1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Tulchha Ram Vs. State of Rajasthan & ors. (D.B. CIVIL SPECIAL APPEAL (WRIT) NO.1/2001) D.B.CIVIL SPECIAL APPEAL(WRIT) UNDER SECTION 18 OF THE RAJASTHAN HIGH COURT ORDINANCE AGAINST THE JUDGMENT DATED 24.11.2000 PASSED BY HON'BLE DR.B.S.CHAUHAN J. IN S.B.CIVIL WRIT PETITION NO.3347/1997. ***** DATE OF JUDGMENT: JULY 19, 2007 P R E S E N T HON'BLE THE ACTING CHIEF JUSTICE MR.J.M.PANCHAL HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.Marudhar Mridul, Sr.Advocate with Mr.Ashok Choudhary, Advocate, for the appellant Mr.Shyam Ladrecha, Additional Government Advocate BY THE COURT(PER HON'BLE MR.PANCHAL ACTG .C.J.) What is challenged in the instant appeal filed under Section 18 of the Rajasthan High Court Ordinance is the legality of judgment dated November 24, 2000 rendered by the learned Single Judge of this Court in S.B.Civil Writ Petition No.3347/1997 2 by which prayer made by the appellant to quash the order dated April 15, 1993 passed by the Deputy Inspector General of Police, Ajmer Range, Ajmer discharging him from service during the period of probation, is rejected. The appellant was selected as Sub Inspector of Police in the year 1991. On completion of training, he was posted in District, Nagaur for practical training as a probationer vide order dated June 1, 1992. While he was posted at Police Station, Deedwana, one Habib Khan lodged F.I.R. No.43/1997 for alleged commission of offences by the appellant and other police personnel punishable under Sections 394, 365 & 342 of the Indian Penal Code on April 7, 1993 at Police Station, Ladnu mentioning inter alia that while he was coming from Ajmer by bus, in the intervening night of April 5, 1993 and April 6, 1993, he was robbed of Rs.2,40,000/- at Mangalpura by the police party. The appellant was arrested on April 8, 1993 and lodged in Jail. However, the criminal case registered against him resulted into his acquittal as most of the witnesses turned hostile. On administrative side, the Superintendent of Police, Nagaur suggested to the Deputy Inspector General of Police, Ajmer Range, to initiate departmental enquiry against the appellant on the basis of misconduct, but instead of proceeding with the enquiry, the competent authority passed an order discharging 3 the appellant from service. Though an appeal is not maintainable under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, the appellant filed an appeal, after his acquittal, before the Deputy Inspector General of Police against the order of discharge from service, but the same was rejected vide order dated May 2, 1997 on the ground that his services were not satisfactory during the period of probation. Feeling aggrieved by order of discharge from service the appellant invoked extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India by filing S.B.Civil Writ Petition No.3347/1997. The learned Single Judge has dismissed the petition by reasoned order dated November 24, 2000 running into 21 pages, giving rise to the instant petition. Mr.Marudhar Mridul, learned Senior Advocate with Mr.Ashok Choudhary, Advocate, for the appellant contended that the term “discharge” used in the order dated April 15, 1993 was as a matter of fact a cloak as the appellant was as a matter of fact dismissed from service and, therefore, the petition should have been allowed by the learned Single Judge. It was argued that in Para 4 of the affidavit in reply filed in the petition, it was stated that “Looking to the conduct of the petitioner that while on duty he snatched Rs.2,30,000/- from one Shri Habib Khan, it 4 was decided by the Deputy Inspector General of Police that the petitioner is not fit enough to be retained in service, therefore, he was discharged from services as he was on probation” which makes more than clear that the appellant was discharged from service by way of punishment without holding any enquiry and, therefore, the relief claimed in the petition should have been granted by the learned Single Judge. What was maintained by the learned counsel for the appellant was that this is not a case of discharge Simpliciter of a probationer from service and as the complaint filed by Habib Khan against the appellant and others was the foundation for discharging the appellant from service but not motive, the appeal should be accepted. The learned counsel for the appellant emphasised that reasons assigned by the learned Single Judge while dismissing the petition filed by the appellant are contrary to the several reported decisions of the Supreme Court on the point and, therefore, the same should be set aside by allowing the appeal. In support of these submissions the learned counsel for the appellant relied upon the decisions (1) The State of Bihar & Ors. vs. Shiva Bhikshuk Mishra – 1970 (2) SCC 871, (2) Samsher Singh vs. State of Punjab & Anr. - (1974) 2 SCC 83, (3) Governing Council of Kidwai Memorial Institute of Oncology, Bangalore vs. Dr.Pandurang Godwalkar & Anr. - AIR 1993 SC 392, (4) Bishan Lal Gupta vs. The State of Haryana & Ors. - AIR 1978 SC 363, (5) In Re: In the matter of 5 T.V.Choudhary with E.S.Reddi vs. Chief Secretary, Government of A.P. & Anr. - (1987) 3 SCC 258, (6) K.Sukhendar Reddy vs. State of A.P. And Anr. - (1999) 6 SCC 257 & (7) Chandra Prakash Shahi vs. State of U.P. & Ors. - (2000) 5 SCC 152. Per contra Mr.Shyam Ladrecha learned Additional Government Advocate contended that the order of discharge is Simpliciter in character and as it does not cast any stigma, nor make any aspersion on the integrity or efficiency of the appellant, the learned Single Judge was justified in dismissing the petition. What was asserted on behalf of the respondent was that involvement of the appellant in the criminal case provided a motive but was never the foundation of the order of discharge from service as no enquiry had been held to ascertain the correctness of the allegations made therein and, therefore, the order was rightly held to be an order discharging the appellant from service Simpliciter without casting any stigma, by the learned Single Judge. The learned counsel for the State Government pleaded that no illegality is committed by the learned Single Judge in dismissing the petition, which would warrant interference and, therefore, the appeal should be dismissed. In support of these submissions the learned counsel for the State Government placed reliance on the decisions in (1) Samsher Singh vs. State of Punjab & Anr. - (1974) 2 SCC 831 6 and (2) State of Gujarat vs. Sharadchandra Manohar Neve – AIR 1988 SC 338. This Court has heard the learned counsels for the parties at length and in great detail. This Court has also considered the documents forming the part of the appeal as well as original petition filed by the appellant. The free translation of order of discharge dated April 15, 1993 would read as under:- “Shri Tulchha Ram S/o Asha Ram Sub Inspector(Probationer) District Nagaur is discharged from government service forthwith.” It is not in dispute that when the above quoted order was passed, the appellant was appointed on probation for a period of two years vide order dated June 1, 1992. Within a period of about 10 months from the date of appointment, he was arrested on April 8, 1993 and was lodged in Jail when the order of discharge was passed. Admittedly, the order of discharge was passed without holding any enquiry into the incident of robbery though it was so suggested by the Superintendent of Police, Nagaur to the competent authority. The issue posed for consideration of this Court has been considered by the Supreme Court in catena of reported 7 decisions. As observed earlier, the learned counsels for the parties have cited certain decisions for the guidance of this Court. However, this Court is of the opinion that the decisions cited at the Bar by the learned counsels for the parties turn on their own facts and, therefore, this Court has avoided detailed reference to the same, but proposes to refer to those decisions wherein the contentions raised in the instant appeal were dealt with and answered. In Kunwar Arun Kumar vs. U.P. Hill Electronics Corporation Ltd. & Ors – (1997) 2 SCC 191, during the period of probation, the work of the appellant therein was found to be unsatisfactory. Therefore, his services were terminated as per Clause (2) of letter of appointment. The appellant 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, the High Court dismissed the writ petition. Thereupon, the appellant approached the Supreme Court and contended that without conducting enquiry and giving an opportunity to the petitioner, he was discharged from service which was a stigma and, therefore, the order should be set 8 aside by the Supreme Court. While negativing the said contention, the Supreme has held that during the period of probation, the authorities are entitled to assess the suitability of the candidate 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. What is highlighted by the Supreme Court in the said decision is that 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, which would not amount to any stigma at all. Again in H.F.Sangati vs. Registrar General, High Court of Karnataka & Ors. - (2001) 3 SCC 117, the appellants were appointed on probation in the Karnataka Judicial Services as Munsifs. The Administrative Committee of the High Court, after considering their confidential records and remarks given by their superiors on assessment of their work, formed an opinion that their performance as a Judicial Officer was not satisfactory for their confirmation on that post. That opinion was considered and accepted by the Full Court. The High Court made a reference 9 to the State Government which in turn issued a notification discharging them from service on the ground of their unsuitability to hold the post of Munsif. After unsuccessfully challenging the said notification before the High Court, the appellants approached the Supreme Court contended that the order of discharge was not an order of discharge simpliciter but was stigmatic as the same declared the appellants to be unsuitable to hold the post of Munsif. The Supreme Court found that the order of discharge was passed in strict compliance with the requirements of Rule 6 and it did not cast any stigma on the appellants nor was it punitive, as a result of which there was no requirement to comply with the principles of natural justice, much less to hold any formal enquiry before making the order. In that view of the matter, the Supreme Court dismissed appeals filed by Munsifs. In High Court of Judicature at Patna vs. Pandey Madan Mohan Prasad Sinha & Ors. - (1997) 10 SCC 409, the respondent was appointed as Munsiff on probation. His service record contained several adverse remarks during the period from 1976 to 1982. In the course of an inspection by a High Court Judge in 1983 the conduct and antecedents of the respondent were reported to be very much undesirable and unbecoming of a Judicial Officer. Apart from the complaints touching his integrity 10 with respect to his judicial work, serious complaints regarding his character and morality were also received. It was reported that he used to drink heavily and play flush in the town with different rich persons. On June 19, 1985 after considering the matter of confirmation of respondent No.1 and finding that he was not fit for confirmation, the High Court decided that a recommendation be made to the State Government that the temporary services of respondent as Munsif were no longer required and that his services should be terminated. The said decision of the High Court was communicated to the State Government by letter dated August 5, 1985. The adverse remarks for the years 1976- 77 and 1979-80 had been communicated to respondent No.1 prior to the High Court took the decision on June 19, 1985. On August 29, 1986 an order was passed terminating the services of the respondent. The respondent filed a writ petition in the High Court which was allowed on two grounds: (1) non- communication of adverse remarks prior to the High Court's decision dated June 19, 1985 vitiated the order for termination of services of the respondent, and (2) the order of termination was passed by way of punishment without complying the requirement of Article 311(2). While allowing the appeal the Supreme Court has held that a probationer does not have a right to hold the post during the period of probation and the position of a probationer cannot be equated with that of an employee 11 who has been substantively appointed on a post and has a right to hold that post. The Supreme Court has further explained that an order terminating the services of a probationer can be questioned only if it is shown that it has been passed arbitrarily or has been passed by way of punishment without complying with the requirements of Article 311(2) of the Constitution. According to the Supreme Court since a probationer has no right to hold the post on which he has been appointed on probation, he cannot claim a right to be heard before an order terminating his services is passed. The Supreme Court has further held that the obligation to communicate the adverse material to a person before taking action against him on the basis of the said material is a facet of the principles of natural justice, but principles of natural justice have no application in the case of termination of the services of a probationer during the period of probation since he has no right to hold the post. What is emphasised in the said decision is that there is no obligation to communicate the adverse material to a probationer before a decision is taken on the basis of the said material that he is not fit for being retained in service and such material can be relied upon to show that such a decision does not suffer from the vice of arbitrariness and is not capricious. After taking into consideration the facts, the Supreme court took the view that decision to terminate the services of respondent was taken by the High Court after 12 considering the entries in the service record of the respondent covering the entire period of probation and, therefore, it was difficult to come to the conclusion that the decision of the High Court was founded on any particular act of misconduct. What was noticed by the Supreme Court in the said case was that the reports were taken into consideration for assessing the performance of respondent No.1 during the period of probation and for determining whether he was fit for confirmation on the post of Munsif. In view of these principles Para 4 of the affidavit in reply referred to by the learned counsel for the appellant will have to be regarded as explanation by the respondents to show that the decision to discharge the appellant from the service was neither arbitrary nor capricious and cannot be treated as one indicating that the order of discharge is punitive or stigmatic. Again in Krishnadevaraya Education Trust & Anr. vs. L.A. Balakrishna – (2001) 9 SCC 319, the question considered was whether termination of services of the respondent was simpliciter or punitive. The services of the respondent were terminated by non-speaking order. Validity of the said order was challenged by the probationer. The employer in response to the challenge stated that the services of the petitioner were not satisfactory. The question considered by the Supreme Court was whether such a statement made by the employer would indicate 13 that the termination was by way of punishment. The Supreme Court has held that mere fact that earlier a Committee appointed to go into the general performance of each staff had, on the basis of record, formed an opinion that petitioner's job proficiency was not up to the mark, would not render such an order of termination invalid. After considering the statement made by the employer, the Supreme Court held that the statement of the employer would not mean that services of the respondent were terminated by way of punishment. In Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences & Anr. - (2002) 1 SCC 520, the Supreme Court has authoritatively ruled that 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 turpitude or misconduct which (c) culminated in a finding of guilt. What is emphasised by the Supreme Court is that if all three factors are present the termination of service would be held to be punitive irrespective of the form of the termination order and conversely, if any one of the three factors is missing the termination will have to be upheld. Applying the principles laid down by the Supreme 14 Court in above quoted decisions to the facts of the instant case, this Court finds that no enquiry whatsoever was made by the respondent relating to the FIR lodged by Habib Khan. The order of discharge from service casts no stigma on the appellant. Secondly no enquiry was made, which culminated into finding of guilt as explained by the Supreme Court. The competent authority was entitled to take into consideration the report of the S.P. for the purpose of assessing the suitability of the appellant or otherwise for retaining him in service during the period of probation. Rule 39 of Rajasthan Police Subordinate Service Rules, 1989 reads as under:- “39. Confirmation, extention of probation and discharge – A member of the service who successfully completes his probation period and passes the Departmental Examination prescribed by Director General of Police shall be eligible for confirmation at the end of the probation period, provided the Appointing Authority is satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation.” On the facts and in the circumstances of this case, this Court is of the opinion that the competent authority was justified on the basis of the report of Superintendent of Police for coming to the conclusion that the appellant was not fit for confirmation in service in terms of Rule 39 quoted above. This Court is of the firm view that the incident of filing of the FIR by 15 Habib Khan was never made foundation for the purpose of discharging the appellant from service but provided motive and, therefore, the learned Single Judge did not commit any error in dismissing the petition filed by the appellant. The learned counsel for the appellant has failed to persuade this Court to take a view different than one taken by the learned Single Judge and, therefore, the order passed by the learned Single Judge does not call for any interference. The appeal filed by the appellant therefore, deserves to be dismissed. For the foregoing reasons, the appeal fails, and is hereby dismissed. There shall be no orders as to cost. (BHANWAROO KHAN) J. (J.M.PANCHAL) ACTG.C.J. BKS/-