Vimal Malawat vs State of Rajasthan and Another

Milap Chandra, J.—This writ petition has been filed for quashing the order (Anx. 3) of the respondent No. 2 (Superintendent of Police, Bhilwara) dated March 2, 1988 by which the petitioner has been discharged from her service with immediate effect.

The case of the petitioner is that she was appointed as a lady constable on probation for two years by order dated December 19, 1985 (Anx. 1). It was extended by six months by order dated 24-11-1987 (Anx. 2). Subsequently, she was discharged from the service by order dated March 2, 1988 (Anx. 3). She filed representation (Anx. 4) before the Deputy Inspector General of Police, Ajmer and it was rejected by his order dated April 8, 1988 (Anx. 5.). Certificates of appreciation (Anxs. 6 to 16) were issued to her. Neither any adverse entry was communicated, nor she was punished in any manner while she was in service. Her services have been terminated because a trainee IPS Officer suspected that letters addressed by him to another lady constable were intercepted by the petitioner and he poisoned the ears of her high-ups.

It is admitted by the respondents in their reply that the petitioner was appointed as a lady constable on probation for two years, it was extended by six months, order (Anx. 8) was passed discharging her from the services and appreciation certificates Annexures 6 to 16 were issued to her. The remaining allegations of the petition have been denied. It has also been stated in the reply as follows. The discharge order was passed on the ground that the petitioner failed to perform the duty satisfactorily There are certain other reasons like indiscipline, not reliable, association with criminals, anti-social activities etc. Despite extention of her probation period, she did not improve her work and conduct. Hence action was taken under Rule 36 (1) of the Rajasthan Police (Subordinate Service) Rules, 1974 (here in after to be called'' the Rules''). Letters of appreciation were issued in a very routine and general way. They have no value in the eye of law and facts. Not a single letter of appreciation or reward was issued or given during initial probation period or extended probation period. She has polluted the whole atmosphere of the department by her anti-social activities. She was discharged from the service after the subjective satisfaction of the competent authorities. In fact, the petitioner was discharged from the service due to her immoral attitude, indisciplined behaviour and her association with criminals and they are well founded.

In her rejoinder, the petitioner has stated that she has been removed from the service on the ground of her alleged misconduct, appreciation certificate (Anx. 10) was issued to her for getting certain criminals of her own community of Sansi arrested, certificates (Anxs. 12 & 15) were issued for maintaining peace and tranquillity on sensitive occasions and a photostat copy of the letter written by the trainee IPS Officer to another lady constable is enclosed as Annexure 17.

It has been contended by the learned Counsel for the petitioner that the order (Anx. 3) is arbitrary, discriminatory and violative of the provisions of Articles 14, 16, 21 and 311 of the Constitution of India, it is not a termination order simpliciter, it is in fact a dismissal order based on the alleged misconduct of the petitioner, it could not be passed without complying with the provisions of Article 311 of the Constitution and this is crystal clear from the reply of the respondents itself. He relied upon Hardeep Singh v. State of Haryana (1988) 19 IJR 20; Shesh Narain Avasthi v. State of U.P. 1988 (3) SLR 4 (SC); Harjeet Singh v. State of Haryana 1984 Suppl SCC 708 and Anoop Jaiswal Vs. Government of India and Another,

In reply, it has been contended by the learned Deputy Government Advocate that the order (Anx. 3) is a discharge order simpliciter, it does not cast any stigma either on her work or on her conduct and it cannot, therefore, be said that it violates Article 311 of the Constitution. He further contended that Articles 14, 16 and 21 are not applicable in this case. He relied upon Dhanabal v. State of Tamil Nadu AIR 1980 SC 630.

Admittedly, the petitioner was appointed as a lady constable on probation for two years by order (Anx. 1) dated 19-12-1985, her probation period was extended by order (Anx. 2) dated 24-11-1987 and she was discharged from the service by order (Anx. 3) dated March 2, 1988. It is also not in dispute that appreciation certificates (Anxs. 6 to 16) were issued to her. Her probation period of two years expired in December, 1987. It is clear from these appreciation certificates that they were issued in between April, 1986 to November, 1987. Thus the reply of the respondents (vide Para 6) that they were not issued during the probation period is not correct.

Para No. 7 of the writ petition tubs as under:

That all that the petitioner knows is that the services of the petitioner have been terminated because a trainee IPS Officer suspected that some letters addressed by the trainee IPS to a lady constable were intercepted by the petitioner. Nothing of this sort happened. Although the petitioner was shown these letters by the said woman constable and they were in the knowledge of the petitioner, it appears that on this the trainee IPS has poisoned the years of the high-ups against the petitioner. The petitioner says that she has nothing to do in the matter.

These averments have been denied in the reply. In the end of Para No. 7 of the reply, it has been stated as under:

The petitioner has failed to mention any specific name of the Officer with regard to the discharge of service. The allegations levelled against the trainee IPS Officer is fully false, fabricated and after-thought story of the petitioner in order to establish her case and to get relief from this Hon''ble Court. Hence the allegations made by the petitioner are not based on sound footings and as such not sustainable in the eye of law and facts.

During the arguments, the service record of the petitioner was placed before us. At page 25 of her service book, the following entry made by the Superintendent of Police, Bhilwara on 24-3-1988 (after the termination of her service) appears:

She has stolen number of letters from the S.P. Office of various staff members and black mailed some of the members. She has prepared photostat copies and shown to press, people, lawyers, politicians for the reasons best known to her. These letters include two letters written by Shri T.L. Meena I.P.S. Probationer.

A photostat copy of this page has been kept on the file of the case. Thus the above quoted averments of Para No. 7 of the writ petition find support from this entry of the service book and the aforesaid reply is not correct. It may also be mentioned here that no reply to the rejoinder affidavit has been filed by the respondents contradicting that the letter dated June, 22, 1987 (Anx. 17) was written by the trainee IPS Officer to a lady constable. The knowledge of such a letter written to another lady constable to the petitioner would have naturally offended its author.

The appreciation certificates (Anxs. 9 to 15) were issued during the period from July to November, 1987. The last appreciation certificate (Anx.16) was issued on November 28, 1987. The initial period of probation of two years expired in December, 1987. It was extended by six months by Anx. 2 dated November 24, 1987. Two adverse entries relating to the year 1986-87 appear at page 25 of the service-book. They do not bear their dates. Admittedly, they were not communicated to the petitioner. It is clear from their perusal that they are quite vague. It is stated in para No. 7 of the reply that the petitioner was discharged from the duty on the basis of certain reasons and grounds as much as looking to her immoral attitude and association with criminals. This has also been repeated in Para 8. The relevant portion of Pa a 8(iii) of the reply runs as under:

The anti-social activities of the petitiones, her association with criminals and immoral attitude resulted in her discharge from the service of the respondent-Department and not on the basis of the allegations alleged by the petitioner in the said para.

This leaves no doubt that the foundation of the termination order (Anx 3) was the anti-social activities of the petitioner, her association with criminals and her immoral attitude and not her unsatisfactory work only as stated in the discharge order (Anx. 3). It may also be mentioned here that the necessary particulars of the anti-social activities and immoral attitude have not been mentioned The names of the criminals with whom she associated have also

It has been observed in Samsher Singh v. State of Punjab and Anr. AIR 1974 SC 2192 as under:

No abstract proposition can be laid down that where the services of a probationer are terminated without saying any thing more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case If a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cases against his discharge it may in a given case amount to removal from service within the meaning of Article 311 of the Constitution.

In Anoop Jaiswal v. Government of India and Anr. AIR 1984 SC 65, it has been held as follows:

The form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order in giving effect to the rights conferred by law upon the employee.

It has been observed in Hardeep Singh v. State of Haryana (1988) 19 SCR 20 Para 5, as under:

There is no dispute that the petitioner was enrolled as a constable with effect from 7th November, 1979 and he was on probation which is for a period of three years. It is also well settled that a probationer has no right to the post and if he is found by the concerned authorities to be unsuitable for the post during the probation period his service may be done away with. But none-the-less such a probationer has a right to have an opportunity of hearing against the order of dismissal/removal from service if the same is made in effect by way of punishment or the same casts a stigma on the service career of the petitioner. In other words if the order of dismissal/removal from the service is not one simpliciter on the ground that his service is no longer required but the substance and in effect the same is made by way of punishment, the probationer like the petitioner who has no right to the post is to be given an opportunity of hearing. If such an order of dismissal/removal from service is made without following the procedure envisaged in Article 311 of the Constitution of India as well as Rule 16 24 (ix) (b) of the Punjab Police Rules. 1934 the same will be illegal and bad and liable to be quashed. This position has been well settled by this Court in the case of PL. Dhingra v. Union of India AIR 1985 SC 36.

It is, therefore, very difficult to sustain the order of termination (Anx. 3).

In the result, the writ petition is allowed with costs. The order (Anx.3) dated March 2, 1988 discharging the petitioner from the service is set aside. The petitioner is re-instated with all consequential benefits including back wages.