Important point
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 be retained in service or not.

Headnote:Service Law—Punjab Police Rules—Rule 12.21—Discharge from service of a probationer—Challenged as illegal and inoperative in law as it was passed by way of punishment, without holding any enquiry—Respondent jointed as a police constable on 4.8.1989—Allegations that he absented from duty w.e.f. 22.2.1990 without making any application for grant of leave—Order of discharge from service w.e.f. 16.3.1990 under Punjab Police Rules 12.21 holding that respondent is not likely to become an efficient police officer—Neither any formal departmental inquiry nor any preliminary fact finding inquiry had been held—A simple order of discharge had been passed—Whether order passed can be held as punitive in nature—(No).
       Held : The consistent 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 be retained in service or not. (Para 17)
       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 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 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 are not judicially trained people. The superior authorities of the departments have to 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. 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 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 probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong. (Para 18)
       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 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 hold that there is direct nexus between the order of discharge of 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 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 and 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 observed in Ajit Singh and others etc. vs. State of Punjab and another (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 of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where 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. (Para 19)

Judgment

G.P. Mathur, J.—This appeal, by special leave, has been preferred 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 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:-

“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, 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 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 further 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 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 affirmed. The appellants then preferred a Second Appeal in the High Court, which was also dismissed on the finding that the respondent was thrown out of job on the ground of absence from duty. Absence from duty is a misconduct and it was a punishment which was imposed upon him without holding a formal inquiry as envisaged under Rule 16.24 (ix) of the Rules. Consequently the order of discharge dated 16.3.1990 was wholly illegal and contrary to law.

4. Learned counsel for the appellants has submitted that the respondent had been appointed on 4.8.1989 and he had not completed three years of service and, therefore, he was only a probationer in terms of the Rules. The impugned order is neither stigmatic nor it affects him with any evil consequences, as it only uses the expression that the respondent is not likely to become an efficient police officer. The Rules confer power unon the appointing authority to discharge a probationer without holding any inquiry if he forms an opinion that the constable is not likely to become an efficient police officer. The learned counsel further submitted that no disciplinary action had been taken against the respondent and as such there was no necessity of holding any formal inquiry wherein the delinquent employee is afforded an opportunity to defend himself.

5. The learned