Mr. Permod Kohli, J.: (Oral) - C.M. Nos. 5324-25 of 2011

Heard learned counsel for the appellant.

Applications are allowed.

Delay in filing the appeal is condoned.

C.M. Nos. 5323, 5326 of 2011 & LPA No. 1997 of 2011

2. This L.P.A is directed against the judgement dated 1.2.2011 passed by the learned Single Judge in CWP No.10949 of 1991. Facts of the case may be briefly noticed.

3. Appellant herein was recruited as a Constable on 1.12.1988. He was on probation for a period of 3 years. He was discharged during probation on 6.2.1990 by passing the following order:-

“Order

No._________Dt.________1990(.) Constable Krishan Kumar, No.5/716 is hereby discharged from service with immediate effect under Rule P.P.R. 12.21 as he is found unlikely to prove an efficient police officer.

Sd/-

Commandant,

5th Bn. HAP, Madhuban,”

4. This order came to be challenged by the appellant in the writ petition, referred to herein above. It was inter alia contended that the appellant was falsely implicated in case FIR No. 67 dated 26.01.1990 registered at P.S. Ratia, District Hisar under sections 363, 366 and 34 I.P.C. Appellant was accused along with one Constable Jaivir Singh. The allegations against them were that they took away a girl namely Nirmala Bai. It is not in dispute that both the accused were acquitted in the aforesaid FIR by the Addl. Sessions Judge, Hisar vide order dated 9.2.1990. On his acquittal the appellant made a representation dated 27.2.1991 to the Deputy Inspector General of Police, Haryana Police, Madhuban for taking him back into service. This representation was, however, rejected vide communication dated 13.5.1991. On rejection of the representation the appellant filed the aforementioned writ petition. The contention raised before the learned Single Judge was two fold. (1) That the appellant stands acquitted from the criminal case and the order of discharge on registration of FIR, being illegal, he is entitled to be taken back to service. (2) That the order, though, apparently seems to be innocuous but is stigmatic, if, the veil is lifted and the appellant is afforded opportunity of being heard. The appellant also relied upon Rule 19.5 (1) of the Police Rules which inter alia provides for keeping the Constable under three years of supervision and reporting on intervals of six months by the Sub Inspector or Inspector under whom he is working through a Gazetted Officer to the Superintendent of Police. Based upon the aforementioned provisions, it was contended before the learned Single Judge that the order of discharge, though, apparently seems to be innocuous was in fact stigmatic in nature as the foundation of the order is the registration of a criminal case against him.

5. State of Haryana, however, resisted the claim of the appellant in the reply filed. It was pleaded that the co-accused of the appellant namely Jaivir Singh had earlier filed CWP No.4955 of 1991 against the order of his discharge and the said writ petition stands dismissed, the appellant cannot be treated differently as both of them were co-accused in the criminal case.

6. We have heard learned counsel for the appellant and perused the judgement of learned Single Judge.

7. Learned Single Judge has referred to a Full Bench judgement of this Court titled as Sher Singh Vs. State of Haryana reported as 1994(3) SCT 1, wherein it has been laid down that an employee has no right to the post during probation and if, the competent authority specifies that his working is not satisfactory or his continuation in service is not in public interest on account of his inability, misconduct or inefficiency, it can either terminate his services in accordance with the terms of appointment or the rules governing the service or it may decide to take a punitive action against him. It was further held that the authorities may decide not to initiate punitive action and discharge the employee from the service within the period of probation. Another Full Bench of this Court