Arjun Kumar Singh vs The State of Bihar and others

S.B. Sinha & G.C. Bharuka, JJ.—In this application the petitioner has prayed for quashing of an order contained in Memo No. 1167 dated 30.3.1991 whereby he had been removed from service by the Commandant B.M.P. 5 (Respondent No. 3) as contained in Annexure�6 to the writ application. The fact of the matter lies in a very narrow compass.

The petitioner was appointed upon having been selected as Constable in the Bihar Military Police in terms of an offer of appointment dated 11.12.1987, as contained in Annexure-1 to the writ application.

According to the petitioner, the petitioner feeling unwell and mentally depressed left for his village home in the District of Saharsa on 13.11.90 and when the condition of the petitioner did not improve he was taken to Darbhanga for treatment of his mental ailment. The petitioner was however, placed under suspension with effect from 13.9.90.

According to the petitioner he had been under treatment of one Dr. Pramod Kumar Singh from October, 1990 to 13th January, 1991 but during the aforementioned period a charge-sheet was issued as against him on 21.11.90 asking him to submit his show cause within a period of seven days. The said charge-sheet is contained in Annexure 4 to the writ application.

The petitioner has contended that he never received charge- sheet nor any departmental proceeding was initiated as against him but despite the same he by reason of the impugned order dated 30th March, 1991 was removed from the services.

In this case a counter affidavit has been filed wherein it has been contended that the petitioner absented himself unauthorisedly and despite several communications asking him to join his duties, he did not do so. The petitioner also did not reply to the show cause within the stipulated time despite the fact that the time for extension therefor, had been granted. Thus the petitioner remained unauthorisedly absent for 124 days.

In has been denied that the petitioner was ill or was suffering from any mental disorder.

In paragraph 9 of the counter affidavit, it has been contended that as the petitioner absented himself from 12.3.1991 without any information and hence considering the serious misconduct he was removed from the service by an order dated 30.3.1991 with effect from 12.3.1991 in terms of Military Police Order No. 7/89 framed in pursuance of Rule 668 of the Bihar Police Manual.

It has further been contended that as the petitioner was appointed on probation and he had not been confirmed in services, the impugned order had been passed in terms of Rule 668 of the Bihar Police Manual.

The Learned Counsel appearing on behalf of the petitioner has raised a short question in support of this application.

The Learned Counsel submitted that Rule 668 of the Bihar Police Manual will have no application in the facts and circumstances of the case, inasmuch as admittedly the petitioner had been removed from services on account of misconduct.

The Learned Counsel submitted that in this view of the matter a regular departmental proceeding should have been initiated as against the petitioner as a stigma has been cast upon him for alleged commission of misconduct.

The learned Standing Counsel No.4, however, on the other hand, submitted that the petitioner had not completed the period of probation. It was open to the State to lake recourse to Rule 668 of the Bihar Police Manual.

Rule 668 of the Bihar Police Manual reads as follows:�

Removal or reversion of Officers appointed direct or promoted on probation.�The following rules shall govern first appointments and the promotion of police and ministerial officers as detailed in Appendix�41 : �

(a) All officers shall in the first instance be appointed or promoted on probation. Where the period of probation is not otherwise provided for in the rules it shall be for a period of two years in the case of executive officers and one year in the case of ministerial officer. The authority authorised to make such appointment or promotion, may at any time during such probationary period and without the formalities laid down in rule 828, remove an executive officer directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment or promotion. Similarly probationary period may also be extended without any show cause. No appeal shall lie in such cases.

(b) Executives Officers appointed or promoted in other than permanent vacancies are also liable to removal or reversion in the manner indicated in Clause (a) above.

From a bare perusal of the aforementioned provisions it is, therefore, clear that the same principally provides the period of probation. In terms of the aforementioned provision any executive Officers directly appointed may be removed or an officer promoted can be reverted if he has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment or promotion.

There cannot be any doubt that a person who had been appointed on a probation has no legal right to be confirmed. His services can be terminated on the expiry of the probationary period if the same is not found to be satisfactory. Similarly his probationery period can also be extended.

In this case, however, admittedly the petitioner''s order for dismissal was passed on the ground of a misconduct. This aspect of the matter has also been considered by Supreme Court in Anoop Jaiswal vs. the Government of India and others reported in 1934 S.C. 636. In the said decision, the Supreme Court came to the conclusion that if foundation for the action taken against an employee and the other instances stated in the course of the counter-affidavit are mere allegations which are put forward only for purposes of strengthening the defence which is otherwise very weak. Article 311 of the Constitution of India would be attracted although in the order of termination of services it is stated to have been passed as termination of the probationer.

In this case no disciplinary proceedings has been initiated as against the petitioner. The defence of the petitioner was that he had not been in a position to attend to his duties for reasons beyond his control.

In this situation, in our opinion, a departmental proceeding should have been initiated as against him so as to give an opportunity to the petitioner to explain his absence. In this view of the matter, the impugned order cannot be sustained.

The disciplinary authority may therefore initiate disciplinary proceeding as against the petitioner and in view of the fact that admittedly he had absented without taking any prior leave, an opportunity to explain his absence should be given to him.

The question as to whether the petitioner would be entitled to any salary for the period during which he remained suspended shall abide by the ultimate decision in the departmental proceeding. For the reasons aforementioned, this application is allowed to the extent mentioned hereinbefore and the matter is remitted for passing a fresh order after giving an opportunity of hearing to the petitioner in accordance with law. In the facts and circumstances of the case, there will be no order as to costs.