Holding

A discharge of a probationer under Rule 12.21 is not punitive and therefore does not require a formal departmental inquiry under Rule 16.24(ix) when the order is based on suitability rather than misconduct.

Summary

The respondent, Constable Sukhwinder Singh, was discharged under Punjab Police Rule 12.21 after unauthorised absence, and he sued for a declaration that the discharge was illegal because it was punitive and made without a formal inquiry. The High Court held the discharge was punishment requiring a departmental inquiry under Rule 16.24(ix) and set it aside. The Supreme Court examined whether a discharge of a probationer under Rule 12.21 is inherently punitive or merely a termination of a temporary appointment. It held that such discharge is not punitive when based on suitability and does not require a formal inquiry, and that the High Court erred in treating the absence as misconduct that made the order punitive. Consequently, the Supreme Court allowed the appeal, set aside the lower courts' judgments and dismissed the respondent's suit.

Issues considered

Whether a discharge of a probationary constable under Punjab Police Rule 12.21 is a punitive action requiring a formal departmental inquiry under Rule 16.24(ix).
Whether the respondent's unauthorised absence from duty constitutes misconduct that makes the discharge punitive.
Whether a probationer has any right to the post that would protect him from summary discharge without a formal inquiry.
Whether the High Court erred in construing the discharge as punishment.

Subjects

probationdischargePunjab Police Rulesmisconductinquirypunishmentservice lawArticle 311temporary employee

Judgment

A STATE OF PUNJAB AND ORS.
v.
SUKHWINDER SINGH

JULY 14, 2005

B [R.C. LAHOTI, CJ., G.P. MATHUR AND P.K. BALASUBRAMANYAN, JJ.]

Service Law:

Punjab Police Rules: Rules 12.2_1 and 16.24 (ix).
c
Probationer-Absence from duty-Discharge from service-Validity-
Constable on probation discharged from service due to unauthorized absence
from duty-High Court held that absence from duty was a misconduct and
the discharge order amounted to punishment imposed on the said constable
D without holding a formal enquiry under R. 16.24 (ix) and, therefore, set aside
the discharge order as being wholly illegal and contrary to law-Correctness
of-Held: A probationer is on test and a temporary employee has no right
to the post-The employer has a right to dispense with the services of an
employee without anything more during or at the end of the probation
period-Jn the present case, a simple order of discharge had been passed-
E The High Court erred in holding that the constable's absence from duty was
the foundation of the order which necessitated an inquiry under R. 16.24
(ix)-High Court judgment set aside.

The respondent was appointed as a police constable and he absented from
duty without making any application for grant of leave or seeking permission
F for his absence. The respondent was, therefore, discharged from service
under Rule 12.21 of the Punjab Police Rules as he was not likely to become
an efficient police officer.

The respondent filed a civil suit seeking a declaration that the discharge
order was illegal and inoperative in law as it was passed by way of punishment,
G without holding any enquiry and without giving him any opportunity of hearing.
The appellant contended that the respondent had put in less than three years
of service and was a probationer on the date of passing of the discharge order
and, therefore, he was rightly discharged under the Rules. The trial court
decreed the suit which was affirmed by the First Appellate Court. In second
H 580
STATE OF PUNJAB v. SUKHWINDER SINGH 581
.
;,.
appeal, the lligh Court held that absence from duty was a misconduct and the A
.~ discharge order was a punishment which was imposed upon the respondent
without holding a formal inquiry under Rule 16.24 (ix) of the Rules and set
aside the discharge order as being wholly illegal and contrary to law. Hence
the appeal.

Allowing the appeal, the Court B

H~LD: 1. It must be borne in mind that no employee whether a
probationer or temporary will be discharged or reverted arbitrarily, without
any rhyme or reason. Where a superior officer, in order to satisfy himself
whether the employee concerned should be continued in service or not, makes
inquiries for this purpose, it would be wrong to hold that the inquiry which C
was held, was really intended for the purpose of imposing punishment. If in

... ··every case where some kind of fact-finding inquiry is made, wherein the
employee is either given an opportunity to explain or the inquiry is held behind
his back, it is held that the order of discharge or termination from service is
punitive in nature, even a bona fide attempt by the superior officer to decide D
/ whether the employee concerned should be retained in service or not would
run the risk of being dubbed as an order of punishment. The decision to
discharge a probationer during the period of probation or the order to
terminate the service of a temporary employee is taken by the appointing
authority or administrative heads of various departments, who area not
judicially trained people. The superior authorities of the departments have to E
take work from an employee and they are the best people to judge whether an
employee should be continued in service and.made a permanent employee or
not having regard to his performance, conduct and overall suitability for the
job. A probationer is on test and a temporary employee has no right to the
post. If mere holding of an inquiry to ascertain the relevant facts for arriving F
at a decision on objective considerations whether to continue the employee in
service or to make him permanent is treated as an inquiry "for the purpose
of imposing punishment" and an order of discharge or termination of service
as a result thereof "punitive in character", the fundamental difference between
a probationer or a temporary employee and a permanent employee would be
completely obliterated, which would be wholly wrong. (592-F-H; 593-A-C] G
S.P. Vasudeva v. State of Haryana, AIR (1975) SC 2292, Bishan Lal
Gupta v. State of Haryana, AIR (1978) SC 363, Oil and Natural Gas
Commission v. Dr. Md. S. ls.kander Ali, AIR (1980) SC 1242, State of
Maharashtra v. Veerappa R. Saboji, AIR (1980) SC 42, G9verning Council
H"'
582 SUPREME COURT REPORTS (2005) SUPP. I S.C.R.

A ofKidwai Memorial Institute of Oncology v. Dr: Pandurang Godwalkar, AIR
(1993) SC 392, Ravindra Kumar Misra v. U.P. State Handloom Corporation
Ltd., AIR (1987) SC 2408, Krishnadevaraya Education Trust v. L.A.
Balakrishna, (2001) 9 sec 319, Pavandendra Narayan Verma v. Sanjay
Gandhi PG/ of Medical Sciences, (2002) 1 SCC 520 and State of Punjab v. "
B Balbir Singh, (2004) 11 sec 743, relied on.

Hardeep Singh v. State of Haryana, (1987) Supp. SCC 295 and State of
U.P. v. Kaushal Kishore Shukla, (1991) 1sec691, held inapplicable.

Smt. Rajinder Kaur v. St.ate of Punjab, (1986) 4 SCC 141, overruled.

C 2. In the present case, neither any formal departmental inquiry nor any
preliminary fact finding inquiry had been held and a simple order of discharge
had been passed. The period of probation gives time arid opportunity to the
employer to watch the work ability, efficiency, sincerity and competence or
the servant and if he is found not suitable for the post, the master reserves a
:p right to dispense with his service without anything more during or at the end
of the prescribed period, which is styled as the period of probation. The mere
holding of preliminary inquiry where explanation is called for from an
employee would not make an oth.erwise innocuous.order of discharge or
termination of service punitive in nature. Therefore, the High Court was
clearly in error in holding that the respondent's absence from duty was the
E foundation of the order, which necessitated an inquiry as envisaged under Rule
16.24 (ix) of the Punjab Police Rules. (593-D-H)

Superintendent of Police v. Dwaraka Das, (1979) 1 SLR 299 and Ajit
Singh v. State of Punjab, AIR (1983) SC 494, relied ·on.

F Sher Singh v. State ofHaryana, (1994) 1PLR456 (P & H) (FB), approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4441 of2001.

From the Judgment and Order dated 30.1.2001 of the Punjab and Haryana
High Court in R.S.A. No. 199of1995.
G
H.S. Munjral and Arun K. Sinha for the Appellant.

Neeraj Kr.Jain, Bharat Singh, Aditya Kr. Choudhary, Sanjay Singh and
Ugra Shankar Prasad for the Respondent.

.H The Judgment of the Court was delivered by
STATE OF PUNJAB v. SUKHWINDER SINGH [G.P. MATHUR, J.] 583
G.P. MATHUR, J. 1. This appeal, by special leave, has been preferred A
by the State of Punjab and others challenging the judgment and decree dated
30.1.2001 of the High Court of Punjab and Haryana by which the Second
Appeal preferred by the appellants was dismissed and the decree passed by
the courts below decreeing the respondent's suit was affirmed.

2. The respondent Sukhwinder Singh joined on 4.8.1989 as a police B
constable and was allotted number 644 in District Amritsar in the State of
Punjab. He was sent for training at Police Recruit Training College Jahan
Khelan. He absented from duty w.e.f. 22.2.1990 without making any application
for grant of leave or seeking permission for his absence. The Senior
Superintendent of Police, Amritsar, passed the following order on 16.3.1990:- C
"Constable Sukhwinder Singh No. 644/ASR of this District is discharged
from service w.e.f. 16.3.1990 under Punjab Police Rules 12.21 as he is
not likely to become an efficient police officer."

The respondent Sukhwinder Singh filed a civil suit.in the Court of Sub-Judge, D
Amritsar, seeking a declaration that the order dated 16.3.1990, passed by the
Senior Superintendent of Police, Amritsar, discharging him from service, was
illegal and inoperative in law as it was passed by way of punishment, without
holding any enquiry and without giving him any opportunity of hearing. The
appellants herein contested the suit on various grounds and the main plea
taken therein was that the respondent had to put in less than three years of E
service and was a probationer on the date of passing of the order dated
16.3.1990 and, therefore, he was rightly discharged under Rule 12.21 of the
Punjab Police Rules (hereinafter referred to as the 'Rules') by the Senior
Superintendent of Police. The Senior Superintendent of Police was of the
opinion that the respondent was not likely to become an efficient police
officer and, therefore, he exercised his powers under Rule 12.21. It was fui:ther F
pleaded that the respondent being a probationer had no right to the post. The
order of discharge did not cast any stigma and did not affect him with any
evil consequences.

3. The learned sub-Judge, Amritsar, after appreciating the evidence on G
record, held that the order dated 16.3 .1990 passed by the Senior Superintendent
of Police, Amritsar, was illegal, null and void and accordingly passed a decree
in favour of the respondent that he would continue in service and was
entitled to his pay, powers, privileges and other service benefits of the post
of a constable. The appeal preferred by the appellants was dismissed by the
Additional District Judge on 28.5.1994 and the decree of the trial court was H
584 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

5. The learned counsel for the respondent has, on the other hand,
submitted that the impugned order of discharge dated 16.3.1990 though
apparently looks to be innocuous but had in fact been passed on the ground -
E . of misconduct, viz., the absence from duty w.e.f. 22.2.1990 and, therefore, it
is founded upon an act of misconduct. He has further submitted tbat the
aforesaid misconduct being the foundation of the order, it was obligatory
upon the appointing authority to have held a formal departmental inquiry
wherein the respondent would have got an opportunity to defend himself
F 6. Rule 12.21 of the Rules reads as under: -

"A constable who is found unlikely to prove an efficient police
officer may be discharged by the Superintendent at any time within
three years of enrolment. There shall be no appeal against an order
of discharge under this rule."
G
7. A Full Bench of Punjab and Haryana High Court in Sher Singh v.
State of Haryana and Ors., (1994) l PLR 456, has examined the content and
scope of Rules 12.21, 19.3 and 19.5 of the Rules in considerable detail. It has
been held in that case that the effect of the Rules is that for a period of three
H years a constable is under surveillance. He is being watched and is kept in
STATEOFPUNJAB v. SUKHWINDERSINGH[G.P.MATHUR,J.] 585

close supervision. He has no right to the post and his services are terminable A .
at any time during this period of three years. He can secure his position in
the service only if he convinces the Superintendent of Police that he is likely
to prove an efficient police officer. The Full Bench has further held that the
Rules contained the necessary guidelines for the Superintendent of Police, on
the basis of which, he has to form an opinion regarding a constable. If on
a consideration of the relevant material, the Superintendent of Police finds B
that a particular constable is not active, disciplined, self-reliant, punctual,
sober, courteous or straight-forward or that he does not possess the knowledge
or the technical details of the work required of him, he can reasonably form
an opinion that he is not likely to prove an efficient police officer. In such
a situation the Superintendent of Police can invoke his power under Rule C
12.21 and can discharge the constable from the force. We are in agreement
with the view taken by the Full Bench of the High Court. In fact; this view
is in consonance with the decision of this Court rendered in The Superintendent
ofPolice, Ludhiana and Anr. v. Dwarka Das,[1979] (I) SLR299, where it was
observed that if Rules 12.21(3) and 12.2 I are read together, it will appear that
the maximum period of probation iii the case of a police officer of the rank D
of constable is three years, for the Superintendent of Police concerned has
the power to discharge him within that period. It was also held that the power
of discharge cannot be exercised under Rule 12.21 after the expiry of the· .
period of three years and consequentially if it is proposed to deal with an
inefficient police officer after the expiry of that period, it is necessary to do E
so in accordance with Chapter XVI of the Rules, which makes provisions for
the imposition of various punishments including dismissal from the police
force. No simple order of discharge under Rule 12.21 can be passed after the
expiry of the period of three years for that will attract Article 311 of the
Constitution.
F
8. Termination of service ofa probationer during or at the end of period
of probation will not ordinarily and by itself be a punishment because the
s.ervant so appointed has no right to continue to hold such a post any more
than a servant employed on probation by a private employer is entitled to.
The period of probation, therefore, furnishes a valuable opportunity to the G
master to closely observe the work of the probationer and by the time the
period of probation expires to make up his mind whether to retain the servant
by absorbing him in regular service or dispense with his service. Period of
probation 'may vary from post to post or master to master and it is not
obligatory on the master to prescribe a period of probation. It is always open
.,._ to the employer to employ a person without putting him on probation. Power H
586 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A to put the employee on probation for watching his performance and the
period during which the performance is to be observed is the prerogative of
the employer. (See Ajit Singh and vthers etc. v. State of Punjab andAnr., AIR
(1983) SC 494.

9. The learned counsel for the respondent has submitted that the court
B should unveil the cloak and go behind the order dated 16.3 .1990, which had
in fact been passed on the ground of continued absence from duty of the
respondent w.e.f. 22.2.1990 and as the said order was founded upon an act
of misconduct, the order of discharge was in fact an order of dis~issal by way
of punishment and since no formal inquiry had been held and the respondent
C had not been given an opportunity of defending himself, the· impugned order
is wholly illegal and is liable to be struck down: In support of his submission
learned counser has placed reliance on Hardeep Singh v. State of Haryana
and Ors., [1987] Supp) SCC 295. In this case the appellant Hardeep Singh had
joined the p9lice service in Haryana in 1979 and became a member of an ,
unregistered Haryana Police Association, which had been canvassing for
D improvement in the service conditions of the police personnel serving with
the Haryana Police and on several occasions made representations for
improvement of service conditions. As part of its campaign the Association
gave a call in the month of July to all its members to participate in "a non-
taking of food campaign", which took place on 15.8.1.982. On that day the
E appellant and 16,000 other Constables and Head Cons(ables attended to their ·
duties but they did not take their food in the mess. The State Government
issued order of dismissal/removal against 425 policemen under Rule 12.21 of
the Rules without serving any charge-sheet. The writ petition filed by 154
such policemen was allowed by this Court. The appellant filed a writ petition
in the High Court which was dismissed. On thorough examination of the
F written statement filed by the State of Haryana and the facts of the case this
Court came to a finding that the order of discharge was passed by way of
punishment on account of his union activities, specially those 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 15.8.2002,
and that it was not a simple order of discharge. The Court specifically held
G that on the facts and circumstances of the case it could not be said that the
order of discharge was an order sinipliciter of removal from service of a
probationer in accordance with the terms and conditions of the service, as it
tantamount to dismissal from service by reason of misconduct. In our opinion,
this authority can be of no assistance to the respondent in view of the
H conclusion drawn by this Court that the order had been passed on account
STATE OF PUNJAB v. SUKHWINDER SINGH (G.P. MATHUR, J.] 587
of the union activities of the employee and his participation in the call for A
expressing the protest.

l 0. The other case relied upon by the learned counsel for the respondent
is State of Uttar Pradesh and Anr v. Kaushal Kishore Shukla, [1991] I SCC
691. In this case the employee Kaushal Kishore Shukla was appointed on ad
hoc basis for fixed period on 18.2.1977 as Assistant Auditor, which was B
extended on several occasions and the last extension was granted on 21.1.1980
which was to expire on 28.2.1981. His services were terminated on 23.9.1980.
The termination order was challenged on the ground that certain allegations
of misconduct had been made against him regarding which an ex parte inquiry
was held wherein he was not given any opportunity of hearing. These C
allegations were also referred to in the counter affidavit, which was filed on
behalf of the State before the High Court. It was submitted that the order of
termination of service was founded on the allegations of misconduct and the
ex parte inquiry report. The High Court accepted the plea of the employee and
quashed the termination order. The appeal filed by the State was allowed by
• this Court and the order of the High Court was set aside with the following D
observations : -

"The respondent being a temporary. government servant had no
right to hold the post, and the competent authority terminated his
·""! services by an innocuous order of termination without casting any
stigma on him. The termination order does not indict the respondent E
for any misconduct. The inquiry which was held against the respondent
was pr~liminary in nature to ascertain the respondent's ~uitability and
continua:n~e in service. There was no element of p~nitife proceedings
as no charges had been framed, no inquiry officer was appointed, no
findings were recorded, instead a preliminary inquiry was held and on F
the report of the preliminary inquiry the competent authority terminated
the respondent's services by an innocuous order in accordance with
the terms and conditions of his service. Mere fact that prior to the
issue of order of termination, an inquiry against the respondent in
regard to the allegations of unauthorized audit of Boys Fund was
held, does not change the nature of the order of termination into that G
of punishment as after the preliminary inquiry the competent authority·
took no steps to punish the respondent, instead it exercised its power
to terminate the respondent's services in accordance with the contract
• of service and the Rules. The allegations made against the respondent
contained in the counter-affidavit by way of defence filed on behalf
H'
588 SUPREME COURT REPORTS [2005) SUPP. 1 S.C.R.

A of the appellants also do not change the nature and character of the
order of termination."

11. In S.P. Vasudeva v. State of Haryana and Ors., AIR (1975) SC 2292,
it was held that where an order of reversion of a person who had no right
to the post, does not show ex facie that he was being reverted as a measure
B of punishment or does not cast any stigma on him, the courts will not
normally go behind that order to see if there were any motivating factors
behind that order. In Bishan Lal Gupta v. State of Haryana and Ors., AIR
1978 SC 363, it was held where the intention behind an inquiry against a
probationer was not to hold a full departmental trial to punish but a summary
C inquiry to determine only suitability to continue in service of the probationer
and the probationer was given ample opportunity to answer in writing whatever
was alleged against him in show cause notices, the innocuous order of
termination following such summary inquiry could not be said to be an order
of punishment which entitled him to a full-fledged inquiry contemplated by
Article 3 IJ of the Constitution. In Oil and Natural Gas Commission v. Dr. Md
D S. Iskander Ali, AIR (1980) SC 1242, it was held as under: -

"Where the short history of the service of the probationer appointed
in a temporary post clearly showed that his work had never been
satisfactory and he was not found suitable for being retained in
service and that was why even though some sort of an enquiry was
E started, it was not proceeded with and no punishment was inflicted
on him and in these circumstances, if the appointing authority
considered it expedient to terminate the services of the probationer it
could not be said that the order of termination attracted the provisions
of Article 311, when the appointing authority had the right to terminate
the service without assigning any reasons."
F
These are all decisions by Benches _of three learned Judges.

12. The same question was considered in considerable detail in State
of Maharashtra v. Veerappa R. Saboji AIR (1980) SC 42, and it was observed
G as under:

"Ordinarily and generally the rule laid down in most of the cases by
this Court is that you have to look to the order on the face of it and
find whether it casts any stigma on the Government servant. In such
a case there is no presumption that the order is arbitrary or ma/a fide
H unless a very strong case is made out and proved by the Government
STATE OF PUNJAB v. SUKHWINDERSINGH [G.P. MATHUR, J.) 589

servant who challenges such an order." A
In Governing Council of Kidwai Memorial Institute of Oncology,
Bangalore v. Dr. Pandurang Godwalkar and Anr., AIR (1993) SC 392, the
same principle was reiterated and it was held that where the service of an
employee is terminated during the period of probation or while his appointment
is on temporary basis, by an order of termination simpliciter after some B
preliminary enquiry it cannot be held that as some enquiry had been made
against him before issuance of order of termination it really amounted to his
removal from service on a charge, as such penal in nature.

13. In Ravindra Kumar Misra v. UP. State Handloom Corporation Ltd
and Anr., AIR (1987) SC 2408, the appellant had been appointed on 30.10.1976 C
and had got two promotions while still working in temporary status and by
1982 he had been working as Deputy Production Manager. On 22.11.l 982 he
was placed under suspension and the suspension order recited that as a
result of preliminary inquiries made by the Central Manager it had come to
notice that the appellant was responsible for misconduct, dereliction of duty, D
mismanagement and showing fictitious production of terrycot cloth. The
suspension order was revoked on 1.2.1983 and thereafter on I 0.2.1983 a simple
order terminating his services was passed reciting that his services were no
more required and his service would be deemed to be terminated from the date
of receipt of the notice. It was further mentioned therein that he would be
entitled to receive one month's salary in lieu of notice period. The termination E
order was challenged by the appellant on the ground that the same was
punitive in nature, which was also demonstrated from the fact that shortly
before the order of termination a suspension order had been passed wherein
a specific charge of misconduct against him was mentioned. After referring
to several earlier decisions this Court repelled the challenge made by the F
employee by observing as under in paragraph 6 of the Report: -

" ............... .In several authoritative pronouncements of this Court, the
concept of 'motive' and 'foundation' has been brought in for finding
out the effect of the order of termination. If the delinquency of the
officer in temporary service is taken as the operati~g motive in G
terminating the service, the order is not considered as punitive while
if the order of termination is founded upon it, the termination is
considered to be a punitive action. This is so on account of the fact
that it is necessary for every employer to assess the service of the
temporary incumbent in order to find out as to whether he should be
confirmed in his appointment or his services should be terminated. It H
590 SUPREME COURT REPORTS (2005] SUPP. 1 S.C.R.

may also be necessary to find out whether the officer should be tried
for some more time on temporary basis. Since both in regard to a
temporary employee or an officiating employee in a higher post such
an assessment would be necessary, merely because the appropriate
authority proceeds to make an assessment and leaves a record of its
views, the same would not be available to be utilized to make the order
B of termination following such assessment, punitive in character."

14. In Krishnadevaraya Education Trust and Anr v. L.A. Balalcrishna,
[200 l] 9 SCC 319, it was held that a probationer is on test and if his services
are found not be satisfactory, the employer has, in terms of the letter of
C appointment, the right to terminate the services. The mere fact that in response
to the challenge the employer states that the services were not satisfactory,
would not ipso facto mean that the services of the probationer were terminated
by way of punishment.

15. Pavanendra Narayan Verma v. Sanjay Gandhi PG/ of Medical
D Sciences and Anr., [2002] l SCC 520, is a recent decision of this Court where,
after referring to large number of earlier decisions, the law on the point has
been very clearly elucidated in the following manner :-

"One of the judicially evolved tests to determine whether in
substance an order of termination is punitive is to see whether prior
E 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 termination order. Conversely if any one of the three factors is
missing the termination has been upheld.
F

Generally speaking when a probationer's appointment is terminated
it means that the probationer is unfit for the job, whether by reason
of misconduct or ineptitude, whatever the lartguage used in the
G termination order may be. Although strictly speaking, the stigma is
implicit in the termination, a simple termination is not stigmatic. A
termination order which explicitly states what is implicit in evefy .~rder
of termination of a probationer's appointment, is also not stigmatic. In
order to amount to a stigma, the order must be in a langua~'Which
imputes something over and above mere unsuitability for t~~o~~'.'
H
STATEOFPUNJAB v. SUKHWINDERSINGH[G.P.MATHUR,J.] 591

16. State of Punjab and Ors v. Balbir Singh, [2004) 11 SCC 743, is a A
direct case on Rule '12.21 of the Rules. Here also after considering large
number of earlier decisions the Court laid down the following principle: -

"The order of discharge simpliciter, prima facie, is not punitive,
it being in terms of Punjab Police Rule 12.21 but the question still is
whether the incident which Jed to the passing of that order was motive B
or inducing factor or was the foundation of order of discharge.

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 or
an assessment is done with the object of finding out any misconduct C
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 simpliciter and not punitive in nature. The other test to D
determine whether, in substance, the order of discharge is punitive in
nature is to ascertain the "nature of enquiry" i.e. whether the
termination is preceded by a full-scale formal enquiry into allegations
involving misconduct on the part of the respondent, which culminated
in the finding of guilt, and the "purpose of the enquiry" i.e. whether
the purpose of the enquiry is to find out any misconduct on the part E
of the employee or it is aimed at finding out as to the respondent
being unlikely to prove as an efficient police officer."

17. The learned counsel for the respondent has also placed reliance on
Smt. Rajinder Kaur v. State of Punjab and Anr., [1986) 4 SCC 141, which is
a decision by a Bench of two learned Judges. In this case the appellant was F
appointed as a lady constable on 7.5.1979 and after completion of training she
was posted in the police lines in March, 1980. The Superintendent of Police,
Hoshiarpur, discharged the appellant by order dated 9.9.1980 under Rule 12.21
of the Rules. The order of discharge read as under: -

"Lady Constable Rajinder Kaur No. 732 is unlikely to prove an G
efficient police officer. She is, therefore, hereby discharged from the
Police Force under Punjab Police Rules 12.21 with effect from today
(September 9, 1980).

Issue order in O.R. and all concerned to notice and necessary H
592 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

.A action."

The main contention on behalf of the appellant was that an inquiry was made
by the Deputy Superintendent of Police as to the character of the appellant
into the allegation that she stayed at Mahalpur for one or two nights with
one constable Jaswant Singh and evidence was recorded therein without
B giving the appellant any opportunity of hearing or to cross-examine the
witnesses and the impugned order was made after completion of the
investigation on the ground of her misconduct which cast a stjgma on her
service career. This contention was accepted and on the finding that though
the order of discharge stated to be made in accordance with the provisions
C of Rule 12.21 of the Rules, it was really made on the basis of the misconduct
as found on inquiry into the allegation behind her back and further that
though the order was couched in innocuous terms,. the order was merely
camouflage for an order of dismissal from service on the ground of misconduct,
the impugned order of discharge was set aside. With respects we are unable
to agree with the view taken in this case. As discussed earlier the consistent
D view of this Court is that even if some kind of preliminary inquiry or fact
finding inquiry is held in which the employee is not afforded an opportunity
of hearing, the order of discharge of a probationer cannot be treated as an
order of punishment as the appointing authority has tO necessarily ascertain
all the relevant facts before taking a decision whether the probationer should
E be retained in service or not. The decision in Smt. Rajinder Kaur v. State of
Punjab, is hereby over-ruled.

18. It must be borne in mind that no employee whether a probationer
or temporary will be discharged or reverted, arbitrarily, without any rhyme or
reason. Where a superior officer, in order to satisfy himself whether the
F employee concerned should be continued in service or not makes inquiries
for this purpose, it would be wrong to hold that the inquiry which was held,
was really intended for the purpose of imposing punishment. If in every case
where some kind of fact finding inquiry is made, wherein the employee is
either given an opportunity to explain or the inquiry is held behind his back,
it is held that the order of discharge or termination .from service is punitive
G in nature, even a bona fide attempt by the superior officer to decide whether
the employee concerned should be retained in service or not would run the
risk of being dubbed as an order of punishment. The decision to discharge
a probationer during the period of probation or the order to terminate the
service of a temporary employee is taken by the appointing authority or
H administrative heads of various departments, who are not judicially trained I

•
f
STATEOFPUNJAB v. SUKHWINDERSINGH[G.P.MATHUR,J.] 593

• . people. The superior authorities of the departments have to take work from A
an employee and they are the best people to judge whether an employee
should be continued in service and made a permanent employee or not having
regard to his performance, conduct and overall suitability for the job. As
mentioned earlier a probationer is on test and a temporary employee has no
right to the post. If mere holding of an inquiry to ascertain the relevant facts B
for arriving at a decision on objective considerations whether to continue the
employee in service or to make him permanent is treated as an inquiry "for
the purpose of imposing punishment" and an order of discharge or termination
of service as a result thereof "punitive in character", the fundamental difference
between a probatjoner or a temporary employee and a permanent employee
would be completely obliterated, which would be wholly wrong. c
19. In the present case neither any formal departmental inquiry nor any
preliminary fact finding inquiry had been held and a simple order of discharge
had been passed. The High Court has built an edifice on the basis of a
· statement made in the written statement that the respondent was habitual
absentee during his short period of service and has concluded therefrom that D
it was his absence from duty that weighed in the mind of Senior Superintendent
of Police as absence from duty is a misconduct. The High Court has further
gone on to ho.ld that there is direct nexus between the order of discharge of
1
the respondent from service and his absence from duty and, therefore, the
order discharging him from service will be viewed as punitive in nature calling E
for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion 'that
the High Court has gone completely wrong in drawing the inference that the
order of discharge dated 16.3.1990 was, in fact, based upon the misconduct
an~ was, therefore, punitive in nature, which should have been preceded by
a regular departmental inquiry. There cannot be any doubt that the respondent
was on probation having been appointed about eight months ·back. As F
observed in Ajit Singh and Ors. etc. v. State of Punjab and Anr., (supra) the
period of probation gives time and opportunity to the employer to watch the
work ability, efficiency, sincerity and competence of the servant and if he is
found not suitable for the post, the master reserves a right to dispense with
his service without anything more during or at the end o.f the prescribed G
period,.which is styled as period of probation. The mere holding of preliminary
inquiry whe-re explanation is called from an employee would not make an
otherwise innocuous order of discharge or termination of service punitive "in
nature. Therefore, the High Court was clearly in error in holding that the
respondent's absence from. duty was the foundation of the order, which
necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules. H
594 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A 20. For the reasons discussed above, we are of the opinion that the
view taken by the High Court and also by the lower Courts is wholly erroneous
in law and must be set aside. The appeal is accordingly allowed and the
judgment and decree passed by the High Court and also by the learned sub-
Judge and learned Additional District Judge are set aside. The suit filed by
the plaintiff-respondent is dismissed.
B
21. No costs.

v.s.s. Appeal allowed.