IMPORTANT POINT
Whether the misconduct is motive or foundation of order of termination, test to be applied is to see what was the object of enquiry .

Headnote:Constitution of India-Article 311 -Punjab Police Rules, 1934-Rule 12.21-Respondent, appointed a Constable on 16.3.91 was discharged from service on 17.3.1993 under the Rule which provided that a Constable who is found unlikely to prove an efficient police officer may be discharged by S.S.P.-Civil Court held termination order illegal and judgment was upheld in 1st and 2nd appeal-Appeal-Question whether order of discharge was punitive and thus having been passed without conducting any disciplinary inquiry-A preliminary inquiry was conducted into an incident in which respondent having consumed liquor misbehaved with a lady constable-Order of discharge was passed simplicitor and there was no stigma of punishment-Test would be whether misconduct was motive or foundation of an order of discharge-Misconduct on part of respondent was not inducing factor for termination of respondent-Impugned judgment was liable to be set aside.
       Held : 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 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 punitive in nature. This principle was laid down by Shah, J. (as he then was) as early as 1961 in the case of State of Orissa 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. (Para 8)
       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 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. (Para 13)

JUDGMENT

Y.K. Sabharwal, J.-The factual background which has given rise to this appeal is that :

2. 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, 1993 passed by the Senior Superintendent of Police under the Punjab Police Rule 12.21. Rule 12.21 of Punjab Police Rules, 1934 provides that "a Constable who is found unlikely to prove an efficient police officer may be discharged by the Senior Superintendent of Police at any 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 unlikely to prove to be efficient police officer. Hence he is hereby discharged from service under PPR 12.21 with immediate effect i.e. 17.03.1993." The appeal and the revision filed by the respondent were dismissed by Deputy Inspector General of Police and Director General of Police respectively.

3. In a suit filed by the respondent, the civil court held the termination order to be illegal, null and void and set it aside. Respondent was directed to be reinstated in the service with all rights, benefits and privileges. The 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.

4. The sole question for determination is whether the order of discharge 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.

5. 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 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 compulsory retirement in terms of a specific rule regulating the 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 Fundamental Rules. It 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 terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the 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. In 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 consequences and so Art. 311 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 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 r

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2004 Supreme(SC) 1064

IMPORTANT POINTWhether the misconduct is motive or foundation of order of termination, test to be applied is to see what was the object of enquiry .

Cases Referred (7)

IMPORTANT POINT
Whether the misconduct is motive or foundation of order of termination, test to be applied is to see what was the object of enquiry .