5. Relief.” The suit was dismissed by the Trial Court by finding that the order of discharge was perfectly legal and valid. Respondent- plaintiff then filed an appeal against the same, which was allowed. The first appellate Court noticed the impugned order, which was as under:- “Constable Balwant Singh No.27/363 is unlikely to prove any efficient police officer. Therefore, he is hereby discharged from service under P.P.R. 12.21 w.e.f. 22.6.1984. Period of absence for one day i.e. 2.5.1984 is treated as leave without pay.” The Court compared this order with another order issued in respect of Karamjit Singh, which was as under:- “Show cause notice of censure for constable Jaswinder Singh be put up. I have carefully perused service record of Constable Balwant Singh. His conduct and standard of discipline is quite poor. He is unlikely to prove an efficient police officer. He is, therefore, discharged under Rule 12.21. The O.H.C. to put up for final orders and company Commander to recover dues.” Comparing these two orders, the first Appellate Court was of the view that the respondent-plaintiff was discharged from service without affording reasonable opportunity to defend himself. Primarily, REGULAR SECOND APPEAL NO.3383 OF 1986 :{ 4 }: the Court granted the relief to the respondent-plaintiff on the ground that his case was not distinguishable from that of Jaswant Singh and the appeal was accordingly allowed. The State counsel would find fault with the approach adopted by the first Appellate Court and would submit that Rule 12.21 of the Rules relates to discharge from service of a probationer Constable and it can be ordered on the ground that he was not likely to become a good police officer. In support, the counsel would refer to the State of Punjab and others Vs. Constable Avtar Singh (dead) through L.Rs, JT 2008 (6) SC 576. This was a case where order under Rule 12.21 was passed on account of unauthorised absence from duty and the Hon'ble Supreme Court has held that order would be justified even though passed without holding enquiry. While taking this view a, reference is made to the case of State of Punjab and others Vs. Sukhwinder Singh, JT 2005 (6) Supreme Court 170, where the scope of Rule 12.21 has been discussed in detail. This was also a case where the Constable was discharged within three years of his service and had filed a suit praying that the order was illegal, null and void. His suit was decreed, which judgment was upheld by this Court as well. State of Punjab had gone in appeal saying that the impugned order was neither stigmatic nor it effected the Constable with any evil consequences as he was simply discharged on the ground that Constable was not likely to become an efficient police officer. The submission that such an order of discharge would be a punishment was also addressed in Sukhwinder Singh's case (supra) but the Hon'ble Supreme Court observed as under:- REGULAR SECOND APPEAL NO.3383 OF 1986 :{ 5 }: “Termination of service of a probationer during or at the end of period of probation will not ordinarily and by itself be a punishment because the servant so appointed has no right to continue to hold such a post any more than a servant employed on probation by a private employer is entitled to. The period of probation, therefore, furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service. Period of probation may vary from post to post or master to master and it is not obligatory on the master to prescribe a period of probation. It is always open to the employer to employ a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer. (See Ajit Singh and others etc. Vs. State of Punjab and another).” The rights of the probationer were also considered by the Hon'ble Supreme Court in Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences and another, JT 2001 (9) SC 420), where the law on the point was elucidated as follows:- “One of the judicially evolved 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 REGULAR SECOND APPEAL NO.3383 OF 1986 :{ 6 }: 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 been upheld. Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.” The Supreme Court in the case of State of Punjab and others Vs. Balbir Singh, JT 2004 (7) Supreme Court 383 has considered Rule 12.21 of the Rules, where the following principle was laid down:- “The order of discharge simpliciter, prima facie, is not punitive, it being in terms of Punjab Police Rule 12.21 but the question still is whether the incident which led to the passing of that order was motive or inducing factor or was the foundation of order of discharge. In order to determine whether the misconduct is motive or foundation of order of termination, the test to be applied is REGULAR SECOND APPEAL NO.3383 OF 1986 :{ 7 }: 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 simpliciter and not punitive in nature. The other test to determine whether, in substance, the order of discharge is punitive in nature is to ascertain the “nature of enquiry” i.e. Whether the termination is preceded by a full-scale formal enquiry into allegations involving misconduct on the part of the respondent, which culminated in the finding of guilt, and the “purpose of the enquiry” i.e. whether the purpose of the enquiry is to find out any misconduct on the part of the employee or it is aimed at finding out as to the respondent being unlikely to prove as an efficient police officer.” No doubt, an employee whether probationer or temporary can not be discharged or reverted arbitrarily without any rhyme or reason. However, it can not be said that when an enquiry is held by superior officer to see whether the employee is to be continued in service or not, it is for the purpose of imposing punishment. The decision to discharge a probationer during the period of probation or order to terminate the services of the temporary employee is taken by the appointing authority or the administrative head, who are not REGULAR SECOND APPEAL NO.3383 OF 1986 :{ 8 }: judicially trained people, still they can be expected to know and judge whether an employee should be continued in service or made permanent or not having regard to his performance conduct and over all suitability for the job. The superior authority of the Department has to take work from an employee and they are the best people to judge whether the employee should be continued in service and made permanent or not. Probationer is on a test and a temporary employee has no right to the post. If any enquiry is even held to ascertain the relevant facts for arriving at a decision or on objective consideration to see if employee is to continued or is to be made permanent or not, it can not be termed as an enquiry for the purpose of punishment or that order in such cases to be punitive. In the present case, no enquiry was held. Even no preliminary fact finding enquiry was conducted. There is, as such, no edifice from where, the respondent-plaintiff will build his case to say that the order was passed by way of punishment where there was need to hear the respondent-plaintiff or to follow the principles of natural justice. The order, as such, can not be viewed as punitive one to call for following the principles of hearing etc. The substantial question of law in regard to the powers to discharge a probationer Constable under Rule 12.21 of the Rules and whether such order is to be passed by affording opportunity of hearing, thus, would arise in this case. The requirement of following principles of natural justice primarily were pressed into service by comparing the order passed in respect of another Constable Jaswinder Singh. Simply because Balwant Singh was discharged and case of Jaswinder Singh was disposed of by award of censure REGULAR SECOND APPEAL NO.3383 OF 1986 :{ 9 }: would not in itself be sufficient to say that the order passed in respect of respondent Balwant Singh was bad. The decision by the authority was to see whether the respondent-plaintiff would become an efficient officer or not. There may be reason enough to say that Jaswant Singh despite absence was not required to be discharged as his other conduct may be better or such which did not warrant any order of discharge. Thus, the view taken by the Appellate Court can not be sustained on the grounds as taken into consideration. While admitting this Regular Second Appeal, the operation of the impugned judgment was stayed on 13.5.1987. No one has appeared to represent the respondent-plaintiff. Perhaps being not in service, he may not be interested to pursue this case. The first Appellate Court was not justified in taking this view and the judgment under appeal, thus, can not be sustained. The Regular Second Appeal is allowed and the impugned judgment is set-aside. The judgment passed by the Trial Court shall stand restored and the suit filed by the respondent-plaintiff shall stand dismissed. March 29, 2010 ( RANJIT SINGH ) khurmi JUDGE