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Judgment
S. Murtaza Fazl Ali, J.—The petitioner was an Assistant Sub Inspector of Police, on probation appointed on a temporary post for a period
of three years. A complaint was made by Sir Dattar Singh to the Respondent against the petitioner, as a result of which a departmental enquiry was
held against him and ultimately the petitioner was discharged from service.
The short point taken by Mr. Tiku is that the order of discharge in this particular case amounts to an order of removal from service and comes
within the purview of Section 126 of the State Constitution. Mr. Tiku further submitted that as no notice of the proposed punishment was at all
served on the petitioner before passing the order of discharge, the guarantee afforded by Section 126 has been disregarded and the order of
discharge is, therefore, without jurisdiction. Mr. Tiku has relied upon the decision of the Supreme Court.
The Advocate General opposing the petition has submitted in the first instance that Section 126 can only apply to such servants who have a right
to the post and as a probationer can have no right to the post, the provisions of Section 126 are not attracted in this case. In my opinion, the
argument does not seem to be well founded. The decision of the Supreme Court indicated above is a complete answer to the argument of the
Advocate General. In Para No. 12 of the judgment their Lordships have clearly indicated that Article (sic) which corresponds to Section 126 of
the State Constitution, is applicable to a servant who is appointed to a temporary post on probation, provided that the appointing authority
chooses to proceed against him by way of punishment. The Advocate General, however, relied on para No. 12 of the judgment of the Supreme
Court and particularly on the observations quoted thus:
An appointment to a temporary post for a. certain specified period also gives the servant so appointed a right to hold the post for the entire period
of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from service.
These observations were made by their Lordships before deciding the main question which was in issue before them. The final conclusion
arrived at by their Lordships of the Supreme Court is summarised in Para No. 27 of the judgment which runs as follows:â€
It does not however follow that except in the three cases mentioned above, in all other cases termination of service of a Government servant who
has no right to his post e.g. where he was appointed to a post temporary or permanent, either on probation or on an officiating basis and had not
acquired a quasi-permanent status the termination cannot in any circumstance, be a dismissal or removal from service by way of punishment. Cases
may arise where the government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other
disqualification. If such a servant was appointed to a post permanent or temporary either on probation or on an officiating basis, then the very
transitory character of the employment was terminable at any time on reasonable notice given by the government. Again, if the servant was
appointed to a post permanent or temporary on the express condition or term that the employment would be terminable on say a month's notice as
in the case of then the government might at any time, serve the requisite notice. In both cases the government may proceed to take action against
the servant in exercise of its powers under the terms of the contract of employment, express or implied or under the rules regulating the conditions
of service, if any be applicable, and ordinarily in such a situation the Government will take this course. But the Government may take the view that
a simple termination of service is not enough and that the conduct o£ the servant has been such that he deserves punishment entailing penal
consequences. In such a case, the Government may choose to Proceed against the servant on the basis of his misconduct, negligence, inefficiency,
or the like and inflict on him the punishment of dismissal, removal Or reduction carrying with it the penal consequences. In such a case the servant
will be entitled to the protection of Article 311(2).
In my opinion, after the decision of the Supreme Court there can be no doubt that Section 126 does not make any distinction between a temporary
servant on probation or a permanent servant. The contention of the Advocate General, on this point, is therefore, overruled.
The next contention put forward by the Advocate General was that in this particular case the order of discharge only amounted to a termination
of the service of the petitioner by the Respondent under the rules and was not sought to be inflicted by way of a punishment. In this connection the
Advocate General relied on the following observation made in AIR 1958 SC 36 at p. 49.
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 consequence and so Article 311 is not attracted.
As I read the judgment of the Supreme Court, it seems to me that the question as to whether an order of removal from service is one by way of
punishment or one under the rules flowing from the contract, is a matter to be decided in the circumstances of each case. It may be that the
appointing authority while terminating the service of its employee may be guided by a motive which may amount to punishment but the principal
factor to be seen is as to whether the appointing authority really intended to inflict a punishment on the employee.
We have therefore, to construe the order of discharge in the circumstances of the present case and to find out whether it amounts to a removal
from service by way of punishment or to termination of service of a probationer under the rules. The admitted circumstances are that a complaint
was made to the Respondent against the petitioner and on basis of this complaint, the Respondent directed Mr. Faroqi A.S.P. to hold a
departmental enquiry in the matter. Soon after receiving the report of the departmental enquiry the Respondent sent for the petitioner in order to
explain his conduct before him. The order of discharge in my opinion, speaks for itself. Paras Nos. 2 and 3 of the order read as follows:
Mr. Faroqi has given a very good summing Up of the case in his findings and has held the accused guilty of the charges. Mr. Faroqi has
recommended that the Prob. ASI should be discharged from service. Discharge being a major punishment I called the Prob. ASI to appear before
me at Srinagar on the 22nd of February 1959. He had nothing further to add to the statement already given by him and said that he was very sorry
for his mistake.... In the circumstances, I have no other alternative but to discharge him from service and I order that Prob. ASI Ghulam Mohamad
Mir should be discharged with effect from 28-2-59 afternoon.
The two paragraphs clearly show that the Respondent's intention was not to terminate the service of the petitioner under the rules because of
misconduct or negligence but to discharge the petitioner as a punishment. He has himself described discharge as a major punishment and this
clearly indicates that the intention of the Respondent was to inflict a punishment on the petitioner by way of removal from service and the order,
cannot, in my opinion be construed to be an order of termination of service of the petitioner due to his unsatisfactory conduct while he was on
probation.
The Advocate General relied upon a Single Bench decision of this Court reported as Om Prakash v. Supdt. of Post Office, Kashmir AIR 1960
J&K 97. This authority in my opinion does not support the argument of the Advocate General. In that case it appears, that there was no
departmental enquiry at all. In the present case there was charge sheet, a regular departmental proceeding, and a report which finds the petitioner
guilty of the charges framed against him. Moreover the order itself clearly shows that the Respondent intended to proceed against the petitioner not
in order to terminate his services under the rules, but by way of inflicting punishment on him. Under these circumstances, it is not possible for me to
hold that the order of the Respondent was not an order of removal from service but merely an order terminating the service of the petitioner.
It is true that the word ''discharge'"" does not appear in Section 126 of the State Constitution as also in Article 311 of the Constitution of India, but
as the Supreme Court has pointed out that the expressions like discharge, removal from service are innocuous expressions, they are not conclusive
on the point and the court has to find out the real intention of the employer. In the present case having regard to the circumstances and the nature of
the post which the petitioner held and the charges framed against him and the clear averments in the order of discharge, there can be no doubt that
an order of discharge really is an order of removal from service as contemplated by Section 126 of the State Constitution.
The next point is as to whether the petitioner was given any notice for showing cause against the proposed punishment as required by the
provisions of Section 126 of the State Constitution. On this point there is the clear assertion of the petitioner in his petition as also in the affidavit.
His assertion has not been controverted by the Respondent.
The Advocate General also conceded that if Section 126 of the State Constitution is (sic) to apply to this case, then in the present case no.
opportunity whatsoever, to show cause against his dismissal was given to the petitioner. The order of discharge dated 16-3-1959 passed by the
Respondent also shows that no opportunity as contemplated by Section 126 of the State Constitution was given to the petitioner. The order only
shows that the petitioner was sent for and questioned about the report of Mr. Faroqi submitted against him. This is not an opportunity as
contemplated by Section 126 of the State Constitution. It was incumbent upon the Respondent to have given clear notice mentioning therein the
punishment which he proposed to inflict on the petitioner and to give him reasonable time to give his explanation before the Respondent. This
obviously has not been done in this case.
For the reasons given above, I am clearly of the opinion that the provisions of Section 126 of the State Constitution have been clearly violated in
this case and a case for interference has been made out.
The application is, therefore, allowed and the order of the Respondent discharging the petitioner from service is quashed by a writ of certiorari
and the petitioner is placed on the same position as he was before the order of discharge was passed. Having regard to the circumstances of the
case there will be no order as to costs.