Sunil Kumar Sharma vs State of U.P. and Others

R.H. Zaidi, J.—By means of this writ petition under Article 226 of the Constitution of India, Petitioner prays for a writ of certiorari quashing the impugned order dated 23.11.1992, passed by Respondent No. 4 whereby the services of the Petitioner as Constable in 8th Battalion, Pradeshik Armed Constable were terminated. Another prayer for a writ of mandamus commanding the Respondents not to interfere in the functioning of the Petitioner as Constable in 8th Battalion, Pradeshik Armed Constabulary, Bareilly and for payment of his regular salary month to month have also been made.

The facts of the case in brief, as set out in the writ petition, are that the Petitioner was recruited in accordance with the relevant Rules and appointed in 8th Battalion Armed Constabulary at Bareilly on 1.9.1990. He was, therefore, sent for one year''s training which he has completed successfully. The Petitioner was served with a notice dated 19.11.1992 to file his explanation with regard to the allegations of misconduct (absence from duty). The said notice was issued on the basis of the complaint made by the brother of the local M.L.A. and a First Information Report was also lodged against him. Reply of the said notice was submitted by the Petitioner but instead of proceeding further in accordance with Rules, his services were terminated by the impugned order dated 23.11.1992 by way of punishment. The Petitioner thereafter filed the present petition challenging the validity of the said order.

A counter-affidavit has been filed on behalf of the Respondents, in which the facts that the Petitioner was selected and enlisted for training as recruit on 1.9.1990 in 8th Battalion have not been disputed. It has also been admitted that the Petitioner was thereafter sent for training and that he returned to the said Battalion after completing the training. It has, however, been asserted that the Petitioner was taken as Constable w.e.f. 18.9.1991 and accordingly his pay was fixed on the said date vide Hindi Order Book No. 666, dated 8.10.1991 and that period of probation of two years was not completed at the time of termination of his services. In paragraph 8 of the counter-affidavit, it has been stated as under:

That the contents of paragraph Nos. 16 and 17 of the writ petition, not admitted. The Petitioner has himself accepted in his petition, paragraph 14, that he was given a notice, reply of which was given in notice, reply of which was given in detail on 19.11.1992. It is wrong to say that the Petitioner had completed 2 years of probation period and was confirmed in the service. The Petitioner was enlisted as Recruit Constable on 1.9.1990 and regularised as constable after successful completion of training on 18.9.1991. Petitioner''s probation period of 2 years would be completed on 18.9.1993.

I have heard the learned Counsel for the parties.

Learned Counsel for the Petitioner vehemently urged that the Petitioner was appointed on probation and after completion of probation, he shall be deemed to have been confirmed on the aforesaid post. Therefore, his services could not be terminated in exercise of powers under the U.P. Temporary Government Servant (Termination of Services) Rules, 1975 and alternatively, it has been submitted that even if the Petitioner is stated to be on probation, his services could not be terminated without following the procedure prescribed under Rule 541 of U.P. Police Regulations, which are applicable in the present case. He submits that the procedure prescribed under the said Regulation has not been followed, therefore, the order of termination in exercise of powers of Termination Rules, 1975 is illegal and invalid. In support of his contention the learned Counsel for the Petitioner places reliance upon the decision in Pramod Kumar Singh v. State of U.P. and Ors. 1991 ALR 610; Dr. Mrs. Sumati P. Shere v. Union of India 1989 SC 1431; Acharji Tiwari v. Zila Canna Adhikari and Anr. 1992 (2) UPLBEC 793 and G.B. Pant Agricultural and G.B. Pant Agricultural and Technology University Vs. Kesno Ram, .

The next submission of the learned Counsel for the Petitioner is that the impugned order of termination is nothing but an order of punishment, the same having been passed without following the procedure prescribed and in violation of provisions of Article 311 of the Constitution of India and the same is liable to be quashed. In support of his submission, the learned Counsel for the Petitioner places reliance on G. B. Pant Universities case (supra).

On the other hand, learned Standing Counsel appearing for the Respondents submitted that the Petitioner was appointed in temporary capacity and his services were rightly terminated in exercise of powers of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 (for short the Rules). The order of termination was quite legal and did not suffer from any infirmity or illegality. It has also been urged that no imputation was made in the impugned order of termination against the Petitioner, the same was innocuous. The order, therefore, cannot be said to be an order of punishment.

I have considered the rival contentions made by the learned Counsel for the parties and perused the records.

For the purposes of resolving the controversy involved in this case, it is not necessary to deal with all the submissions made by the learned Counsel for the Petitioner. I also do not think it necessary to deal with the question as to whether the Petitioner shall be deemed to have become permanent on expiry of period of probation or not, inasmuch as there is a dispute with respect to the date of his recruitment as a Constable. It is, however, not disputed that on the date the services of the Petitioner were terminated, he was working on probation, therefore, I have to see as to whether the order of termination could be passed against the Petitioner in exercise of power under the Rules while he was working on probation.

Sub-clauses (1) and (2) of Regulation 541 of U.P. Police Regulations, which are admittedly applicable in the present case, provide as under:

541 (1) A recruit will be on probation from the date he begins to officiate in a clear vacancy. The period of probation will be two years except in the following cases:

(a) those recruited directly in the Criminal Investigation Department or District Intelligence Staff will be on probation for three years, and

(b) those transferred to the Mounted Police will be governed by the directions in paragraph 84 of the Police Regulations.

If at the end of the period of probation, conduct and work have been satisfactory and the recruit has been approved by the Deputy Inspector General of Police for service in the force, the Superintendent of Police will confirm him in his appointment.

(2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer, he may dispense with his service. Before, however, this is done, the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge.

(emphasis supplied)

A reading of the aforesaid Regulation clearly reveals that period of probation of a recruit is two years and that the services of the probationer could be terminated after following the procedure prescribed under Sub-clause (2) of Regulation 541, which provides that either during or at the end of the period of probation, the Superintendent of Police is of the opinion that a recruit is unlikely to make a good police officer, he may dispense with his service but before his services could be terminated, the recruit is required to be supplied with specific complaints and grounds on which he is proposed to be discharged. It further provides that the recruit shall be called upon to show as to why he should not be discharged. In case the explanation is submitted by the recruit, the same is liable to be considered by the Superintendent of Police before passing the order of discharge.

In the present case, admittedly the procedure prescribed under Sub-clause (2) of Regulation 541 has not been followed. Admittedly neither any complaint was supplied to the Petitioner nor show cause notice was issued, therefore, there arose no occasion for consideration of the fitness of the Petitioner as a Police Officer. The notice which was served upon the Petitioner was not in exercise of powers under Regulation 541. From a reading of the said notice, it is apparent that it was with respect to the absence of the Petitioner from duty with arms and ammunition. The same, therefore, cannot be utilised for the purposes of justifying the impugned order, particularly when in the impugned order itself it is noted that the said order is being passed in exercise of powers under the U.P. Temporary Government Servant (Termination of Services) Rules, 1975, which does not provide for any prior notice. Further, it has not been found that Petitioner was not likely to make a good officer, therefore, his services were terminated. In brief, the order cannot be Justified under Regulation 541 of U.P. Police Regulations. It has not been disputed for the Respondent that the U.P. Temporary Government Servant (Termination of Services) Rules, 1975 have got no application in the present case as the Petitioner was appointed on probation and such rules have got no application to the probationers, particularly in view of specific provisions contained in Regulation 541 of U.P. Police Regulations, referred above. In paragraph No. 5 of the decision in Dr. Mrs. Sumati P. Shere Vs. Union of India (UOI) and Others, , it has been ruled by the Apex Court of the country as under:

We must emphasize that in the relationship of master and servant, there is a moral obligation to act fairly. An informal, if not formal, give-and-take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies; indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.

The aforesaid decision was referred to and relied upon by this Court in Acharji Tiwari v. Zila Ganna Adhikari and Anr. (1992) UPLBEC 793, wherein it was held as under:

In the case of Dr. Mrs. Sumati P. Shere Vs. Union of India (UOI) and Others, , the Supreme Court has held that the services of even temporary or ad hoc employees cannot be terminated arbitrarily. The aforesaid decision of the Supreme Court squarely applies to the facts of the present case. The learned Counsel for the Respondents has placed reliance upon a decision State of U.P. v. Kaushal Kishore Shukla 1991 (1) UPLBEC 152 wherein it has been laid down that the services of a temporary employee may be terminated in accordance with the relevant service rules and no opportunity is required to be given in such matters. In paragraph 9 of the aforesaid decision, the Supreme Court has, however, observed that before passing an order of termination, the Competent Authority may hold enquiry in fairness to ascertain whether the temporary servant should be contained in service or not. No such enquiry having been held by the Respondents before terminating the Petitioner''s services, I am of the opinion that the law laid down by the Supreme Court in Sumati P. Shere (supra), still holds good and the impugned order of termination is not sustainable in law.

Similar view has been taken by this Court in Pramod Kumar Singh v. State of U.P. and Anr. 1991 (18) ALR 610.

It has further been held that after completion of two years period of probation that no confirmation order is passed, the probationer shall be deemed to have been confirmed by implication of expiry of fixed probationary period. His termination simpliciter after such probationary period without holding enquiry is invalid.

The aforesaid view has been taken on the basis of the decisions of Supreme Court in State of Punjab Vs. Dharam Singh, and Om Prakash Maurya v. U.P. Co-operative Sugar Factories Federation and Ors. 1987 UPLBEC 50.

In view of the law laid down by the Hon''ble Supreme Court and this Court in the above noted decisions, this petition is liable to be allowed.

The writ petition succeeds and is allowed. The order dated 23.11.1992 is quashed. Respondents are directed to reinstate the Petitioner on the post of Constable with all consequential benefits. The arrears of salary of the Petitioner shall be paid to him within a period of three months from the date a certified copy of this order is communicated to Respondent No. 3.