Vijay Kumar vs State of U.P. and Others

Sudhanshu Dhulia, J.—Heard learned Counsel for the petitioner as well as learned Counsels for the respondents at length.

The petitioner was a constable in the erstwhile State of Uttar Pradesh. He was appointed in the year 1997 and admittedly the period of probation was for two years. It is an admitted fact that before the period of probation had come to an end, the petitioner was discharged from service vide order dated 22.3.1999 by his appointing authority under the provisions of U.P. Temporary Government Servant (Termination of Service) Rules 1975 by giving him one month''s notice. The case of the petitioner is that although he was under probation, under the present facts of the case, he was liable to be heard but since no opportunity of hearing has been given to him prior to terminating his services, the impugned order is illegal. The motive for terminating the services of the petitioner was an alleged "misconduct" on part of the petitioner, where it was alleged that he committed a theft of an amplifier from a police vehicle. The petitioner in any case has been discharged from the criminal proceedings, which were filed against him consequent to the alleged misconduct. The respondents'' case is that there was no occasion of initiating disciplinary proceedings, as he was under a period of probation at the relevant time. However, on the set of facts presented before this Court in the writ petition and the counter affidavit, this Court is of the considered view that in this case real motive for terminating the services of the petitioner was not unsatisfactory services of the petitioner as alleged but the real motive was an alleged act of theft.

Admittedly, no opportunity of hearing or show-cause was given to the petitioner in the present case. Apart from this, under the U.P. Police Regulation No. 541(2), even a probationer is liable to be given a show cause notice so as to apprise him as to what is the nature of complaint made against him. Regulation No. 541(2) of the U.P. Police Regulation is quoted as under:

(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.

This clearly has not been done. This Court is, therefore, of the considered opinion that there is not only a violation of natural justice but a violation of U.P. Police Regulation as well, which is applicable in this case. The clear averment in the writ petition wherein it has been stated that the petitioner was selected and consequently appointed and was on a period of probation have been admitted in the counter affidavit. Therefore, it is not the case of the respondents that the petitioner was appointed in a temporary capacity. As such para 541 of Police Regulations are applicable in case of the petitioner which have clearly not been followed.

In view of the aforesaid, writ petition is liable to be allowed and is hereby allowed. Order dated 22.3.1999 passed by the Senior Superintendent of Police, Nainital (Annexure 5 to the writ petition) is hereby quashed.

No order as to costs.