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SUPREME COURT OF INDIA
A.P.Sen : B.C.Ray
Hardeep Singh
Versus
State Of Haryana
Case No. : 1615 of 1986
Date of Decision : 8/13/87
Advocates Appeared: Gupta R.P. : Rao C.V.Subba
Constitution of India - Article 311 - Wholly arbitrary, illegal - Removal from service - Appointed as a constable in the Haryana Police force - Protest undertaken by the Haryana police constables/head constables was a symbolic and peaceful one and no incident whatsoever had occurred on that day respondents, however issued order of dismissal/removal against 425 policemen under Rule 12.21 of the said Rules without serving on them any charge-sheet and without giving them any opportunity of hearing against the charges, prior to the passing of the said order of dismissal/ removal from service. About 154 of such policemen challenged order of their dismissal/removal from service in Writ Petition Nos. 9345 to 9498 of 1983. before this court and the Constitution bench of this court after hearing, set aside the said order of dismissal from service and directed reinstatement in service without any break in their service - One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post – Held, Form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311 - 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 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 - In the instant case it is clear and evident from the averments made in paragraph 3, sub-para (i) to (iii) and paragraph (v) of the counter-affidavit that the impugned order of removal/dismissal from service was in substance and in effect an order made by way of punishment after considering the service conduct of the petitioner - There is no doubt that the impugned order casts a stigma on the service career of the petitioner and the order being made by way of punishment, the petitioner is entitled to the protection afforded by the provisions of Article 311 Constitution as well as by the provisions of Rule 16.24(ix) (b) of the Punjab Police Rule, 1934 petitioner has not been served with any charges of misconduct in discharge of his duties as a police constable nor has he ever been asked to show cause against the said charges - Order of removal from service was made because of his union activities namely participating in the call for expressing the protest of the association for improvement in service conditions by abstaining from taking meals in although the petitioner like other members of the association perform his duties on that day and did not abstain from duty. It cannot be said in the facts and circumstances of the case that the impugned order is an order simplicities of removal from service of a probationer in accordance with the terms and conditions of the service – Petition allowed
B.C. RAY, J.
(1) THE petitioner who was appointed as a constable in the Haryana Police Force on 7/11/1979 has challenged in this writ petition the order dated 24/08/1982 issued by the Commandant, 2nd Bn. Haryana Armed Police, Madhuban on the ground that the impugned order of removal from service was in effect a penal order and as such the same being made without complying with the requirements of Article 311(2) as well as the Rule 16.24(ix)(b) of the Punjab Police Rules, 1934 is wholly arbitrary, illegal and unwarranted and so the impugned order is liable to be quashed and set aside and the petitioner to be reinstated in service. The facts of the case in a nutshell are that the petitioner was enrolled as a constable in the Haryana Police Service in November, 1979 and he had been discharging his duties attached to his office duly and properly. The petitioner was a member of an unregistered Haryana Police Association. The said association had been canvassing for improvement in the service conditions of the police personnel serving with the Haryana Police and on several occasions made representations for improvement of the service conditions of the members of the police service. As a part of its campaign for improvement in service conditions, the association in the month of July gave a call to all its members to participate in "a non-taking of food campaign" which was to take place on 15/08/1982. On that day the petitioner and other police personnel numbering about 16,000.00 consisting of constables and head constables of Haryana Police Force attended to their duties but they did not take their food in the Mess. The protest undertaken by the Haryana police constables/head constables was a symbolic and peaceful one and no incident whatsoever had occurred on that day. The respondents, however issued order of dismissal/removal against 425 policemen under Rule 12.21 of the said Rules without serving on them any charge-sheet and without giving them any opportunity of hearing against the charges, prior to the passing of the said order of dismissal/ removal from service. About 154 of such policemen challenged the order of their dismissal/removal from service in Writ Petition Nos. 9345 to 9498 of 1983. before this court and the Constitution bench of this court after hearing, set aside the said order of dismissal from service and directed reinstatement in service without any break in their service.
(2) THE petitioner because of his activities in the Association was served with the impugned order of removal from service without being given any opportunity of hearing and without being asked to show cause against the purported order of dismissal from service. The petitioner has challenged the validity of this impugned order in this writ petition. A return has been filed on behalf of the respondents sworn by one Raj K. Vashishta, Indian Police Service, Commandant 2nd Bn. Haryana Armed Police, Madhuban, District Karnal, wherein in paragraph 2 it has been stated that the impugned order is not an order of dismissal from service and in fact this is an order of discharge made under Rule 12.21 of the Punjab Police Rules, 1934 as applicable in Haryana. It has been further stated in paragraph 3 of the said affidavit that the petitioner deliberately suppressed the facts that :
(I) For his absence from duty, without leave for more than 24 hours with effect from 25/10/1980 he had been awarded 5 days PD.
(II) Again he had been warned for absence without leave for five hours on 21/04/1981.
(III) Notwithstanding the warnings and punishments awarded for absence from duty in 1980, and again in 1981, the petitioner did not show any improvements in his performance and conduct and again absented from duty on 15/08/1982.
(3) IT has also been stated that a recruit constable who within a span of three years of his enrolment repeatedly absents from duty and does not improve himself in spite of warnings, is not likely to prove an effic
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