CIVIL WRIT PETITION NO.10297 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 17 ,2011 Rahul .....Petitioner VERSUS 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. S. K. Garg Narwana, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Constable petitioner was discharged from service by invoking Rule 12.21 of Punjab Police Rules, 1934 (for short, “the Rules”) on the ground that he was unlikely to prove an efficient police official. The petitioner would impugn this order on the ground that the real purpose and reason behind passing this order is the allegation of absence from duty and this order has been passed by way of punishment, rather than ordering discharge of the petitioner CIVIL WRIT PETITION NO.10297 OF 2010 :{ 2 }: innocuously. The petitioner would further urge that such an order could have been made only by following procedure prescribed under Rule 16.32 of the Rules by holding enquiry and affording proper opportunity to the petitioner to defend himself. On these very grounds, the petitioner had filed a detailed representation against the order of his discharge, which was also rejected and the same is also impugned through the present writ petition. The petitioner would raise this question in the light of facts, which are noticed hereunder. The petitioner was enrolled as a Constable in Haryana Police on 23.4.2004. He was transferred from Headquarters Madhuban to a Company at Panchkula on 12.1.2007. He could not report for duty at the new place of posting immediately as he claims to have fallen sick. Ultimately, the petitioner reported for duty at Panchkula on 27.1.2007. Commandant of the 2nd Battalion, Haryana Armed Police, of which the Company where the petitioner was posted formed part, issued a show cause notice to the petitioner, requiring him to answer as to why he should not be discharged from service under Rule 12.21 of the Rules for willful absence from duty for the period from 12.1.2007 to 26.1.2007. The petitioner submitted his reply, pleading that he was compelled by circumstances arising out of his sickness that he could not report for duty in time. The CIVIL WRIT PETITION NO.10297 OF 2010 :{ 3 }: petitioner claims to have produced documents to the effect that he was admitted as an outdoor patient at General Hospital, Rohtak, from 12.1.2007 to 23.1.2007 and thereafter had reported for duty after undertaking journey upon being declared fit to resume his duty. The petitioner complains that without considering this aspect of inability on his part, respondent No.4, his Commandant passed an order, discharging him from service by invoking Rule 12.21 of the Rules. In this background, the petitioner complains that this discharge was in violation of the procedure prescribed. As per the petitioner, he could have been removed on account of absence only after following a procedure prescribed of holding a regular enquiry as contained in Rule 16.24 of the Rules. The petitioner was further prejudiced, when his statutory appeal was not entertained and dismissed only on the ground that the same is not maintainable against the order of discharge. The petitioner thereafter had filed a revision on 25.7.2007 by invoking the enabling provisions of Rule 16.32 of the Rules but has heard nothing about the outcome thereof till date. The petitioner claims to have followed it up by filing a supplementary revision petition on 11.1.2010, when he was informed that no appeal etc. would lie against the order of discharge. He has accordingly filed the present writ petition. The sole grievance of the petitioner is that he has CIVIL WRIT PETITION NO.10297 OF 2010 :{ 4 }: been discharged from service due to his absence without considering his defence that he was sick and had taken treatment during the period he had remained away from duty. As per the petitioner, this order may look to be an innocuous one but in fact it is meant to punish the petitioner for his absence and, thus, was punitive in nature. The petitioner accordingly would contend that this order could not have been passed by invoking the provisions of Rule 12.21 of the Rules and could have been passed under the provisions of Rule 16.26 of the Rules. The issue requiring adjudication, thus, is whether this order can be termed as punitive and so could have been made under Rule 12.21 of the Rules or not. In other words, whether there was any need under law to pass this order by following a procedure as given in Rule 16.24 of the Rules. Rule 12.21 makes a provision for discharge of inefficient soldier. It provides that a Constable, who is found unlikely to prove an efficient police officer, may be discharged at any time within three years of his enrollment. This Rule further specifically provides that no appeal shall lie against the order of discharge passed under this Rule. Rule 12.21 of the Rules is as under:- “12.21 Discharge of inefficients – A Constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any CIVIL WRIT PETITION NO.10297 OF 2010 :{ 5 }: time within three years of enrolment. There shall be no appeal against an order of discharge under this Rule.” Object of this Rule is to pass an order simply discharging a police officer, who is considered inefficient and, thus, not likely to prove a good or efficient police officer. By invoking this power and jurisdiction, the employer does not terminate the services of an employee. If an employee acts in any wrong manner, then only the order of termination is passed. That being the position, it would not be necessary for the employer to adopt the procedure prescribed for imposing a penalty, which is generally done in those cases where any punitive order, terminating the services of an employee is required to be made. Such orders are passed only when the employer intends to punish the employee. Such an order of discharge otherwise can only be passed within three years of enrolment and, thus, a distinction has been made between a temporary and permanent employee. The provisions of Rule 12.21 of the Rules is clearly intended to provide an opportunity to the employer to watch the performance of a Constable and for that purpose there may not be a need to place a person on probation. If during this period, the Constable acquits himself properly, then he has a right to continue in service. CIVIL WRIT PETITION NO.10297 OF 2010 :{ 6 }: On the other hand, this Rule leaves a discretion with the Superintendent of Police to pass a simple order of discharge or alternatively to take penal action. From the wording of the Rule, it is clear that a Constable can be discharged from service under this Rule at any time within three years of his enrolment inspite of the fact that there is/was a specific allegation, which may even amount to misconduct. The Superintendent of Police has enabling powers and can form an opinion regarding the likelihood or otherwise of a Constable making a good police officer or not only on the basis of periodic reports but also on the basis of any other relevant material. This being the spirit and purpose of the Rule, the provisions of Rule 16.24 and Article 311 can only be attracted when the punishing authority decides to punish the Constable. (See Sher Singh Vs. State of Haryana, 1994 (3) SCT 1). In a way, this Rule is akin to a rule of probation and a Constable for a period of three years would always be under consideration like the probationist is. The concept of keeping a person on probation to test his suitability is a well known procedure under the service jurisprudence. The right of the probationist and the type of order that can visit them has always been a matter of debate before various judicial forums. In respect of a probationist, an employer always has an option to pass an innocuous order, discharging or CIVIL WRIT PETITION NO.10297 OF 2010 :{ 7 }: dispensing with the services of an employee even if there be a charge of misconduct against him without adopting the cumbersome procedure of holding an enquiry and passing an order of punishment. Sometimes, the Courts have also viewed that under the garb of order of discharge or innocuous order of release or termination in respect of a probationist or a temporary employee, he can not be visited with a punishment. If the order is either punitive in nature or is passed by way of punishment, giving it a colour of discharge of a probationist etc., then the Court even has the power to lift the veil and see if such an order is passed by way of punishment or simply an order of discharge, relieving/releasing the probationist or a temporary employee. Whether a particular order is punitive or innocuous or an order simpliciter of discharge, has always confronted various judicial forums and has been subject matter of debate even before the Hon'ble Apex Court. The submission made by counsel for the petitioner is that the order in fact has been passed by way of punishment and is actuated with the allegation of absence whereas it is shown to have been made and rather is made under Rule 12.21 of the Rules to give it a colour of being an innocuous order. Though not pleaded in this manner but the counsel would pray for this Court to lift the veil and see the real purpose and motive CIVIL WRIT PETITION NO.10297 OF 2010 :{ 8 }: behind this order and if it is found to be by way of punishment, then to set it aside being in violation of the procedure prescribed under the Rules. This line of submission is pursued by the counsel only on the basis of show cause notice, which was issued to him, when he reported for duty after remaining absent for a fortnight approximately, asking him to explain the cause of his absence. Copy of the show cause notice is placed on record as Annexure P-1. No doubt, the Commandant, 2nd Battalion H.P.Madhuban, had issued a show cause notice (Annexure P- 1), requiring the petitioner to explain as to why he had remained absent from duty with effect from 12.1.2007 to 27.1.2007 but on that basis and on the basis of his previous absence on 8 occasions, the view was formed that the petitioner was not taking interest in the service. The petitioner was specifically put to notice that he was unlikely to prove an efficient police officer. Thus, this show cause notice was issued under Rule 12.21 and it is so specifically mentioned in the show cause notice itself. Rather, the Commandant had given an opportunity to the petitioner to show cause if he wish to say anything, which indeed was not required under Rule 12.21 of the Rules. This show cause notice, thus, can not be termed as something which was aimed at awarding any punishment to the petitioner. The CIVIL WRIT PETITION NO.10297 OF 2010 :{ 9 }: petitioner was clearly apprised that action was proposed against him under Rule 12.21 of the Rules, which clearly empowered the Superintendent of Police concerned to pass this order within the period of first three years of the service of the petitioner. The doubt in regard to the nature of the order can clearly be dispelled from the wording of the order itself. There is neither any mention made in the order showing this order to be punitive in nature nor it conveys any such sense. The order clearly is an innocuous and is worded in a simple language and clearly mentioned to be under Rule 12.21 of the Rules. The impugned order reads as under:- “Constable Rahul No.2/202 of this Bn. is discharged from service with immediate effect under rule 12.21 of Punjab Police Rules 1934, as he is unlikely to prove an efficient Police Officer. Sd/- Suman Manjari, Commandant, 2nd Bn., HAP, Madhuban” In the background, as noticed above there is not much justification to go into the number of judgements cited by counsel for the petitioner, which apparently would have no applicability to the facts of the case. Still to be fair to the counsel for the petitioner, the judgements referred to are being noticed. The counsel has first referred to Guru Nanak Dev CIVIL WRIT PETITION NO.10297 OF 2010 :{ 10 }: University, Amritsar and others Vs. Jaspal Singh, 2011(2)RSJ 699. While interpreting the statute of Guru Nanak University, this Court has observed that absence from duty and overstayed of leave is considered to be a misconduct and holding of an enquiry is must. There would not be any dispute about this proposition of law but the petitioner was a probationist and the employer had an option either to proceed against him for misconduct or to invoke the alternative available to the respondents to pass an order, for which there are sufficient power available under Rule 12.21 of the Rules. The judgement relied upon by the petitioner does not in any manner indicate if it was a case of probationist or order was passed as such by way of punishment. The counsel then refers to Ex.Constable Balwant Singh Vs. State of Haryana, 1991 (1) RSJ 680, where this Court has viewed that absence from duty can not be described as willful or wanton and also can not said to be a gravest act of misconduct. This was a case of imposing a penalty of dismissal from service, which was held not warranted under the circumstances. How this case would be attracted to the facts of the present case, which is not that of a dismissal but of a discharge under Rule 12.21 is not understood. Moreover, this was not a case of one absence but a conduct on the part of the petitioner to remain absent CIVIL WRIT PETITION NO.10297 OF 2010 :{ 11 }: off and on during the first three years of service, which could justify the opinion formed that the petitioner was unlikely to be an efficient police officer. Reference to the case of Anoop Jaiswal Vs. Government of India and others, 1984 (1) All India Service Law Journal 428 again appears to be ill founded. This was a case where discharge from service was found to be on account of misconduct but only an innocuous order was passed. The Hon'ble Supreme Court observed that form of an order is not decisive and where it is merely a camouflage for an order of dismissal, then the order of discharge can be set-aside on the ground that reasonable opportunity to defend was not given. No doubt that the form of order is not decisive but what is required to be seen is what is the foundation of order. If the misconduct is found to be the foundation of the order, then perhaps it can be termed as a punitive one but if such a misconduct is something which is only a motive of passing the order, which is innocuously expressed, then it can not be termed as punitive in nature. Generally speaking, all forms of terminations would be by way of punishment. Still one would talk of order being simpliciter in nature or it being stigmatic. Strikingly, the stigma is implicit in the termination order but simple termination is not considered stigmatic. A termination order which explicitly states what is implicit in every order of CIVIL WRIT PETITION NO.10297 OF 2010 :{ 12 }: termination of a probationer's appointment is also not stigmatic. The question then may be as to what is stigmatic order? In order to amount to a stigma, the order must be in a language, which impute something over and above mere unsuitability for the job. In fact, Courts have always had to perform the balancing act between denying a probationer any right to continue in service while at the same time granting him right to challenge the termination of his service when it is by way of punishment. It is noticed that law has developed a long way and as noticed by the Supreme Court, apparently in illogical lines in determining when termination of temporary appointee's or a probationer's service amounts to punishment. The Hon'ble Supreme Court has also felt that need was not so much to reach perfect justice but to lay down a plain test, which the Administrator, Civil Servant etc. can understand subtly and without any difficulty. The development in this field of law basically started in 1958 with the case of Purshotam Lal Dhingra Vs. Union of India, AIR 1958 Supreme Court 36. Though the field thereafter has been covered by various Constitutional Benches decisions but still there has been a diverse judicial trend, which is difficult to be disciplined into one single simple practical formula applicable to termination of probationer or fresher and of service of temporary CIVIL WRIT PETITION NO.10297 OF 2010 :{ 13 }: employee. There have been two lines of cases, which have dealt with this question. In certain cases of temporary servant or probationer, it has been viewed that if exparte enquiry or a report is a motive for termination order, then it is not punitive, merely because the principles of natural justice have not been followed. Other line of cases are those where the Courts have held that the facts revealed in enquiry are not the motive but the foundation of the termination of service of the temporary servant or probationer and hence, punitive as principles of natural justice have not been followed. To find out which case will fall in which category, it is permissible for the Courts to go behind the order and look into the record of proceedings, the antecedents and the attendant circumstances culminating in the order of termination. It is, however, not clear enough as to in what situation allegation of misconduct would be motive and in which it will be foundation. D.Smith says “proximity between investigation and act or decision depends upon the degree of proximity so far as the person effected claiming a right of hearing is concerned”. He further says “where a person holds a preliminary investigation with a view to recommending a formal enquiry or a hearing, is not normally under obligation to comply with the rules of fairness but he may be placed CIVIL WRIT PETITION NO.10297 OF 2010 :{ 14 }: under such an obligation if investigation is an integral part of process, which may terminate in action adverse to the interest of person claiming to be heard before him”. The Hon'ble Supreme Court has observed that these principles are close to what was held in Samsher Singh Vs. State of Punjab and another, (1974) 2 Supreme Court Cases 831. The development of law accordingly was noticed by the Supreme Court between the years 1958 and 1974 in the first phase i.e. between Purshotam Lal Dhingra's and Samsher Singh's cases (supra). During this period, seven judgements have been delivered by the Hon'ble Supreme Court. The detailed reference to all these decisions may not be necessary having regard to the factual controversy involved in this case but the test of motive and foundation, as already notice, was laid down in Purshotam Lal Dhingra's case (supra). In The State of Bihar Vs. Gopi Kishore Prasad, AIR 1960 Supreme Court 689, the Hon'ble Supreme Court has laid down the test of enquiry. Government had come to the conclusion on the basis of enquiry that the employee was unsuitable for the post and because of the enquiry it was viewed that the order was passed by way of punishment. If the enquiry was to find suitability, then it was held not to be a punishment. State of Orissa Vs. Ram Narayan Dass, AIR 1961 Supreme Court 177 gave new dimension to the legal principles in this regard. It CIVIL WRIT PETITION NO.10297 OF 2010 :{ 15 }: is observed that where it is proposed to terminate the probationer for any specific fault or for unsuitability, he may be apprised of the ground for such proposal. This new test came to be applied to look into the object and purpose of enquiry. If the enquiry is to ascertain his fitness, then it is not the same which is to find out about misconduct. Later, difficulty to understand the difference between motive and foundation came to be expressed in some of the cases. In Samsher Singh's case (supra), the enquiry conducted in the case was not held to be a preliminary enquiry and the order was, thus, termed as punitive. The difficulty to understand the difference between motive and foundation to an extent was removed in Gujarat Steel Tubes Ltd. and others Vs. Gujarat Steel Tubes Mazdoor Sabha and others, (1980) 2 Supreme Court Cases 593. In this case, the Hon'ble Supreme Court observed that the Court will find out from other proceedings or documents connected with formal order of termination what the true ground for termination is. If punitive in flavour in cause or consequence, it is dismissal and if it falls short it can not be called punitive. Importantly, the Hon'ble Supreme Court in this case has held that even if there is a suspicion of misconduct, the Master may say that he does not want to bother about it and may not go into his guilt but may feel like not keeping a man, he is not happy CIVIL WRIT PETITION NO.10297 OF 2010 :{ 16 }: with. He may not like to investigate nor take the risk of continuing a dubious element. In other words, it is motive if the Master after gathering some prima-facie facts does not wish to go into the truth. If he conducts enquiry for the purpose of proving a misconduct an employee is not heard, it is case of foundation. This in fact would answer the issue in the present case. The order has been expressed in a form, which does not give any indication of it being punitive. It is a simple innocuous order of discharge, which also contains a reference to the legal provision under which this order has been so made. There was no enquiry held. Only a show cause notice was issued. Show cause notice was also not for taking any action but was only to apprise the petitioner that he is not likely to be a efficient police officer and, therefore, put to notice for discharge under the enabling provisions in this regard. The submission that enquiry ought to have been held as it was due to absence that this action was being proposed is apparently misplaced. The absence or a show cause notice was not the foundation of the order of discharge but was only a motive, which moved the authorities to invoke their jurisdiction to pass this order, which is not punitive in nature. CIVIL WRIT PETITION NO.10297 OF 2010 :{ 17 }: This question was also considered by this Court in Civil Writ Petition No.2738 of 1989 (Prem Parkash Vs. The State of Haryana and others), decided on 23.10.2009. The court in this case has also examined to see if the incident, which led to passing of the order, was a motive or inducing factor or was the foundation of an order of discharge, ordered under Rule 12.21 of the Rules. Judgements in the cases of State of Punjab Vs. Balbir Singh, JT 2004 (7) SC 383 and Radhey Shyam Gupta Vs. U.P.State Agro. Industries Corporation Ltd., (1999) 2 SCC 21 were noticed, where this issue was exhaustively dealt with from all aspects. In Radhey Shyam's case (supra), a reference has been made to number of other decisions to notice that