STATE OF PUNJAB AND ORS.versusBALBIR SINGH

A                        STA TE OF PUNJAB AND ORS.
                                         v.
                                 BALBIR SINGH

                              SEPTEMBER 13, 2004

B          [Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.]

         Service Law:

         Termination of Services-Police Constable consumed liquor and
c   misbehaved with a lady Constable-Medical examination done-No proper
    inquiry held-Order ofdischarge under Punjab Police Rules 12.21 passed-
     Termination order-Simplicitor or punitive-Held, termination was not
    founded on the misconduct-Hence not punitive.

         Punjab Police Rules, 1934-Rule 12.21-0rder of discharge-Police
D   Constable found unlikely to prove to be efficient police officer since he has
    consumed liquor and misbehaved with lady police constable-Discharged
    from service-Held, order was termination simplicitor and valid.

         Constitution of India, 1950-Article 311:

E        Discharge from service without proper enquiry-Where the motive
    behind the preliminary enquiry is not to determine the misconduct but merely
    to determine the suitability of employee for a particular job, the_ discharge
    order cannot be held punitive.

F         Respondent was appointed a Constable. He was found consuming
    liquor and misbehaving with a ~ady constable. -He was discharged by
    order of Senior Superintendent of Police passed under Rule 12.21 of
    Punjab Police Rules, 1934. In suit filed by respondent, Civil Court held
    termination order to be illegal, null and void and set it aside. Appeal
    filed by State was dismissed. In second appeal, High Court held the
G   order of discharge violative of Article 311 (2) of the Constitution of
    India. Hence, this appeal by State.

         The question involved is whether the order of discharge was punitive
    and, therefore, illegal having been passed without conducting any
H   disciplinary inquiry.
                                         368
                       STA TE v. BALBIR SINGH                          369

     Allowing the appeal, the Court                                            A

     HELD : 1.1. The order of discharge simplicitor, prima facie, is not
punitive, it being in terms of Punjab Police rule 12.21 but the question
is whether the incident which led to the passing of that order was motive
or inducing factor or was the foundation of order of discharge. The test       B
to determine whether the incident is motive or the foundation of an
order of discharge is to ask question as to what was the 'object of
enquiry' into incident. If an enquiry or an assessment is done with the
object of finding out any misconduct on the part of the employee and
for t~reason his services are terminated, then it would be punitive in
nature. On the other hand, if such an enquiry or an assessment is aimed        c
at determining the suitability of an employee for a particular job, such
termination would be termination simplicitor. (373-D-E; 375-C-D)

     Parshotam Lal Dhingra v. Union of India, [1958) SCR 828; Radhey
Shyam Gupta v. UP. State Agro Industries Corporation Ltd & Anr., (1999)        D
2 SCC 21; State ofOrissa v. Ram Narayan Das, [1961) 1SCR606; Mathew
B. Thomas v. Kera/a State Civil Supply Corporation Ltd. & Ors., (2003) 3
SCC 263 and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical
Science & Anr., [2002] 1 SCC 520, referred to.

      1.2. In present case respondent consumed liquor and misbehaved           E
with a lady constable. He was medically examined. On this basis, coming
to the conclusion that he was unlikely to prove himself an efficient Police
Officer, an order of discharge under Punjab Police Rule, 12.21 was
passed. There was no stigma of punishment. The nature of enquiry was
preliminary and not a full scale formal enquiry so as to lead to the           F
inference that the object of enquiry is to determine the guilt of the
respondent. [377-D-E, F-G]

       2. The order of termination cannot be held to be punitive in nature.
 The misconduct on behalf of the respondent was not the inducing factor
 for the termination of respondent. The preliminary enquiry was not done       G
 with the object offinding out any misconduct on the part of the respondent,
.it was done only with a view to determine the suitability of the respondent
 within the meaning of Punjab Police Rules 12.21. The termination was not
 based on the misconduct but the behaviour with a lady Constable and
 consumption ofliquor in office were considered to determine the suitability   H
    370                  SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   of the respondent for the job, in the light of standards of discipline
    expected from police personnel. {378-G-H; 379-A-B]

          State of Punjab & Ors. v. Bhagwan Singh, (2002] 9 SCC 636, relied
    on.

B         Smt. Rajinder Kaur v. State of Punjab & Anr., (1986) 4 SCC 141,
    distinguished.

          CIVIL APPELLAE JURISDICTION: Civil Appeal No. 6342 of2001.

C       From the Judgment and Order dated I9.7.2000 of the Punjab and
    Haryana High Court in R.S.A. No. I 141 of 2000.

        Kuldip Singh, Harpreet Singh Sandhu, Raj K. Pandey and Mrs. Naresh
    Bakshi for the Appellants.

D         K.C. Dua and Y.P. Mahajan for the Respondent.

          The Judgment of the Court was delivered by
                                                     ·<.·
          Y.K. SABHARWAL, J. : The factual background which has given rise
    to this appeal is that :
E
          The respondent who was appointed a Constable on 16.03 .1991, was
    discharged from service with effect from 17th March, 1993 by an order dated
    March 19, l 993 passed by the Senior Superintendent of Police under the
    Punjab Police Rule l~.21. Rule 12.21 of Punjab Police Rules, 1934 provides
F   that "a Constable who is found unlikely to prove an efficient police officer
    may be discharged by the Senior Superintendent of Police at :my time within
    three years of enrolment. There shall be no appeal against the order of
    discharge under this Rule". The Order of discharge states that "Balbir Singh
    has been found ui:ilikely to prove to be efficient police officer. Hence he is
    hereby discharged from service under PPR 12.21 with immediate effect i.e.
G   l 7.03.1993." The appeal and the revision filed by the respondent were
    dismissed by Deputy Inspector General of Police and Director General of
    Police respectively.

         In a suit filed by the respondent, the civil court held the termination
H   order to be illegal, null and void and set it aside. Respondent was directed
..                STATE v. BALBIR SINGH [SABHARWAL, J.]                         371

     to be reinstated in the service with all rights, benefits and privileges. The      A
     first appeal filed by the State was dismissed by the Additional District Judge,
     Patiala and the second appeal by the High Court by the impugned judgment
     which is under challenge in the present appeal.

          The sole question for determination is whether the order of discharge         B
     was punitive and, therefore, illegal having been passed without conducting
     any disciplinary inquiry. The High Court relying upon the decision in Smt.
     Rajinder Kaur v. State of Punjab & Anr., [1986) 4 SCC 141 has held the
     order of discharge to be violative of Article 311 (2) of the Constitution of
     India. Before examining this decision, it would be useful to notice other
     decision relevant on the point in issue.                                           C
          In Parshotam Lal Dhingra v. Union of India, [1958] SCR 828, this
     Court said :

                    "The position may, therefore, be summed up as follows : Any
              and every termination of service is not a dismissal, removal or           D
              reduction in rank. A termination of .service brought about by the
              exercise of a contractual right is not per se dismissal or removal,
              as has been held by this Court in Satish Chander Anand v. The
              Union of India (supra). Likewise the termination of service by
              co1J1pulsory retirement in terms of a specific rule regulating the        E
              conditions of service is not tantamount to the infliction of a
              punishment and does not attract Art. 311(2), as has also been held
              by this Court in Shyam Lal v. The State of Uttar Pradesh, [1955)
              1 S.C.R. 26. In either of the two abovementioned cases the
              termination of the service did not carry with it the penal consequences
              of loss pay, or allowances under r. 52 of the FundamentarRules. It
                                                                                        F
              is true that the misconduct, negligence, inefficiency or other
              disqualification may be the motive or the inducing factor which
              influences the Government to take action under the tenns of the
              contract of employment or the specific service rule, nevertheless, if
              a right exists, under the contract or the rules, to terminate the         G
              service the motive operating on the mind of the Government is, as
              Chagla C.J. has said in Shrinivas Ganesh v. Union of India (supra),
              wholly irrelevant. Jn short, if the termination of service is founded
              on the right flowing from contract or the service rules then, prima
              facie, the termination is not a punishment and carries with it no evil
                                                                                        H
    372                SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A         consequences and so Art. 3 I I is not attracted But even if the
          Government has, by contract or under the rules, the right to
          terminate the employment without going through the procedure
          prescribed for inflicting the punishment of dismissal or removal or
          reduction in rank, the Government may, nevertheless, choose to
B         punish the servant and if the termination of service is sought to be
          founded on misconduct, negligence, inefficiency or other
          disqualification, then it is a punishment and the requirements ofArt.
          3 I I must be complied with. As already stated if the servant has got
          a right to continue in the post, then, unless the contract of employment
          or the rules provide to the contrary, his services cannot be terminated
c         otherwise than for misconduct, negligence, inefficiency or other
          good and sufficient cause. A termination of the service of such a
          servant on such grounds must be a punishment and, therefore, a
          dismissal or removal within Art. 311, for it operates as a forfeiture
          of his right and he is visited with the evil consequences of loss of
D         pay and allowances. It puts an inedible stigma ·on the officer
          affecting his future career. A reduction in rank likewise may be by
          way of punishment or it may be an innocuous thing. If the
          Government servant has a right to a particular rank, then the very
          reduction from that rank will operate as a penalty, for he will then
          lose the emoluments and privileges of that rank. If, however, he has
E         no right to the particu1ar rank, his reduction from an officiating
          higher rank to his substantive lower rank will not ordinarily be a
          punishment. But the mere fact that the servant has not title to the
          post or the rank and the Government has, by contract express or
          implied, or under the rules, the right to reduce him to a lower post
F         does not mean that an order of reduction of a servant to a lower post
          or rank cannot in any circumstances be a punishment. The real test
          for determining whether the reduction in such cases is or is not by
          way of punishment is to find out if the order for the reduction also
          visits the servant with any penal consequences. Thus if the order
          entails or provides for the forfeiture of his pay or allowances or the
G         loss of his seniority in his substantive rank or the stoppage or
          postponement of his future chances of promotion, then that
          circumstance may indicate that although in form the Government
          had purported to exercise its right to terminate the employment or
          to reduce the servant to a lower rank under the terms of the contract
H         of employment orunder the rules, in truth and reality the Government
             STATE v. BALBIR SINGH [SABHARWAL, J.]                        373

        has tenuinated the employment as and by way of penalty. The use           A
        of the expression "tenuinate" or "discharge" is not conclusive. In
        spite of the use of such innocuous expressions, the court has to apply
        the two tests mentioned above, namely, (1) whether the servant had
        a right to the post or the rank or (2) whether he has been visited with
        evil consequences of the kind hereinbefore referred to. If the case       B
        satisfies either of the two tests then it must be held that the servant
        has been punished and the tenuination of his service must be taken
        as a dismissal or removal from service or the reversion to his
        substantive rank must be regarded as a reduction in rank and if the
        requirements of the rules and Art. 311, which give protection to
        Government servant have not been complied with, the termination           c
        of the service or the reduction in rank must be held to be wrongful
        and in violation of the constitutional right of the servant."
                                                 (Emphasis supplied is ours)

        Thus, the order of discharge simplcitor, prima facie, is not punitive,    D
it being in terms of Punjab Police Rulel2.21 but the question still is whether
the incident which led to the passing of that order was motive or inducing
factor or was the foundation of order of discharge.

      The test to detenuine whether the misconduct is 'motive' or the
'foundation' of an order of discharge was laid down ·after exhaustively           E
dealing with the case law on the topic in the case of Radhey Shyam Gupta
v. U.P: State Agro Industries Corporation Ltd. & Anr., [1999] 2 SCC 2i. as
follows :

         "It will be noticed from the above decisions that the termination of
                                                                                  F
         the services of a temporary servant or one on probation, on the basis
         of adverse entries or on the basis of an assessment that his work is
         not satisfactory will not be punitive inasmuch as the above facts are
         merely the motive and not the foundation. The reason why they are
         the motive is that the assessment is not done with the object of
         finding out any misconduct on the part of the officer, as stated by      G
         Shah, J. (as he then was) in Ram Narayan Das case A.IR (1961) SC
         177: [1961] 1 SCR 606: (1961) l LLJ 552). ft is done only with
         a view to decide whether he is to be retained or continued in service.
         The position is not different even if a preliminary enquiry is held
         because the purpose of a preliminary enquiry is to find out if there     H
    374                SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A          is prima facie evidence or material to initiate a regular departmental
           enquiry. It has been so decided in Champaklal case AIR (1964) SC
           1854: (1964) 1 LLJ 752. The purpose of the preliminary enquiry
           is not to find out misconduct on the part of the officer and if a
           termination follows without giving an opportunity, it will not be bad
           Even in a case where a regular departmental enquiry is started, a
B
           charge-memo. issued, reply obtained, and an enquiry officer is
           appointed - if at that point of time, the enquiry is dropped and a
           simple notice of termination is passed, the same will not be punitive
           because the enquiry officer has not recorded evidence nor given any
           findings on the charges. That is what is held in Sukh Raj Bahadur
c          case AIR (1968) SC 1089: [1968] 3 SCR 234 : (1970) 1 LLJ 373
           and in Benjamin case (1967) 1 LLJ 718 SC. In the latter case, the
           departmental enquiry was stopped because the employer was not
           sure of establishing the guilt of the employee. In all these cases, the
           allegations against the employee merely raised a cloud on his
           conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes
D
           case [1980] 2 SCC 593 : [ 1980] SCC L&S 197 the employer was
           entitled to say that he would not continue an employee against whom
           allegations were. made the truth of which the employer was not
           interested to ascertain. In fact, the employer by opting to pass a
           simple order oftermination as permitted by the terms ofappointment
E          or as perm~tted by the rules was conferring a benefit on the employee
           by passing a simple order oftermination so that the employee would
           not suffer from any stigma which would attach to the rest of his
           career if a dismissal or other punitive order was passed The above
          are all examples where the allegations whose truth has not been
F         found, and were merely the motive.

          But in cases where the termination is preceded by. an enquiry and
          evidence is received and findings as to misconduct of a definitive
          nature are arrived at behind the back of the officer and where on
          the basis of such a report, the termination order is issued, such an
G         order will be violative of the principles of natural justice inasmuch
          as the purpose of the enquiry is to find out the truth of the allegations
          with a view to punish him and not merely to gather evidence for
          a future regular departmental enquiry. In such cases, the termination
          is to be treated as based or founded upon misconduct and will be
          punitive. These are obviously not cases where the employer feels
H
             STATE v. BALBIR SINGH [SABHARWAL, J.]                         375

         that there is a mere cloud against the employee's conduct but are         A
         cases where the employer has virtually accepted the definitive and
         clear findings of the enquiry officer, which are all arrived at behind
         the back of the employee - even though such acceptance of findings
         is not recorded in the order of termination. That is why the
         misconduct is the foundation and not merely the motive in such            B
         cases."
                                                 (Emphasis supplied is ours)

       Thus the principle that in order to determine whether the misconduct
is motive or foundation of order of termination, the test to be applied is to
ask the question as to what was the 'object of the enquiry'. If an enquiry         C
or an assessment is done with the object of finding out any misconduct on
the part of the employee and for that reason his services are terminated, then
it would be punitive in nature. On the other hand, if such an enquiry or an
assessment is aimed at determining the suitability of an employee for a
particular job, such termination would be termination simplicitor and not          D
punitive in nature. This principle was laid down by Shah, J (as he then was)
as early as 1961 in the case of State ofOrissa v. Ram Narayan Das, (1961]
 1 SCR 606. It was held that one should look into 'object or purpose of the
enquiry' and not merely hold the termination to be punitive merely because
of an antecedent enquiry. Whether it (order of termination) amounts to an
order of dismissal depends upon the nature of the enquiry, if any, the             E
proceedings taken therein and the substance of the final order passed on such
enquiry. On the facts of that case, the termination ofa probationer was upheld
inasmuch as .the purpose of the enquiry was held to be to find out if the
employee could be confim1ed. The purpose of the enquiry was not to find
out if he was guilty of any misconduct, negligence, inefficiency or other          F
disqualification.

       In the case of Mathew B. Thomas v. Kera/a State Civil Supply
Corporation Ltd. & Ors., [2003] 3 SCC 263, it was observed that the facade
of the termination order may be simplicitor, but the real face behind it is to
get rid of the services of a probationer on the basis of misconduct. In such       G
cases it becomes necessary to travel beyond the order of termination
si~plicitor to find out what in reality is the background and what weighed
with the employer to terminate the services of a probationer. In that process,
it also becomes necessary to find out whether efforts were made to find out
the suitability of the person to continue in service or he is in reality removed   H
    376                  SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   from the service on the foundation of his misconduct. In this case the
    respondent Corporation, in terms of clause 2 of the appointment order
    terminated the services of the appellant, who was a probationer, on charges
    of grave misconduct and repeated dereliction of duty tantamounting to
    unsatisfactory performance. It was his duty to inspect all the commodities
    received by the Corporation at the depots and to verify the quality of goods
B
    in conformity with the specifications given by the Head Office. It was alleged
    that he had betrayed the confidence reposed in him as a responsible officer
    of the Corporation by accepting sub-standard quality goods in collusion with
    suppliers for undue pecuniary benefits. The termination Orders were upheld
    by this court.
c
          In the case of Pavanendra Narayan Verma v. Sanjay Gandhi PG! of
    Medical Sciences & Anr., [2002] l SCC 520, this Court laid down the test
    to determine the nature of the termination order, i.e. whether the termination
    is punitive or simplicitor. The court observed that one of the judicially
    involved tests to determine whether in substance an order of termination is
D
    punitive is to see whether prior to the termination there was (a) a full scale
    formal enquiry (b) into allegations involving moral turpitude or misconduct
    which (c) culminated in a finding of guilt. If all three factors are present
    the termination has been held to be punitive irrespective of the form of the
    tem1ination order. Conversely, if any one of the three factors is missing, the
E   termination has to be upheld. -

          Krishna Iyer, Jin the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel
    Tubes Mazdoor Sabha, [1980] 2 SCC 593 observed that a termina!ion
    effected because the master is satisfied of the misconduct and of the
    consequent desirability of terminating the service of the delinquent servant,
F
    fs a dismissal. If there is suspicion of misconduct the master may say that
    he does not wish to bother about it-and may not go into his guilt but may
    feel like not keeping a man he is not happy with. He may not like to
    investigate nor take· the risk of continuing a dubious servant. Then it is not
    dismissal but termination simplicitor, if no injurious record of reasons or
G   punitive pecuniary cut-back on his full terminal benefits is found. For, in fact,
    misconduct is not then the moving factor in the discharge. In other words,
    it will be a case of motive if the master, after gathering some prima facie
    facts, does not really wish to go into their truth but decides merely not to
    continue a dubious employee. The master does not want to decide or direct .
    a decision about the truth of the allegations. But if he conducts an enquiry
H
             STATE v. BALBIR SINGH [SABHARWAL, J.]                        377

only for the purpose of proving the misconduct and the employee is not heard,     A
it is a case where the enquiry is the foundation and the termination will be
bad.

      In the light of the above legal position, we will now determine whether,
in substance, the order of discharge in the present case is punitive in nature.
For this purpose it would be necessary to ascertain, firstly, the 'nature of
                                                                                  B
enquiry' i.e. whether the termination is preceded by full scale formal enquiry
into allegations involving misconduct on the part of the respondent, which
culminated in the finding of guilt, and secondly.the 'purpose of the enquiry',
i.e. whether the purpose of the enquiry is to find out any misconduct on part
of the employee or it is aimed at finding out as to the respondent being          c
unlikely to prove as an efficient police officer.

     According to the facts on record, no enquiry of the nature specified
above, was held in the present case. It is a case of discharge simplicitor.
Nothing much turns upon the observations made by the Deputy Inspector
General of Police in his order dated October 8, 1993 while deciding the
appeal of the respondent. Respondent consumed liquor and misbehaved with
a lady constable. He was medically examined. On this basis, coming to the
conclusion that he was unlikely to prove himself an efficient Police Officer,
an order of discharge under Punjab Police Rule, 12.21 was passed. There
was no enquiry. There was no stigma of punishment. It seems that while            E
deciding the appeal of the respondent, the Deputy Inspector General of Police
has referred to prima facie finding out of approved facts as a departmental
enquiry and the observations of Deputy Inspector General of Police have
been misconstrued by courts below.

      The nature of enquiry was preliminary and not a full scale formal
                                                                                  :p
enquiry so as to lead to the inference that the object of the enquiry is to
determine the guilt of the respondent~ The basis of the discharge in the
present case was not the misconduct on the part of the respondent, his services
were terminated under Rule 12.21 of the Punjab Police Rules, J.934 considering
the standards of discipline expected from police personnel.                       G
     In State of Punjab & Ors. v. Bhagwan Singh, [2002] 9 SCC 636,
an order of discharge passed under the Punjab Police Rule 12.21 read as
under:

         "It has been reported to me by In-charge of PTC, Ladha Kofthi,           H
    378                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A            Sangrur, Inspector Joginder Singh, RI Police Lines, Faridkot and
             Inspector Sadhu Ram, PS City Kot Kapura that the act and conduct
             of Const. Bhagwan Singh, No. 1819/Fdkt. on the whole is not
             satisfactory and he is unlikely to become a good police officer. I am
             also satisfied with their reports. I, Jasminder Singh, IPS, SSP/
B            Faridkot being competent authority do hereby discharge Const.
             Bhagwan Singh, No. 1819/Fdk. from service w.e.f. today i.e. 4-9-
             1992 A.N. under PPR 12.21 as he is found to be unlikely to prove
             a good police officer."

            The aforesaid order of discharge had been held to be illegal by the
c District Judge and the judgment of the District Judge was affirmed by the
    High Court. Allowing the appeal of the State, this Court held that the order
    of discharge to the. extent it stated that the officer was unlikely to prove a
    good police officer, was in terms o~the relevant Rule 12.21. Even in respect
    of the sentence in the impugned order that the performance of the officer on
D   the whole was 'not satisfactory', this Court held that that also does not
    amount to any stigma. The contention urged on behalf of the employee that
    the reference in the impugned order to the reports of the Inspectors on the
    basis of which the assessment was made would itself amount to stigma was
    rejected.

E        The lower court and the High Court, placing reliance on the case of
    Rajinder Kaur (supra) held the termination invalid. The reliance on the said
    decision is totally misplaced. In that case, 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
F   conduct and on the basis of that investigation the impugned order of
    discharge was made by the Superintendent of Police after an enquiry through
    a Deputy Superintendent of Police regarding the conduct of the appellant. On
    the facts of the case, order of discharge, though in accordance with the
    provisions of Rule 12.21 of the Punjab Police Rules, 1934 was really founded
    on the misconduct as revealed in enquiry into the allegation behind her back
G   by the Deputy Superintendent of Police. The misconduct was the foundation
    of that order of discharge and, therefore, it was quashed.

          In the present case, order of termination cannot be held to be punitive
     in nature. The misconduct on behalf of the respondent was not the inducing
H    factor for the termination of the respondent. The preliminary enquiry was not
             STATE v. BALBIR SINGH (SABHARWAL, J.]                        379

done with the object of finding out any misconduct on the part of the             A
respondent, it was done only with a view to determine the suitability of the
respondent within the meaning of Punjab Police Rule 12.21. The termination
was not founded on the misconduct but the misbehaviour with a lady
Constable and consumption of liquor in office were considered to determine
the suitability of the respondent for the job, in the light of the standards of   B
discipline expected from police personnel.

     For the reasons aforesaid, we are unable to sustain the impugned
judgment. In this view, the appeal is allowed and the judgment and order
of the High Court is set aside. The parties shall bear their own costs.
                                                                                  c
K.G.                                                         Appeal allowed.