1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Gopa Ram v. State of Rajasthan & Anr. S.B.CIVIL WRIT PETITION NO.1913/1993 under Article 226 of the Constitution of India. Date of Order : 18th July, 2005 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Ashok Chhangani, for the petitioner. Mr. B.L.Tiwari, Addl.Govt.Advocate. BY THE COURT : By this petition for writ a challenge is given by the petitioner to the order dated 16.4.1991 passed by Superintendent of Police, Pali discharging the petitioner from service being found his services unsatisfactory during probation. The facts in brief giving rise to present petition are as follows:- By an order dated 18.9.1989 passed by Superintendent of Police, Pali appointment was given to the petitioner to the post of Constable in 2 Rajasthan Police on being selected by a competent selection board constituted under Rajasthan Civil Services (Police Subordinate Service) Rules, 1989 (hereinafter referred to as “the Rules of 1989”). The appointment of the petitioner was placed on probation for a period of two years in accordance with Rule 37 of the Rules of 1989. After successful completion of training at Police Training Centre, Kishangarh the petitioner was posted at police lines, Pali by an order dated 10.12.1990. The Superintendent of Police, Pali by order impugned dated 16.4.1991 discharged the petitioner from service being the same found not satisfactory during the period of probation. The order dated 16.4.1991 is in vernacular script and the Superintendent of Police used the term “NISHKASHIT (DISMISS)” while discharging the petitioner from service. The petitioner has given challenge to the order impugned dated 16.4.1991 on following grounds:- (1)According to Rule 39 of the Rules of 1989 the petitioner shall be eligible for confirmation at the end of probation period, as such appointing authority is required to assess service of an employee on probation only on completion of the period of probation and not before it. The appointing authority in the present case discharged the 3 petitioner before the end of period of probation without having any occasion to assess and evaluate the services rendered by him. Thus the discharge of petitioner during period of probation is illegal. (2)The order dated 16.4.1991 is liable to be quashed being an out come of certain findings arrived at behind the back of the petitioner and those findings are foundation of the order impugned. No such order could have been passed without holding an inquiry as provided under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred as “the Rules of 1958”). (3)The order passed by the appointing authority is an order of dismissal and not of discharge simplicitor as the appointing authority used the term “dismiss” in the order impugned. Dismissal is a punishment and the same is liable to be quashed as the severest punishment provided under the Rules of 1958 has been imposed in violation of provisions of Article 311 of the Constitution of India and without holding proceedings required under the Rules of 1958. On behalf of the respondents a reply to the writ petition has been filed. It is contended by the respondents that services of the petitioner were not at all satisfactory during the period of probation. He was negligent in duties and was in habit of remaining absent from duties. The petitioner during his short service tenure remained absent from duties for 83 4 days, details of which mentioned in reply to the writ petition are as under:- “i- from 11.6.1990 to 13.6.1990 3 days. ii- on 22.9.1990 1 day. iii-from 20.12.1990 to 31.12.1990 12 days. iv- from 18.1.1991 to 19.2.1991 33 days. v- from 23.2.1991 to 22.3.1991 28 days. vi- from 25.3.1991 to 26.3.1991 1 day. vii-from 30.3.1991 to 3.4.1991 5 days. The respondents have contended that after general assessment of the services rendered by the petitioner the appointing authority considered it appropriate to discharge the petitioner from service being unsatisfactory. The respondents have also placed on record various documents whereby the officer supervising the petitioner's services conveyed about unsatisfactory working and habit of petitioner with regard to remaining absent from duties without permission. No rejoinder to the reply has been filed on behalf of the petitioner. I have heard counsel for the parties. The first contention of the counsel for the petitioner is that in view of Rule 39 of the Rules of 5 1989 the services of the petitioner could have not been discontinued during the period of probation. It is contended by the counsel for the petitioner that under Rule 39 of the Rules of 1989 the appointing authority is required to assess services rendered by a probationer at the end of probation period and not prior to it. The appointing authority in present case assessed service rendered by the petitioner prior to end of probation period which is not permissible under the Rules of 1989 and the same makes the order impugned illegal and liable to be quashed. I do not find any merit in the contention raised by the counsel for the petitioner. A probationer has no right to hold the post and his services can be terminated at any time during or at the end of period of probation on account of general unsuitability for the post he is holding. Rule 39 of the Rules of 1989 no where restricts the power of the appointing authority to discharge a probationer during the period of probation. Rule 39 of the Rules of 1989 to the extent it is relevant in present controversy reads as under:- “39.Confirmation, extension of probation and discharge.-A member of the service who successfully completes his probation period and passes the Departmental Examination 6 prescribed by Director General of Police shall be eligible for confirmation at the end of the probation period, provided then Appointing Authority is satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation. Explanation.-(5)A probationer reverted or discharged from service during or at the end of the period of probation under sub-rule (1), shall not be entitled to any compensation.” From reading of Rule 39 of the Rules of 1989 it is apparent that at the end of period of probation the appointing authority is required to confirm a probationer on being satisfied about integrity of the employee and if he is otherwise fit for confirmation. Rule 39 of the Rules of 1989 relates to confirmation of an employee on completion of probation period and it is nothing to do with discharge of a probationer during probation if his services are not found satisfactory. It is well settled that a probationer remained under vigil of his superior officers everyday and his service is subject to assessment at every moment. Suggestion of counsel for the petitioner that assessment of service rendered by a probationer is required to be made on completion of end of period of probation is absolutely contrary to the concept of keeping an employee on probation. 7 It is further pertinent to note that Explanation(5) to Rule 39 of the Rules of 1989 refers that a probationer shall not be entitled to any compensation in the event of his discharge from service during or at the end of period of probation. This reference also makes it clear that the intention of Rule 39 of the Rules of 1989 is not as suggested by the counsel for the petitioner. There is no need to continue a probationer in service till the period of probation completes if he fails to discharge his duty and serve the appointing authority satisfactorily. The second contention of the counsel for the petitioner is that the order dated 16.4.1991 is liable to be quashed being an out come of the findings arrived at behind the back of the petitioner and those findings are foundation of the order impugned. According to the counsel for the petitioner the foundation of the order impugned is a finding pertaining to misconduct given by the disciplinary authority after holding an inquiry behind the back of the petitioner and, therefore, the order impugned is illegal. It is well settled that validity of an order discharging a probationer from service is required to be examined by adjudicating a question as to whether any act of the probationer giving rise to order of discontinuation from service is foundation of the 8 action taken or merely a motive? To adjudicate this question it is essential to understand the ingredients of “foundation” and “motive” behind the order. Hon'ble Supreme Court in the case of Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and others, reported in AIR 1999 SC 983, dealt with this issue at length. Their Lordships in the case of Dipti Prakash Banerjee (supra) held as under:- “If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid.” In the case of Chandra Prakash Shahi v. State of U.P. and others, reported in AIR 2000 SC 1706, 9 Hon'ble Supreme Court in quite detail considered this issue and interpreted the terms “foundation” and “motive” as under:- “28.-The important principles which are deducible on the concept of “motive” and “foundation”, concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of “motive”. 29.-”Motive” is the moving power which implies action for a definite result, or to put it differently, “motive” is that which incites or stimulates a person to do an act. 10 An order terminating the services of an employee is an act done by the employer. What is that factor which implied the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry.” Applying the principles laid down by Hon'ble Supreme Court in the cases referred above in the facts of present case I noticed that the petitioner who was recruited as a Constable in Rajasthan Police remain absent from duties without any information on number of occasions. This Act of the petitioner was noticed by the authorities in subordination of whom the petitioner was working. Information in this regard was given to the appointing authority. On one occasion the petitioner was found sitting at a tea stall during duty hours. The petitioner continuously remained absent from duties without information for a period of 33 days. The appointing authority by taking into consideration all these acts without holding any inquiry and without giving any finding reached at the conclusion that services of the petitioner were not 11 satisfactory and, therefore, he was not suitable to hold the post. From reading of reply to the writ petition and from perusal of documents annexed thereto it is apparent that no finding was given by appointing authority adverse to the petitioner. The order of discharge is an out come of assessment of service rendered by the petitioner made by the appointing authority. In view of it, it is nothing but mere motive which gave rise to order impugned. The last contention of the counsel for the petitioner is that use of term “dismiss” in the order impugned itself shows that the order is not of discharge simplicitor but is stigmatic. In my considered opinion this argument of the counsel for the petitioner is also devoid of merit. The nature of an order is required to be assessed from the proceedings giving rise to it and not merely by a single word used in it. Dismissal is a punishment provided under Rule 14 of the Rules of 1958 and the same is required to be imposed by holding an inquiry for definite charges of misconduct. In the present case as I have already held above that no finding was recorded by the authority competent against the petitioner and, therefore, the 12 order impugned is nothing but an order of discharge simplicitor. In view of whatever discussed above I do not find any merit in the writ petition and the same is hereby dismissed with no order as to costs. ( GOVIND MATHUR ),J. kkm/ps.