Rakesh Kumar vs State of Punjab and Others

G.S. Singhvi, J.—The only issue which arises for adjudication in this petition is whether termination of petitioner''s services by way of discharge can be treated as punitive and invalidated on the ground of violation of the principles of natural justice and Article 311 of the Constitution of India.

The petitioner says that he joined service as a Special Police Officer (for Short described as ''SPO'') on 3.8.1991 in pursuance of the appointment given by the Senior Superintendent of Police, Amritsar (respondent No. 3). He further says that due to illness he could not attend his duty from 3.5.1996 to 15.5.1996. When he presented himself before the Superintendent of Police (Operation), Amritsar on 16.5.1996 for being assigned duty, the latter directed him to go to the Police Lines, Amritsar to get further orders and instructions from the Line Officer, Police Lines, Amritsar. He further says that the Line Officer did not take him on duty and when contacted for this purpose, respondent No. 3 refused to allow him to take on duty. He then filed C.W.P. No. 19269 of 1996 which was disposed of by a Division Bench with the direction to the respondents to take decision on the legal notice served by the petitioner. In compliance with that direction, respondent No. 3 passed the Order Annexure P. 2 dated 15.4.1997 rejecting his plea for reinstatement on the ground that he was discharged from service on 16.5.1996 on the basis of the report of the Sub Inspector Gurdip Singh and the Deputy Superintendent of Police (Detective) in which it was recorded that he i.e. the petitioner had remained absent from 3.5.1996 to 15.5.1996 and he did not do duty in connection with Lok Sabha elections.

The petitioner has challenged his discharge from service on the ground that before taking the impugned action, respondent No. 3 did not make any enquiry into the allegations of misconduct i.e. the absence without permission and refusal to perform duty during elections. His contention is that the order of discharge passed by respondent No. 3 is punitive in nature and, therefore, it was the bounden duty of respondent No. 3 to act in accordance with the principles of natural justice before terminating his service.

In their written statement, the respondents have averred that the petitioner was taken as SPO on 1.11.1991 and not on 3.8.1991 as mentioned in the writ petition. They have further averred that he was discharged from service due to wilful absence from duty from 3.5.1996 to 15.5.1996 and also because he avoided to report for duty in connection with the Lok Sabha elections for which he was detailed by the Reserve Deputy Superintendent of Police (Detective), Amritsar. In paragraphs 4 and 5 of the written statement, the respondents have admitted that the petitioner appeared before the Superintendent of Police, Amritsar who directed him to join duty on 16.5.1996. They have also admitted that the petitioner reported for duty at Police Lines but in view of the order of discharge passed by the competent authority he was not taken on duty.

During the pendency of this petition, the learned Deputy Advocate General had sought adjournments on more than one occasion to produce the service record of the petitioner and the order by which he was discharged from service. Today, he placed before us a photostat copy (vernacular) of the document which contains the report of the Sub Inspector-Gurdip Singh about the petitioner''s alleged absence from duty and his failure to do work during Lok Sabha elections, the comments of the Deputy Superintendent of Police (Detective), their recommendations for the petitioner''s dismissal from service and the one word order ''Discharge'' recorded by respondent No. 3 on 16.5.1996. The translation of this document has been prepared and compared by the Translation Branch of the High Court.

After hearing learned Counsel for the parties and perusing the record, we are convinced that the termination of the petitioner''s service deserves to be nullified on the ground of violation of the principles of natural justice. There is some dispute between the parties about the date of the petitioner''s joining the service, in as much as, while the petitioner says that the had joined on 3.8.1991 the respondents have asserted that he did soon 1.11.1991. However, this insignificant controversy has no bearing on the adjudication of the substantive issue i.e. whether the termination of the petitioner''s service by way of discharge is vitiated due to violation of the principles of natural justice. A bare perusal of the document produced by the learned Deputy Advocate General shows that on 12.5.1996 Shri Gurdip Singh, Sub Inspector (Reserve) recommended the petitioner''s dismissal from service on the ground of wilful absence from duty without any information and without any prior permission and also on the ground that the petitioner had acted in an irresponsible manner by not doing duty in connection with the Lok Sabha elections. In the note recorded by him on 13.5.1996, the Deputy Superintendent of Police (Detective), Arnritsar also recommended the petitioner''s dismissal from service. On 16.5.1996, respondent No. 3 recorded the one word order "Discharge" signifying his decision to terminate the petitioner''s service. A perusal of the notings recorded by the two officials which preceded the ultimate action taken by respondent No. 3 shows that the foundation of the action taken by respondent No. 3 to terminate the petitioner''s service lies in the specific allegations levelled against him i.e. wilful absence from duty and failure to do duty in connection with Lok Sabha elections. If the order passed by respondent No. 3 is read in conjunction with the recommendations made by the two officials working under him, there is no escape from the conclusion that the petitioner''s services have been dispensed with as a measure of punishment and as no enquiry was held into these allegations, the impugned action is liable to be declared as nullity. In our considered view, it was the bounden duty of respondent No. 3 to hold an enquiry in consonance with the basic principles of natural justice before he could terminate the petitioner''s services on the basis of allegations constituting serious misconduct. This he could do by giving notice to the petitioner requiring him to submit explanation in respect of the two allegations. In reply to such notice, the petitioner could have pleaded that he was prevented from attending duty due to sickness. He could have produced medical certificate to prove this and convince respondent No. 3 that he is not guilty of wilful absence from duty. He could also show that he never intended to avoid duty in connection with Lok Sabha elections but could not do so due to the circumstances beyond his control. However, the petitioner could not avail this opportunity because neither any notice was given to him nor any enquiry was held by respondent No. 3 into the allegations of misconduct levelled against him. It is, thus, evident That the petitioner has been condemned unheard and on this ground alone the termination of his service is liable to be nullified.

Mr. Khosla''s argument that the Court should not quash the termination of the petitioner''s service on the ground of alleged breach of principles of natural justice because the word ''discharge'' used by respondent No. 3 signifies that it was a termination simpliciter and not by way of punishment sounds appealing but it lacks substance and merit. What is implicit in this argument is that when the order passed by the employer to terminate the services of an employee does not contain express words of stigma, the Court must keep its hands off and must determine the legality or otherwise of the impugned order without adverting to the attending facts and circumstances. Unfortunately, for the respondents the law is otherwise. The scope of the power of judicial review in such matters has been clearly delineated by various judicial precedents and it must be treated as a settled proposition of law that when an employee challenges the termination of his service on the ground that innocuous order passed by the employer is really punitive in nature, the Court can lift the veil of innocuousness attached to the action taken by the employer and find out whether the basis or the real cause for terminating the services of the employee lies in the allegation of misconduct or that the same merely furnishes motive for the ultimate decision. If on an examination of the preceding and attending circumstances, the Court comes to the conclusion that the termination of the services of an employee brought about by an innocuous order is in substance based on the allegations of misconduct and the intention of the employer is to penalise the employee, then it is permissible for the Court to pierce the veil of simplicity and hold that the termination of the services of the employee is punitive. Reference in this connection may be made to the following decisions of the Supreme Court and of this Court :

(i) Parshotam Lal Dhingra Vs. Union of India (UOI), ;

(ii) Robert D souza v. The Executive Engineer, Southern Railway and another AIR 1982 S.C. 854 :

(iii) Anoop Jaiswal Vs. Government of India and Another, ;

(iv) Datar Singh v. State of Punjab and others 1998 (2) RSJ 78;

(v) Raj Kumar Ex Constable v. State of Haryana and others 1998 (2) RSJ 780;

(vi) State of Punjab and others v. Bakshish Singh 1998 (4) RSJ 343;

(vii) Ex. Constable Ram Niwas v. State of Haryana and others 1998 (4) RSJ 36; and

(viii) Ex. Constable Balwan Singh v. State of Haryana and others 1999 (1) RSJ 680.

Mr. Khosla''s argument that the rules of natural justice should not be applied in the petitioner''s case because he was not holding post in a regular cadre also merits rejection because it is a settled principle of law that every public employer is duty bound to comply with the basics of natural justice before terminating the services of an employee as a measure of punishment irrespective of the fact that the employee does not have the right to hold the post. The Courts have consistently read this obligation of the public employer as implicit in the very exercise of power in all those cases in which the services of the employees are terminated by way of punishment or by stigmatic orders. Therefore, we cannot absolve respondent No. 3 from the charge of having acted in violation of the rules of audio alteram partem simply on the ground that the petitioner did not have the right to hold the post.

On the basis of above discussion, we hold that the termination of the petitioner''s service is violative of the principles of natural justice and the order dated 16.5.1996 is liable to be quashed. Ordered accordingly.

The writ petition is allowed in the manner indicated above. The petitioner shall get all consequential benefits.

Petition allowed