RAJINDER KAURversusPUNJAB STATE & ANR.

A


                             RAJINDER KAUR
                                    v.
                           PUNJAB STATE &ANR.
B
                                AUGUST 8, 1986

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

           Punjab Police Rules, 1934, Vol. 7, Rule 12.21-Constitution of
     India, Article 311 (2 ): Temporary constable-Order of discharge from
c    service· in innocuous terms...::.Based on allegation of misconduct-
     Whether unconstitutional and liable to be quashed.

            The appellant, a temporary lady constable, was discharged from
     service by an order nnder Role ll.21 Volnme 7 of the Punjab Police
D    Rules 1934 on the allegation that she was unlikely to prove an efficient
     police officer. A representation made by her to the Deputy Inspector
     General of Police .igainst that order was rejected. A revision filed by the
     appellant against the latter order was dismissed. A suit filed by her
     challenging the order of discharge as bad, arbitrary and against the
     principles of law was dismissed. This order was confirmed by the Dis-
E    trict Judge and the High Court in appeal.

            In the appeal to this Court by special leave it was contended for
      the appellant that the impugned order of discharge from service was
      made not in accordance with the said Rule, in accordance with the
      terms and conditions of the service, but was made by way of punish-
F     ment on the ground of her misconduct, as found on the basis of the           ·1
      investigation of certain allegations behind her back, without giving her
      any opportunity of hearing in the enquiry or to cross-examine the
    . witnesses.

           Allowing the appeal, the Court,
G
          HELD: The impugned order of discharge, though couched in in-
    nocuous terms and stated to be made in accordance with the provisions
    of Rule ll.21, Vol. 7 of the Puujab Police Rules, 1934, was really a
    camouflage for an order of dismissal from service ou the ground of
    misconduct as. found 011 an enquiry into the allegations behind her back.
H   It was penal in nature as it cast a stigma on the service career of the
                                        500
                         R. KAUR v. PUN.STATE !RAY,J.]                    501
     appellant. This order was made without serving the appellant any            A
     chargesheet without asking for any explanation from her without giving
     any opportunity to show cause against the purported order of dismissal
     from service and without giving any opportunity to cross-examine the
     witnesses. It, therefore, contravenes Art. 311(2) of the Constitution and
     is liable to he quashed and set aside. [503F-G; 504B; 506B-C]
                                                                                 B
           P.L. Dhingra v. Union of India, [1958] SCR p. 828 at 862, K.H.
     Phadnis v. State of Maharashtra, (1971] SCR (Supp.)) p. Jl8, State of
     Bihar & Ors. v. Shiva Bhikshuk Mishra, [1971] 2 SCR 191 at 196,
     Shamsher Sing~ & Anr. v. State of Punjab, [1975] l SCR p. ~14 at 837
     and Anoop Jaiswal v. Government of India & Anr., [1984] 2 SCR p.
     453, referred to.                                                           c
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 23l7
     of 1986.

          From the Judgment and Order dated 10.10.1984 of the Punjab
     and HaryanaHigh Court in R.S.A. No. 2198of1984.                             D

           K.N. Rai for the Appellant.

           R.S. Sodhi for the Respondents.

           The Judgment of the Court was delivered by                            E

          RAY, J. After hearing the learned counsel for both the parties
     and on consideration of the question of law involved in this petition.
·{   Special Leave is granted. Arguments heard.           ·
                                                                                 F
          The appellant petitioner was appointed as a lady constable in
     Hoshiarpur District on 7.5.1979. After completion of training she was
     posted in March, 1980 in the police lines, Hoshiarpur. The Superinten-
     dent of Police, Hoshiarpur discharged the appellant from service by an
     order dated 9.9. 1980 under Rule 12.21 volume 7 of the Punjab Police
     Rules, 1934. The said Order is in the following terms:                      G

                "Lady Constable Rajinder Kaur No. 732 is unlikely to
                prove an efficient police officer. She is, therefore, hereby
                discharged from the Police Force Under P.P. 12.21 with
                effect from today (9.9.1980).
                                                                                 H
    502                   SUPREME COURT REPORTS             [1986] 3 S.C.R.

A              Issue orders in O.R. and all concerned to notice and neces-
               sary action."                                                    --~
          This order was made, it has been stated in the petition, without
    serving any charge-sheet on her and without asking her to explain any



                                                                                .
    charge. The order also has not recorded any reason for her discharge
B   from service. Against this order the appellant made a representation
    to the Deputy Inspector General of Police, Jullunder Range. The said
    representation was rejected on 17.10.1980. The appellant filed a revi-
    sion against the order of the Deputy Inspector General of Police and
    the same was also dismissed on 15.4.1981. The appellant thereafter          ~
    filed a civil suit No. 327/ASSJ/82 in the Court of Additional Senior
c   Sub-Judge, Hoshiarpur on 16.11.1981 challenging the order of dis-
    charge as bad, arbitrary and against the principles of law. The said suit
    was dismissed by the Additional Senior Sub-Judge, Hoshiarpur on
    28.2.1983. Thereafter, the appellant filed an appeal before the District    -1.
    Judge, Hoshiarpur on 31.3.1983 and it was numbered as Civil Appeal
    No. 45 of 1983. The said arpeal was dismissed on 7.5. 1984 and' the
D   judgment of the Trial Court was confirmed. A Regular Second Appeal
    No. 2198 of 1984 was filed before the High Court of Punjab and
    Haryana at Chandigarh. The said Second Appeal was dismissed on



E
    10.10.1984. Hence the instant application for grant of special leave to
    appeal under Article 136 of the Constitution has been filed in thi~
    Honourable Court by the appellant.

          The main argument advanced on behalf of the appellant is that
    the impugned order of discharge from service was made not in accord-
                                                                                 -
    ance with Rule 12.21 of the Punjab Police Rules, 1934 in accordance
    with the terms and conditions of the service but it was made by way of
    punishment. An enquiry was made by Deputy Police Superintendent,
F   Garhshankar as to the character of the appellant into the allegation
    that she stayed at Mahalpur for 1 or 2 nights with one constable,
    Jaswant Singh and evidences were recorded therein without giving the
    appellant any opportunity of hearing in the enquiry and without giving
    her any opportunity to cross-examine the witnesses and the impugned
    order was made after the completion of the investigation on the
G   ground of her misconduct which casted a stigma on her service career.
    The order in question is, therefore, not an innocuous one though
    expressed in innocuous terms. It is made by way of punishment, the
    ground being her misconduct as found on the basis of the investigation
    of certain allegations behind her back.

H         It was urged on behalf of the respondents that the order dis-
                           R. KAUR v. PUN. STATE (RAY, J.)                   503

      charging the appellant from service was not made by way of punish-            A
      ment. The order was made in accordance with the terms of Rule 12.21
      of the said Rules which empowers the authorities to do away with the
      service of the constable at any time within three years of her enrol-
      ment, if she is found unlikely to prove an efficient police officer, by the
      Superintendent of Police and no appeal has been provided for under
                                                                                    B
      the Rules against the said order of discharge. It was, therefore, urged
      that the order being made in accordance with the conditions of service
      of the appellant and so it is unchallengeable before this Court by filing
      a special leave petition to appeal.

            ·Admittedly, the appellant was appointed as a lady constable on
      7.5.1979 and she was posted in March, 1980 in the police lines, Hoshiar-      c
      pur after completion of her training. It has been stated in para 15 of
      the petition that on an allegation made by the department against the
      appellant that she spent two nights with a constable an investigation
      was caused to be made into the said allegation against her conduct and
    ' on the basis of that investigation the impugned order of discharge was
      made by the Superintendent of Police, Hoshiarpur. In para 15 of the
                                                                                    D
      counter affidavit sworn on behalf of respondents it has been stated that
      the Superintendent of Police, Hoshiarpur, got conducted a confiden-
      tial enquiry through a Deputy Superintendent -0f Police regarding the
      conduct of the appellanL On an overall assessment of the work and
      conduct of the appellant, the Superintendent of Police, Hoshiarpur
      came to the conclusion that she was not likely to become an efficient         E
      Police Officer and thus passed an order discharging her from service in
      accordance with the conditions of the service. These averments made
      in para 15 of the counter-affidavit have been verified to be true and
      correct to the knowledge of the deponent based upon the information
      derived from the record of the case. Thus, it is clear from these aver-
                                                                                    F



r
      ments that the impugned order of discharge though stated to be made
      in accordance with the provisions of Rule 1.2.21 of the Punjab Police
      Rules, 1934, is really made on the basis of the misconduct as found on
      enquiry into the allegation behind her back by the Deputy Superinten-
      dent of Police, Garhshankar. It is not disputed that the enquiry was
      made without serving her the charge-sheet and without giving her any
      opportunity to explain the charges and the allegations levelled against       G
      her. The enquiry was conducted behind her back and on the basis of
      the result of the investigation she was discharged from service. There- .
      fore in these circumstances, it does not lie in the mouth of the respon-
      dents to submit before this Court that the order is an innocuous one
      and it is an order made simply in accordance with the conditions of her
                                                                                    H
    504                   SUPREME COURT REPORTS             [19861 3 S.C.R.

A   service under Rule 12.21 of the said Rules. On the other hand, in the
    background of these facts and circumstances it is crystal clear that the
    impugned order of discharge from service of the appellant was made
    on the ground of her misconduct and it is penal in nature as it casts a
    stigma on the service career of the appellant.
B
        · The next question arises is whether the appellant who is yet to be
    confirmed in the service and has no right to the post in question, the
    impugned order can be assailed as violative of the protection given by
    Article 311(2) of the Constitution. This point has been well-settled by
    several decisions of this Court.

c       This Court has stated in no uncertain terms in the case of P. L.
    Dhingra v. Union ofIndia, [1958] SCR p. 828 at 862 as follows:

                "But even if the Government has, by contract or under the
                rules, the right to terminate the employment without going
D               through the procedure prescribed for inflicting the punish-
                ment of dismissal or removal or reduction in rank, the Gov-
                ernment may, nevertheless, choose to punish the servant
                and if the termination of service is sought to be founded on
                misconduct, negligence, inefficiency or other disqualifica-
                tion, then it is a punishment and the requirements of Arti-
E               cle 311 mustbecompliedwith."

          This decision has been relied upon by this Court in the case of
    K.H. Phadnis v. State of Maharashtra, [1971] SCR (Supp.) p. 118
    where it has been held that even in the case of reversion of an emp-
    loyee who has been repatriated from the temporary post of Controller of
F   Food Grains Department to his parent department of Excise and Pro-
    hibition, to which he had a lien might be sent back to the substantive
    post in ordinary routine administration or because of exigencies of
    service. Such a person may h;ive been drawing a salary more than that
    of his substantive post but when he is reverted to the parent depart-
    ment the loss of salary cannot be said to have any penal consequences.
G   The matter has to be viewed as one of substance and all relevant
    factors have to be considered in ascertaining whether the order is a
    genuine one of accidence of service in which a person sent from the
    substantive post to a temporary post has to go back to the parent post
    without any aspersion against his character or integrity. or whether the
    order amounts to a reduction in rank by way of punishment.
H
                          R. KAUR v. PUN. STATE [RAY, J.J                 505

           It has been further observed by th.is Court in the case of State of   A
      Bihar & Ors. v. Shiva Bhikshuk Mishra. [1971] 2 S.C.R. 191at196.

                 "The form of the order is not conclusive of its true nature
                 and it might merely be a cloak and camouflage for an order
                 founded on misconduct. It may be that an order which is
                                                                                 B
                 innocuous on the face and does not contain any imputation
                 of misconduct is a circumstance or a piece of evidence for
                 finding whether it was made by way of punishment or
_..              administrative routine. But the entirety of circumstances
 I               preceding or attendant on the impugned order must be
                 examined and the overriding test will always be whether
                 the misconduct is a mere motive or is the very foundation       c
                 of the order."

           Jn the case of Shamsher Singh & Anr. v. State of Punjab, [1975]
      1 S.C.R. p. 814 at 837 it has been observed as under:
                                                                                 D
                 "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 prob-
                 ationer is discharged on the ground of misconduct, or inef-
                                                                                 E
                 ficiency or for similar reason without a proper enquiry and
                 without his getting a reasonable opportunity of showing
                 cause against his discharge it may in a given case amount to
                 removal from service within the meaning of Article 31 I (2)
                 of the Constitution."
                                                                                 F
           It has been observed by this Court in the case of Anoop Jaiswa/
      v. Government of India & Anr., [1984] 2 S.C.R. p. 453 as under:

                 "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      G
                 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."
                                                                                 H
    506                   SUPREME COURT REPORTS            (1986] 3 S.C.R.

A          On a conspectus of all these decisions mentioned hereinbefore,
    the irresistible conclusion follows that the impugned order of discharge
    though couched in innocuous terms,. is merely a camouflage for an
    order of dismissal from service on the ground of misconduct. This
    order has been made without serving the appellant any charge-sheet,
B   without asking for any explanation from her and without giving any
    opportunity to show cause against the purported order of dismissal
    from service and without giving any opportunity to cross-examine the
    witnesses examined, that is, in other words the order has been made in
    total contravention of the provisions of Article 311(2) of the constitu-
    tion. The impugned order is, therefore, liable to be quashed and set
    aside. A writ of certiorari be issued on the respondents to quash and
c   set aside the impugned order dated 9.9.1980 of her dismissal from
    service. A writ in the nature of mandamus and appropriate directions
    be issued to allow the appellant to be reinstated in the post from which
    she has been discharged. The appeal is thus allowed with costs. The
     authorities concerned will pay all her emoluments to which she is
    ·entitled to in accordance with the extant rules as early as possible in
D
     any case not later than eight weeks from the date of this judgment.


    P.S.S.                                                 Appeal allowed.