1. Appeal against discharge order based on misconduct of rape allegations without opportunity of hearing. (Para 3 , 4 )
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2003 Supreme(SC) 423
SUPREME COURT OF INDIA
V.N. KHARE, CJI., BRIJESH KUMAR AND S.B. SINHA, JJ.
JASPAL SINGH - APPELLANT
VERSUS
STATE OF PUNJAB AND OTHERS - RESPONDENTS
CIVIL APPEAL NO. 3007 OF 2003,
DECIDED ON APRIL 7, 2003
An order of discharge that is stigmatic and casts aspersions on an employee amounts to an order of removal from service, necessitating a mandatory opportunity of hearing under Article 311 of the Constitution; otherwise, the order is illegal and void.
Headnote:(A) Constitution of India - Article 311 - Order of discharge - Stigmatic nature - Removal from service - Requirement of opportunity of hearing - An order of discharge that casts aspersions on the employee is stigmatic in character and effectively amounts to an order of removal from service - In such circumstances, it is incumbent upon the authorities to provide an opportunity to show cause as provided under Article 311 of the Constitution - In the absence of such an opportunity, the order of removal is illegal and void. (Para 5)
Facts of the case:
A special police officer was discharged from service by an order stating that the officer had committed grave misconduct, citing a criminal case registered for rape. The officer was subsequently acquitted by the Court of Session. A petition challenging the discharge order was dismissed by the High Court, leading to the present appeal.
Findings of Court:
The impugned order of discharge is stigmatic as it casts aspersions on the employee and is, in effect, an order of removal from service. Consequently, the failure to provide a show-cause notice renders the order unsustainable in law.
Issues: Whether an order of discharge which is stigmatic in nature can be passed without affording the employee an opportunity of hearing as contemplated under Article 311 of the Constitution.
Ratio Decidendi: Since the order of discharge was stigmatic and functioned as an order of removal, the protection of Article 311 of the Constitution, requiring an opportunity to show cause, was applicable. The absence of such an opportunity makes the order of removal illegal and void.
Result: Appeal allowed.
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Table of Contents
2. Appellant argued that the stigmatous order of discharge required prior opportunity of hearing under constitutional mandate. (Para 5 )
3. The discharge order cast aspersion and was stigmatous, effectively removal from service requiring show cause opportunity. (Para 5 )
4. A stigmatous order of removal from service cannot be passed without affording opportunity of hearing under Article 311. (Para 5 )
5. Appeal allowed; order set aside, allowing respondents to pass simpliciter discharge or take disciplinary proceedings. (Para 5 , 6 , 7 )
6. Can an employee be discharged from service without an opportunity of hearing if the order is stigmatous?
No, if the discharge order casts aspersion and is stigmatous, it amounts to removal requiring show cause opportunity under Article 311. (Para 5 )
7. What remedy is available when a stigmatous discharge order is set aside?
The authority may either pass a simpliciter discharge order without stigma or initiate proper disciplinary proceedings against the employee. (Para 6 )
ORDER
1. HEARD COUNSEL FOR THE PARTIES.
2. LEAVE GRANTED.
3. THE APPELLANT HEREIN WAS APPOINTED AS A SPECIAL POLICE OFFICER IN THE PUNJAB POLICE FORCE. SUBSEQUENTLY, THE APPELLANT ALLEGEDLY COMMITTED RAPE AND WAS PROSECUTED UNDER SECTION 376 IPC. WHILE THE PROSECUTION WAS IN PROGRESS, THE APPELLANT WAS DISCHARGED FROM SERVICE BY AN ORDER DATED 2-1-1998 PASSED BY THE SUPERINTENDENT OF POLICE, GURDASPUR. THE ORDER PASSED AGAINST THE APPELLANT RUNS AS UNDER:
"SMT SRISTA DEVI, WIFE OF BALJIT RAJ SANSI, RESIDENT OF AWANKHA REPORTED THAT SHE WAS GOING TO THE FIELDS TO ANSWER THE CALL OF NATURE ON 1-10-1997 AT ABOUT 8.00 P.M. ON THE WAY CONSTABLE HARDIAL SINGH, NO. 495/GSP AND SPO JASPAL SINGH, NO. 73/AC OF POLICE STATION DINA NAGAR CAUGHT HOLD OF HER AND COMMITTED RAPE ON HER WITHOUT HER CONSENT. CASE FIR NO. 155 DATED 2-10-1997 UNDER SECTIONS 376/34 IPC POLICE STATION DINA NAGAR HAD BEEN REGISTERED IN THIS CONNECTION. THE ABOVE ACT ON THE PART OF SPO JASPAL SINGH, NO. 73/AC IS GRAVE MISCONDUCT AND LIABLE TO PUNISHMENT. SPO JASPAL SINGH, NO. 73/AC IS HEREBY DISCHARGED FROM SERVICE WITH IMMEDIATE EFFECT."
4. AFTER THE ORDER OF DISCHARGE WAS PASSED, THE APPELLANT WAS ACQUITTED BY THE COURT OF SESSION. THEREAFTER, THE APPELLANT FILED A PETITION UNDER ARTICLE 226 OF THE CONSTITUTION CHALLENGING THE ORDER DISCHARGING HIM FROM SERVICE. THE SAID WRIT PETITION WAS DISMISSED. IT IS AGAINST THE SAID JUDGMENT, THE APPELLANT HAS PREFERRED THIS APPEAL BY MEANS OF SPECIAL LEAVE PETITION.
5. LEARNED COUNSEL APPEARING FOR THE APPELLANT URGED THAT THE ORDER OF DISCHARGE BEING STIGMATIC IN NATURE, THE SAME COULD NOT HAVE BEEN PASSED WITHOUT AFFORDING OPPORTUNITY OF HEARING AS CONTEMPLATED UNDER ARTICLE OF THE CONSTITUTION. WE FIND SUBSTANCE IN THE ARGUMENT. THE IMPUGNED ORDER, ON THE FACE OF IT, SHOWS THAT IT CASTS ASPERSION AND THEREFORE, IT IS STIGMATIC IN CHARACTER. THE ORDER OF DISCHARGE IS, IN FACT, AN ORDER OF REMOVAL FROM SERVICE. UNDER SUCH CIRCUMSTANCES, IT WAS INCUMBENT UPON THE RESPONDENTS TO HAVE GIVEN OPPORTUNITY OF SHOW CAUSE TO THE APPELLANTS AS PROVIDED UNDER ARTICLE 311 OF THE CONSTITUTION. IN THE ABSENCE OF SUCH AN OPPORTUNITY THE ORDER OF REMOVAL PASSED AGAINST THE APPELLANT IS ILLEGAL AND VOID. IN THAT VIEW OF THE C MATTER, THE ORDER OF REMOVAL FROM SERVICE IS NOT SUSTAINABLE IN LAW.
6. WE, THEREFORE, SET ASIDE THE ORDER UNDER CHALLENGE. WE WOULD LIKE TO OBSERVE THAT IT IS OPEN TO THE RESPONDENTS EITHER PASS AN ORDER OF SIMPLICITER DISCHARGE OR TAKE DISCIPLINARY PROCEEDINGS AGAINST THE APPELLANT.
7. THE APPEAL IS ALLOWED. THERE SHALL BE NO ORDER AS TO COSTS.
