District Superintendent of Police and Another vs Ghanshyamsinh Zala

P.R. Gokulakrishnan, C.J.—This Letters Patent Appeal is againt the order passed by the learned single Judge, allowing Special Civil Application No. 5484 of 1986. Two Constables, for whom order of appointment was issued as early as 17-12-1983 were sent for training. It is alleged that, in the examination held, they indulged in copying and as such, the impugned order, discharging the respondent and another, came to be passed on 28-4-1984. Questioning the same, the respondent came forward with the Special Civil Application. The other Constable, who has also been discharged, has filed another Special Civil Application, and that Constable is not before us today. The learned single Judge, who went into the question, found that the discharge has been effected by way of punishment and the failure to follow the procedure prescribed under An. 311 (2) of the Constitution vitiates vitates such discharge. After setting aside the order of discharge, the learned Judge has also given the full backwages. It is interesting to note that, it is only in the case of the present respondent, the discharge came to be effected and as for as the other constable is concerned, before the discharge was effected, he came forward with the Special Civil Application and got stay from this Court. The learned single Judge, after appreciating that , the respondent was not gainfully employed during the period of termination, has granted full backwages. It is as against this order, the appellants have come forward with the present Letters Patent Appeal.

Miss Doshit, the learned Counsel appearing for the appellants, states that the respondent is only a recruit and there is absolutely no legal right to continue in the civil service, entitling him to agitate the question of discharge. According to the learned Counsel, a recruit does not get any right in the service, and once he has been discharged from service, he has absolutely no legs to stand and the present Special Civil Application filed by him, questioning the discharge is misconceived She also reads Rules 129, 131 and 132(2) of the Gujarat Police Manual 1975 to substantiate her case.

It is clear from Annexure ''A'' to the Special Civil Application that the respondent, who was declared medically fit, was appointed in the District Police Force, in the existing pay scale of Rs, 200/- plus allowances as Police Constable on temporary basis in unarmed branch. Buckle No. 1744 was given to the present respondent. He was sent for training. It is alleged that he indulged in copying during the examination and accordingly, as per Annexure ''B'', which is the impungned order, he was discharged from the police department from the date of the receipt of the order Annexure ''B'' to the Special Civil Application. Rule 129 deals with recruits training at the Police Training School, Baroda. Rule 129 (5) states:

An examination will be held at the end of each term Two successive failure in any of the terminal examination will result in the discharged of the recruit, At the end of 8 months training a final examination will be held. Two failures in the final examination will result in the discharge of the recruit.

It is clear from this rule that the Constable who was seat for training and to undergo examination, has two chances to appear in the examination. In the present case, it is clear from the facts of the case that the respondent came to be discharged on the allegation that he indulged in copying during, the examination. Thus, it is clear that the discharge is purely for indulging in mal-practices and the discharge was made definitely as a result of penal consequences. Rule 132(2) deals with posting of unarmed recruits on completion of training period, it clearly states that, on the expiration of the training period, unarmed recruits should be sent out to Police Stations and during and during remainder of their probationary period, they should be posted under selected Inspeotors/Sub-Inspectors, who should be required to give them careful and regular attention. Thus, a person recruited as a constable is on probation.

When the constable is being discharged as a result of penal consequences, the basic necessity is to give him notice and get his explanation before such an order is passed. Admittedly, no such argument was advanced by the appellants herein to the effect that the Constable had such an opportunity before the discharge was effected. Even before us. the learned Counsel appearing far the appellants, states that the appellant is only a recruit and it cannot be construed that he is holding any civil service on the facts of this case and as such no notice as contemplated under An. 311 (2) of the Constitution is nccessary. Considering the facts of the case and also the relevant rules, which we have stated above, we are of the view that the learned single Judge has correctly found that the order of discharge cannot be sustained. We are in complete agreement with the reasoning and finding of the learned single Judge and accordingly, this Letters Patent Appeal is dismissed.