SUPREME COURT OF INDIA
State of Punjab
Vs
Balbir Singh
Appeal (Civil) 6342 of 2001
(Y. K. Sabharwal and D.M.Dharmadhikari)
13/09/2004
Y. K. SABHARWAL, J.
The factual background which has given rise to this appeal is that:
The respondent, who was appointed a Constable on 16.03.1991, was discharged
from service with effect from 17th March, 1993 by an order dated March 19, 1993
passed by the Senior Superintendent of Police under the Punjab Police Rule
12.21. Rule 12.21 of Punjab Police Rules, 1934 provides that "a Constable
who is found unlikely to prove an efficient police officer may be discharged by
the Senior Superintendent of Police at any time within three years of
enrolment. There shall be no appeal against the order of discharge under this
Rule". * The Order of discharge states that "Balbir Singh has been
found unlikely to prove to be efficient police officer. Hence he is hereby
discharged from service under PPR 12.21 with immediate effect i.e. 17.03.1993."
* The appeal and the revision filed by the respondent were dismissed by Deputy
Inspector General of Police and Director General of Police respectively.
In a suit filed by the respondent, the civil court held the termination order
to be illegal, null and void and set it aside. Respondent was directed to be
reinstated in the service with all rights, benefits and privileges. The first
appeal filed by the State was dismissed by the Additional District Judge,
Patiala and the second appeal by the High Court by the impugned judgment which
is under challenge in the present appeal.
The sole question for determination is whether the order of discharge was
punitive and, therefore, illegal having been passed without conducting any
disciplinary inquiry. The High Court relying upon the decision in Smt. Rajinder
Kaur v. State of Punjab & Anr. [ has held the order of discharge to
be violative of Article 311 (2) of the Constitution of India. Before examining
this decision, it would be useful to notice other decision relevant on the point
in issue.
In Parshotam Lal Dhingra v. Union of India 1958 SCR 828], this Court said
:
"The position may, therefore, be summed up as follows : Any and every
termination of service is not a dismissal, removal or reduction in rank. A
termination of service brought about by the exercise of a contractual right is
not per se dismissal or removal, as has been held by this Court in Satish
Chander Anand v. The Union of India (supra). Likewise the termination of
service by compulsory retirement in terms of a specific rule regulating the
conditions of service is not tantamount to the infliction of a punishment and
does not attract Art. 311(2), as has also been held by this Court in Shyam Lal
v. The State of Uttar Pradesh [(1955) 1 S.C.R. 26]. In either of the two
abovementioned cases the termination of the service did not carry with it the
penal consequences of loss pay, or allowances under r. 52 of the Fundamental
Rules. It is true that the misconduct, negligence, inefficiency or other
disqualification may be the motive or the inducing factor which influences the
Government to take action under the terms of the contract of employment or the
specific service rule, nevertheless, if a right exists, under the contract or
the rules, to terminate the service the motive operating on the mind of the
Government is, as Chagla C.J. has said in Shrinivas Ganesh v. Union of India
(supra), wholly irrelevant. In short, if the termination of service is founded
on the right flowing from contract or the service rules then, prima facie, the
termination is not a punishment and carries with it no evil consequences and so
Art. 311 is not attracted. But even if the Government has, by contract or under
the rules, the right to terminate the employment without going through the
procedure prescribed for inflicting the punishment of dismissal or removal or
reduction in rank, the Government may, nevertheless, choose to punish the
servant and if the termination of service is sought to be founded on
misconduct, negligence, inefficiency or other disqualification, then it is a
punishment and the requirements of Art. 311 must be complied with. As already
stated if the servant has got a right to continue in the post, then, unless the
contract of employment or the rules provide to the contrary, his services
cannot be terminated otherwise than for misconduct, negligence, inefficiency or
other good and sufficient cause. A termination of the service of such a servant
on such grounds must be a punishment and, therefore, a dismissal or removal
within Art. 311, for it operates as a forfeiture of his right and he is visited
with the evil consequences of loss of pay and allowances. It puts an inedible
stigma on the officer affecting his future career. A reduction in rank likewise
may be by way of punishment or it may be an innocuous thing. If the Government
servant has a right to a particular rank, then the very reduction from that
rank will operate as a penalty, for he will then lose the emoluments and
privileges of that rank. If, however, he has no right to the particular rank,
his reduction from an officiating higher rank to his substantive lower rank
will not ordinarily be a punishment. But the mere fact that the servant has not
title to the post or the rank and the Government has, by contract express or
implied, or under the rules, the right to reduce him to a lower post does not
mean that an order of reduction of a servant to a lower post or rank cannot in
any circumstances be a punishment. The real test for determining whether the
reduction in such cases is or is not by way of punishment is to find out if the
order for the reduction also visits the servant with any penal consequences.
Thus if the order entails or provides for the forfeiture of his pay or
allowances or the loss of his seniority in his substantive rank or the stoppage
or postponement of his future chances of promotion, then that circumstance may
indicate that although in form the Government had purported to exercise its
right to terminate the employment or to reduce the servant to a lower rank under
the terms of the contract of employment or under the rules, in truth and
reality the Government has terminated the employment as and by way of penalty.
The use of the expression "terminate" or "discharge" is not
conclusive. In spite of the use of such innocuous expressions, the court has to
apply the two tests mentioned above, namely, (1) whether the servant had a
right to the post or the rank or (2) whether he has been visited with evil
consequences of the kind hereinbefore referred to. If the case satisfies either
of the two tests then it must be held that the servant has been punished and
the termination of his service must be taken as a dismissal or removal from
service or the reversion to his substantive rank must be regarded as a
reduction in rank and if the requirements of the rules and Art. 311, which give
protection to Government servant have not been complied with, the termination
of the service or the reduction in rank must be held to be wrongful and in
violation of the constitutional right of the servant." (emphasis supplied)
$ *
Thus, the order of discharge simplicitor, prima facie, is not punitive, it
being in terms of Punjab Police Rule12.21 # 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.
The test to determine whether the misconduct is 'motive' or the 'foundation' of
an order of discharge was laid down after exhaustively dealing with the case
law on the topic in the case of Radhey shyam Gupta v. U.P. State Agro
Industries Corporation Ltd. & Anr. [ ] as follows :
"It will be noticed from the above decisions that the termination of the
services of a temporary servant or one on probation, on the basis of adverse
entries or on the basis of an assessment that his work is not satisfactory will
not be punitive inasmuch as the above facts are merely the motive and not the
foundation.
The reason why they are the motive is that the assessment is not done with the
object of finding out any misconduct on the part of the officer, as stated by
Shah, J. (as he then was) in Ram Narayan Das case (AIR 1961 SC 177 : (1961) 1
SCR 606 : (1961) 1 LLJ 552). It is done only with a view to decide whether he
is to be retained or continued in service. The position is not different even
if a preliminary enquiry is held because the purpose of a preliminary enquiry
is to find out if there is prima facie evidence or material to initiate a
regular departmental enquiry. It has been so decided in Champaklal case (AIR
1964 SC 1854 : (1964) 1 LLJ 752). The purpose of the preliminary enquiry is not
to find out misconduct on the part of the officer and if a termination follows
without giving an opportunity, it will not be bad. Even in a case where a
regular departmental enquiry is started, a charge-memo issued, reply obtained,
and an enquiry officer is appointed - if at that point of time, the enquiry is
dropped and a simple notice of termination is passed, the same will not be
punitive because the enquiry officer has not recorded evidence nor given any
findings on the charges. That is what is held in Sukh Raj Bahadur case [AIR
1968 SC 1089 : (1968) 3 SCR 234 : (1970) 1 LLJ 373) and in Benjamin case (1967)
1 LLJ 718 (SC)]. In the latter case, the departmental enquiry was stopped
because the employer was not sure of establishing the guilt of the employee. In
all these cases, the allegations against the employee merely raised a cloud on
his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case
[(1980) 2 SCC 593 : 1980 SCC (L&S) 197] the employer was entitled to say
that he would not continue an employee against whom allegations were made the
truth of which the employer was not interested to ascertain. In fact, the
employer by opting to pass a simple order of termination as permitted by the
terms of appointment or as permitted by the rules was conferring a benefit on
the employee by passing a simple order of termination so that the employee
would not suffer from any stigma which would attach to the rest of his career
if a dismissal or other punitive order was passed. The above are all examples
where the allegations whose truth has not been found, and were merely the
motive.
But in cases where the termination is preceded by an enquiry and evidence is
received and findings as to misconduct of a definitive nature are arrived at
behind the back of the officer and where on the basis of such a report, the
termination order is issued, such an order will be violative of the principles
of natural justice inasmuch as the purpose of the enquiry is to find out the
truth of the allegations with a view to punish him and not merely to gather
evidence for a future regular departmental enquiry. $ In such cases, the
termination is to be treated as based or founded upon misconduct and will be
punitive. These are obviously not cases where the employer feels that there is
a mere cloud against the employee's conduct but are cases where the employer
has virtually accepted the definitive and clear findings of the enquiry
officer, which are all arrived at behind the back of the employee - even though
such acceptance of findings is not recorded in the order of termination. That
is why the misconduct is the foundation and not merely the motive in such
cases." (Emphasis supplied by the Court) $ *
Thus the principle that in order to determine whether the misconduct is motive
or foundation of order of termination, the test to be applied is 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 simplicitor and not punitive in nature. This
principle was laid down by Shah, J (as he then was) as early as 1961 in the
case of State of Orissa v. Ram Narayan Das [ ]. It was held that one
should look into 'object or purpose of the enquiry' and not merely hold the
termination to be punitive merely because of an antecedent enquiry. Whether it
(order of termination) amounts to an order of dismissal depends upon the nature
of the enquiry, if any, the proceedings taken therein and the substance of the
final order passed on such enquiry. On the facts of that case, the termination
of a probationer was upheld inasmuch as the purpose of the enquiry was held to
be to find out if the employee could be confirmed. The purpose of the enquiry
was not to find out if he was guilty of any misconduct, negligence,
inefficiency or other disqualification.
In the case of Mathew B. Thomas v. Kerala State Civil Supply Corporation Ltd.
& Ors. [ ], it was observed that the fagade of the termination order
may be simplicitor, but the real face behind it is to get rid of the services
of a probationer on the basis of misconduct. In such cases it becomes necessary
to travel beyond the order of termination simplicitor to find out what in
reality is the background and what weighed with the employer to terminate the
services of a probationer. In that process, it also becomes necessary to find
out whether efforts were made to find out the suitability of the person to continue
in service or he is in reality removed from the service on the foundation of
his misconduct. In this case the respondent Corporation, in terms of clause 2
of the appointment order terminated the services of the appellant, who was a
probationer, on charges of grave misconduct and repeated dereliction of duty
tantamounting to unsatisfactory performance. It was his duty to inspect all the
commodities received by the Corporation at the depots and to verify the quality
of goods in conformity with the specifications given by the Head Office. It was
alleged that he had betrayed the confidence reposed in him as a responsible
officer of the Corporation by accepting sub-standard quality goods in collusion
with suppliers for undue pecuniary benefits. The termination Orders were upheld
by this court.
In the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical
Sciences & Anr. 44], this Court laid down
the test to determine the nature of the termination order, i.e. whether the
termination is punitive or simplicitor. The court observed that One of the
judicially involved 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. 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 to be upheld.
Krishna Iyer, J in the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes
Mazdoor Sabha [ observed that a termination effected because the master
is satisfied of the misconduct and of the consequent desirability of
terminating the service of the delinquent servant, is a dismissal. If there is
suspicion of misconduct the master may say that he does not wish to bother
about it and may not go into his guilt but may feel like not keeping a man he is
not happy with. He may not like to investigate nor take the risk of continuing
a dubious servant. Then it is not dismissal but termination simplicitor, if no
injurious record of reasons or punitive pecuniary cut-back on his full terminal
benefits is found. For, in fact, misconduct is not then the moving factor in
the discharge. In other words, it will be a case of motive if the master, after
gathering some prima facie facts, does not really wish to go into their truth
but decides merely not to continue a dubious employee. The master does not want
to decide or direct a decision about the truth of the allegations. But if he
conducts an enquiry only for the purpose of proving the misconduct and the
employee is not heard, it is a case where the enquiry is the foundation and the
termination will be bad.
In the light of the above legal position, we will now determine whether, in
substance, the order of discharge in the present case is punitive in nature.
For this purpose it would be necessary to ascertain, firstly, the 'nature of
enquiry' i.e. whether the termination is preceded by full scale formal enquiry
into allegations involving misconduct on the part of the respondent, which
culminated in the finding of guilt, and secondly the 'purpose of the enquiry',
i.e. whether the purpose of the enquiry is to find out any misconduct on part
of the employee or it is aimed at finding out as to the respondent being
unlikely to prove as an efficient police officer.
According to the facts on record, no enquiry of the nature specified above,
was held in the present case. It is a case of discharge simplicitor. Nothing
much turns upon the observations made by the Deputy Inspector General of Police
in his order dated October 8, 1993 while deciding the appeal of the respondent.
# Respondent consumed liquor and misbehaved with a lady constable. He was
medically examined. On this basis, coming to the conclusion that he was
unlikely to prove himself an efficient Police Officer, an order of discharge
under Punjab Police Rule, 12.21 was passed. There was no enquiry. There was no
stigma of punishment. It seems that while deciding the appeal of the
respondent, the Deputy Inspector General of Police has referred to prima facie
finding out of approved facts as a departmental enquiry and the observations of
Deputy Inspector General of Police have been misconstrued by courts below.
The nature of enquiry was preliminary and not a full scale formal enquiry so
as to lead to the inference that the object of the enquiry is to determine the
guilt of the respondent. The basis of the discharge in the present case was not
the misconduct on the part of the respondent, his services were terminated
under Rule 12.21 of the Punjab Police Rules, 1934 considering the standards of
discipline expected from police personnel. #
In State of Punjab & Ors. v. Bhagwan Singh [ 9],
an order of discharge passed under the Punjab Police Rule 12.21 read as under :
"It has been reported to me by In-charge of PTC, Ladha Kofthi, Sangrur,
Inspector Joginder Singh, RI Police Lines, Faridkot and Inspector Sadhu Ram, PS
City Kot Kapura that the act and conduct of Const. Bhagwan Singh, No.
1819/Fdkt. on the whole is not satisfactory and he is unlikely to become a good
police officer. I am also satisfied with their reports. I, Jasminder Singh,
IPS, SSP/Faridkot being competent authority do hereby discharge Const. Bhagwan
Singh, No. 1819/Fdk. from service w.e.f. today i.e. 4-9-1992 A.N. under PPR
12.21 as he is found to be unlikely to prove a good police officer." *
The aforesaid order of discharge had been held to be illegal by the District
Judge and the judgment of the District Judge was affirmed by the High Court.
Allowing the appeal of the State, this Court held that the order of discharge
to the extent it stated that the officer was unlikely to prove a good police
officer, was in terms of the relevant Rule 12.21. Even in respect of the
sentence in the impugned order that the performance of the officer on the whole
was 'not satisfactory', this Court held that that also does not amount to any
stigma. The contention urged on behalf of the employee that the reference in
the impugned order to the reports of the Inspectors on the basis of which the
assessment was made would itself amount to stigma was rejected.
The lower court and the High Court, placing reliance on the case of Rajinder
Kaur (supra) held the termination invalid. The reliance on the said decision is
totally misplaced. In that case, on an allegation made by the department
against the appellant that she spent two nights with a constable, an
investigation was caused to be made into the said allegation against her
conduct and on the basis of that investigation the impugned order of discharge
was made by the Superintendent of Police after an enquiry through a Deputy
Superintendent of Police regarding the conduct of the appellant. On the facts
of the case, order of discharge, though in accordance with the provisions of
Rule 12.21 of the Punjab Police Rules, 1934 was really founded on the
misconduct as revealed in enquiry into the allegation behind her back by the
Deputy Superintendent of Police. The misconduct was the foundation of that
order of discharge and, therefore, it was quashed.
In the present case, order of termination cannot be held to be punitive in
nature. The misconduct on behalf of the respondent was not the inducing factor
for the termination of the respondent. The preliminary enquiry was not done
with the object of finding out any misconduct on the part of the respondent, it
was done only with a view to determine the suitability of the respondent within
the meaning of Punjab Police Rule 12.21. The termination was not founded on the
misconduct but the misbehaviour with a lady Constable and consumption of liquor
in office were considered to determine the suitability of the respondent for
the job, in the light of the standards of discipline expected from police
personnel. #
For the reasons aforesaid, we are unable to sustain the impugned judgment.
In this view, the appeal is allowed and the judgment and order of the High
Court is set aside. The parties shall bear their own costs.