Holding

The order of removal was a punitive dismissal and, under Article 311(2) and Rule 16.24(ix)(b), was illegal; it was quashed and the petitioner reinstated with back wages.

Summary

Hardeep Singh, a constable on probation in the Haryana Police, was dismissed without a charge sheet or hearing after participating in a peaceful union protest. He challenged the order, arguing it was a punitive dismissal that required compliance with Article 311(2) of the Constitution and Rule 16.24(ix)(b) of the Punjab Police Rules. The Court held that the order was indeed a punishment, invoking the protections of Article 311(2) and the Rules, and therefore was illegal. Consequently, the dismissal was quashed, and the petitioner was ordered to be reinstated with 50% back wages and full salary from the date of reinstatement, without loss of seniority or pension benefits. The petition was allowed.

Issues considered

Whether the order of removal of a probationer for union activities constitutes a punitive dismissal invoking Article 311(2).
Whether a probationer is entitled to a hearing under Article 311(2) and Rule 16.24(ix)(b) when dismissal is by way of punishment.
Whether the impugned order can be set aside and the petitioner reinstated with back wages.

Legislation cited

Constitution of Indias. Art.311(2)
Punjab Police Rules, 1934s. Rule 12.21, s. Rule 16.24(ix)(b)

Subjects

probationerpunitive dismissalArticle 311(2)Punjab Police Rulesunion protestprocedural fairnessreinstatementback wages

Judgment

HARDEEP SINGH
-'-.
A
v.
STATE OF HARYANA & ORS.

AUGUST 13, 1987

B [A.P. SEN AND B.C. RAY, JJ.] 1

Civil Services: Punjab Police Rules 1934, Rules 12. 31and16. 24 ...J..
(ix)(b)-Police Constable on probation-Order of removal from
service passed on account of union activities-No chargesheet served-
No enquiry held-Order, when can be quashed. _,,.-

c Constitution of India, 1950, Art. 311(2)-Whether a probationer
is entitled to protection, and if so, when.
r
The petitiuner, a Cunstable In the Haryana Police Service, was
removed from service during the periud of probation. However, be was
D not given any opportunity of bearing against the purported order of
dismissal from service. He challenged the impugned order of removal ~
on the ground that he was removed from service because of bl• activities
in the Haryana Police Association and It was in fact a penal order and as
such the same being made without complying with the requirements of
Article 311(2) as well as Rule 16.24(1x)(b) of the Punjab Police Rules,
E 1934, it is wholly arbitrary, illegal and unwarranted.
·~
It was contended on behalf of the respondent that the Impugned .>
order is not an order of dismissal from service and in fact this is an
order of discharge made under Rule 12.21 of the Rules since the
appointing authority was of considered opinion on the assessment of his r
conduct and performance that the petitioner was unlikely to prove an
F
efficient police officer.

Allowing the writ petition to this Court,

HELD: 1. (i) The impugned order of removal/dismissal from
service was in substance and in effect an order made by way of punish- ~·
G ment after considering the service conduct of the petiti<iner. It is there-
fore quashed and it is directed that he be reinstated in service with 50

H
per cent back wages from the date of termination of his service till the
date of his reinstatement. He would, however, be entitled to his full
salary and other allowances admissible w.e.f. the date of his reinstate-
ment. There would however be no break in continuity of service for
purposes of seniority and pension benefits. [1144D; 1145A·CI
-
1138
::;;. HARDEEP SINGH v. STATE OF HARYANA 1139

(ii) There is no doubt that the impugned order casts a stigma on
A
the service career of the petitioner and the order being made by way of
punishment, the petitioner is entitled to the protection afforded by the
provisions of Article 311(2) of the Constitution as well as by the provi-
sions of Rule 16.24(ix)(b) of the Punjab Police Rules 1934. [1144E]
r (iii) It cannot be said that the impugned order is an order simpli· B
citer of removal from service of a probationer in accordance with
~
the terms and conditions of service. The impugned order undoubtedly
tantamounts to the dismissal from the service for reasons of misconduct

- i
of the petitioner in discharge of the official duties as police cons-
table. [1144G-H]
2. A probationer has no right to the post and if he is found by the
concerned authorities to be unsuitable for the post during th_e probation
c
period his service may be done away with. But nonetheless such a
probationer has a right to have an opportunity of hearing against the
order of dismissal/removal from the 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. [1141G-H; 1142A]
D

In the instant case, the petitioner has not been served with any
charges of misconduct in discharge of his duties as a police constable
nor has he ever been asked to show cause against the said charges. The
order of removal from service was made because of his. union activities
..._ -~ ciation
namely participating in the call for expressing the protest of the Asso-
'
for improvement in service conditions by abstaining from taking
E

meals in the Mess on 15th August, 1982 although the petitioner like
other members of the association performed his duties on that day and
-1
I did not abstain from duty. [1144E·G]

P.L. Dhingra v. Union of India, AIR 1958 (SC) 36; Samsher F
Singh v. State of Punjab and Anr., AIR 1974 (SC) 2192; Anoop Jaiswal
v. Government of India & Anr., AIR 1964 (SC) 636 and Ajit Singh &
Ors. v. State of Haryana & Ors., W.P. No. 9345-94 98/1983, followed.

y ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1615 of
~~- G
(Under Article 32 of the Constitution of India).

R.P. Gupta for the Petitioner.

C.V. Subba Rao for the Responents. H
1140 SUPREME COURT REPORTS [1987] 3 S.C.R.
).

A The Order of the Court was delivered by

B.C. RAY, J. Tlie petitioner who was appointed as a constable
in the Haryana Police Force on November 7, 1979 has challenged in
this writ petition the order dated August 24, 1982 issued by the Com·
mandant, 2nd Bn. Haryana Armed Police, Madhuban on the ground 1
B that the impugned order of removal from service was in effect a penal
order and as such the same being made without complying with the )
requirements of Article 311(2) as well as the Rule 16.24(ix)(b) of the

-
Punjab Police Rules, 1934 is wholly arbitrary, illegal and unwarranted
and so the impugned order is liable to be quashed and set aside and the
petitioner to be reinstated in service. The facts of the case in a nutshell
are that the petitioner was enrolled as a constable in the Haryana
c Police Service in November, .1979 and he had been discharging his
)-
duties attached to his office duly and properly. The petitioner was a
member of an unregistered Haryana Police Association. The said
association had been convassing for improvement in the Service condi·
lions of the police personnel serving with the Haryana Police and on
D several occasions made representations for improvement of the service r
conditions of the members of the police service. As a part of its
campaign for improvement in service conditions, the association in the
month of July gave a call to all its members to participate in "a non·
taking of food campaign" which was to take place on 15th August,
1982. On that day the petitioner and other police personnel numbering
E about 16,000 consisting of constables and head-constables of Haryana '
Police Force attended to their duties but they did not take their food in ' ....
the Mess. The protest undertaken by the Haryana police constables/
head-constables was a symbolic and peaceful one and no incident
whatsoever had occurred on that day. ·The respondents, however r
issued order of dismissal/removal against 425 policemen under rule
F 12.21 of the said rules without serving on them any charge-sheet and
without giving them any opportunity of hearing against the charges,
prior to the passing of the said order of dismissal/removal from
service. About 154 of such policemen challenged the order of their
dismissal;removal from service in writ petition Nos. 9345 to 9498 of
1983 before this Court and the Constitution Bench of this Court after 'f
G hearing, set aside the said order of dismissal from service and directed
reinstatement in service without any break in their service.

The petitioner because of his activities in the Association was
served with the impugned order of removal from service without being
given any opportunity of hearing and without being asked to show
H cause against the purported order of dismissal from service. The
HARDEEP SINGH v. STATE OF HARYANA (RAY, J.( 1141

petitioner has challenged the validity of this impugned order in this A
writ petition. A return has been filed on behalf of the respondents
sworn by one Raj K. Vashishta, JPS, Commandant 2nd Bn. Haryana
Armed Police, Madhuban District, Kamai wherein in paragraph. 2 it
has been stated that the impugned order is not an order of dismissal
r from service and in fact this is an order of discharge made under rule
12.21 of the Punjab Police Rules, 1934 as applicable in Haryana. It has B
been further stated in paragraph 3 of the said affidavit that the
• petitioner deliberately suppressed the facts that:

(i) That for his absence from duty, without leave for more than
24 hours with effect from 25. 10.80 he had been awarded 5
days P.D. c
(ii) Again he had been warned for absence without leave for
five huurs on 21.4.81.

(iii) Notwithstanding the warnings and punishments awarded for
absence from duty in 1980, and again in 1981, the petitioner D
did not show any improvements in his performance and con-
duct and again absented from duty on 15th August, 1982.

It has also been stated that a recruit constable who within a span
of three years of his enrolment repeatedly absents from duty and does
" not improve himself in spite of warnings, is not likely to prove an E
efficient police officer.

It has further been averred in the said affidavit that the petitioner
was discharged because the appointing authority (Superintendent of
Police) was of considered opinion on due assessment of his conduct
and performance that he was unlikely to prove an efficient police F
officer. These averrnents have been verified as correct according to the
information derived from the official records and believed by the
deponent to be true.

There is no dispute that the petitioner was enrolled as a cons-
\¥ table with effect from November 7, 1979 and he was on probation G
which is for a period of three years. It is also well settled that a pro-
bationer 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 nonetheless such a probationer
has a right to have an opportunity of hearing against the order of
dismissaltremoval from service if the same is made in effect by way of H
1142 SUPREME COURT REPORTS [1987) 3 S.C.R.

A 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 in 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 "i
B dismissal /removal from service is made without following the proce-
dure envisaged in Article 311(2) 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 P.L. Dhingra v. Union of India,
AIR 1958 (SC) 36 wherein it has been observed as under:- ..,.
c
" ....... Passing on to Article 311 we find that it gives a
two-fold protection to persons who come within the article,
namely, (I) against dismissal or removal by an authority
subordinate to that by which they were appointed and (2)
against dismissal or removal or reduction in rank without
D giving them a reasonable opportunity of showing cause
against the action proposed to be taken in regard to them.
Incidentally it will be noted that the word "removed" has
been added after the word "dismissed" in both Clauses (1)
and (2) of Art. 311. Upon Art. 311 two questions arise,
namely, (a) who are entitled to the protection and (b) what
E are the ambit and scope of the protection?" '
" ........ Shortly put, the principle is that when a servant
""
has right to a post or to a rank either under the terms of the
contract of employment, express or implied, or under the r
rules governing the conditions of his service, the termina-
F tion of the service of such a servant or his reduction to a
lower post is by itself and prima facie a punishment, for it
operates as a forfeiture of his right to hold that post or that
rank and to get the emoluments and other benefits attached
thereto. But if the servant has no right to the post, as where
he is appointed to a post, permanent or temporary either
G on probation or on an officiating basis and whose tempo- ~
rary service has not ripened into a quasi-permanent service as
defined in the Temporary Service Rules, the termination of
his employment does not deprive him of any right and can-
not, therefore, by itself be a punishment. One test for
determining whether the termination of the service of a
H government servant is by way of punishment is to ascertain
HARDEEP SINGH v. STATE OF HARYANA (RAY, J.) 1143

whether the servant, but for such termination, had the right A
to hold the post. If he had a right to-tire post as in the three
cases hereinbefore mentioned, the termination of his
service will by itself be a punishment and he will be entitled

,. to the protection of Art. 311."

" ........ But even if the Government has, by contract or
B
under the rules, the right to terminate the employment
Ii. without going through the procedure prescribed for inflict·
Ing the punishment of dismissal or removal or reduction in
rank, the Government may, nevertheless, choose to punish
..... the servant and if the termination of service is sought to be
founded on misconduct, negligence, inefficiency or other c
·~ disqualification, then it is a punishment and the require·
ments of Art. 311 must be complied with."

In the case of Samsher Singh v. State of Punjab and Anr., AIR
1974 (SC) 2192 it has been observed as under:
D
-<I
"No abstract proposition can be laid down that where the
services of a probationer are terminated without saying
anything more in the order of termination than that the
services are terminated it can never amount to a punish-
ment in the facts and circumstances of the case. If a pro-
E
bationer 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 show-
ing cause against his discharge it may in a given case
1, amount to removal from service within the meaning of
Article 311(2) of the Constitution."
F

It has been further observed that the form of the order may be
innocuous but if the order is really by way of punishment then the
protection under Article 311(2) will come into play and the proba-
tioner will be entitled to have an opportunity of hearing before the
'y impugned order of dismissal/removal from service is made. The G
substance of the order and not the form could be decisive.

In a later decision of this Court i.e. Anoop Jaiswal v. Govern·
ment of India and Anr., AIR 1984 (SC) 636 following the aforesaid
two decisions this Court has observed that:
H
1144 SUPREME COURT REPORTS [1987] 3 S.C.R.
).
A "The form of the order is not decisive as to whether the
order is by way of punishment and that even an innocu-
ously 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 provi- 1
B sion of Art. 311(2). Where the form of the order is merely
a camoutlage for an order of dismissal for misconduct it is
always open to the Court before which the order is chal- -~
lenged to go behind the form and ascertain the true charac-

c
ter of the order. If the Court holds that the order though in
the 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."

In the instant case it is clear and evident from the averments
D made in paragraph 3, sub-para (i) to (iii) and paragraph (v) of the ~
counter-affidavit that the impugned order of removal/dismissal from
service was in substance and in effect an order made by way of punish-
ment after considering the service conduct of the petitioner. There is
no doubt that the impugned order casts a stigma on the service career

-
of the petitioner and the order being made by way of punishment, the
E petitioner is entitled to the protection afforded by the provisions of ~
Article 3 IJ(2) of the Constitution as well as by the provisions of Rule
16.24(IX)(b) of the Punjab Police Rules, 1934. The petitioner has not
been served with any charges of misconduct in discharge of his duties
as a police constable nor has he ever been asked to show cause against }
the said charges. The order of removal from service was made because
F of his union activities namely participating in the call for expressing the
protest of the association for improvement in service conditions by
abstaining from taking meals in the Mess on 15th August, 1982
although the petitioner like other members of the association per-
formed his duties on that day and did not abstain from duty. It cannot
be said in the facts and circumstances of the case that the impugned
order is an order simpliciter of removal from service of a probationer ~
G
in accordance with the terms and conditions of the service. The
impugned order undoubtedly, tantamounts to dismissal from service
by reason of misconduct of the petitioner in discharge of the official
duties as police constable. This matter is fully covered by the decision
dated October 17, 1984 of the Constitution Bench in Aiit Singh & Ors.
v. State of Haryana & Ors., (W.P. Nos. 9345-9498/1983) and we are
H
bound to follow the same.
HARDEEP SINGH v. STATE OF HARYANA [RAY, J.] 1145

In the premises aforesaid the writ petition succeeds and is A
allowed, the impugned order of discharge of the petitioner from
Haryana Police Force under rule 12.21 of the Punjab Police Rules,
1934 passed by the Commandant, 2nd Bn., Haryana Armed Police is
quashed and it is directed that he be reinstated in ser,,,ice with 50%
'r back wages from the date of termination of his service till the date of
his reinstatement. He would, however, be entitled to his full salary and B
c other allowances admissible with effect from the date of his reinstate-
\. ment. It is further directed that there would be no break in i:ontinuity
of service for purposes of seniority and pensionary benefits. No costs.

... M.L.A. Petition allowed .