1. This is a petition under Article 226 of the Constitution by one Ramnarayan Das who was a probationary sub-inspector of police against the following order passed by Sri R.C. Dash, Deputy Inspector-General of Police, Southern Range, on 11 December 1954 discharging him from service for unsatisfactory work and conduct.
Range Order No. 371/SR. dated
11 December 1954
Probationary Sub-Inspector Ramnarayan Das of Cuttack district is discharged from service for unsatisfactory work and conduct with effect from the date the order is served on him.
(Sd.) R.C. Dash,
Southern Range,Orissa, Cuttack
2. The petitioner was a probationary sub-inspector of police in the Orissa Police Force and on 28 July 1954 he was served with a notice calling upon him to show cause why he may not be discharged from service for gross neglect of duty and unsatisfactory work. Ten specific instances of neglect of duty were mentioned in the charge and two instances of misconduct including acceptance of illegal gratification from some persons were also specified. The petitioner showed cause before the Deputy Inspector-General of Police on 15 August 1954. So far as the charges relating to neglect of duty was concerned, he alleged that these had already been examined and some action taken against him by the Superintendent of Police and that further action in respect of those specific instances of neglect of duty would amount to double punishment. As regards the charge relating to misconduct he denied the allegations saying that the charge was based on the uncorroborated testimony of a village tout and a daffadar and that he should be given an opportunity of cross-examining them before this charge could be said to have been established. On receipt of his representation the Deputy Inspector-General of Police passed the following order:
I have carefully gone through the representation of the probationary sub-inspector. His argument that he has already been punished by the Superintendent of Police for specific instances of bad work does not help him very much since all these instances during the period of probation have to be taken together in considering his merits for confirmation or otherwise. The sub-inspector has already had long enough of chance to work under different Superintendents of Police though in one district, but he has not been able to procure a good chit from anyone. He has also been adversely reported against after the representation dealt with herein was submitted. It is therefore no good retaining him further in service. He be discharged from the date on which this order is served on him.
(Sd.) R.C. Dash,
Deputy Inspector-General of Police
Southern Range, Orissa, Cuttack.'
In the actual order of discharge, dated 11 December 1954, as already pointed out, it was clearly stated that the discharge was based on 'unsatisfactory work and conduct.'
3. From the foregoing facts it is clear that no regular enquiry was held into the two specific instances of misconduct alleged against the petitioner in the original charge, one dealing with acceptance of illegal gratification and another with his presence at a math on 20 March 1953. He had denied these allegations and requested the Deputy Inspector-General of Police to give him an opportunity to cross-examine the two witnesses on whose statements they were based. No such opportunity was given. It does not appear that a regular enquiry was held under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. It is also admitted that no formal notice as required under Article 311(2) of the Constitution was served on him, after coming to a rending about the truth or otherwise of the charges, calling upon him to show cause why he may not be discharged from service.
4. From the affidavit filed by the Deputy Inspector-General of Police and the submissions made by the Advocate-General on behalf of the Government it appears that the Government's contention is that where a probationary officer is discharged for upsets factory work during the period of his probation, it is not necessary to hold a regular enquiry under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, or to come to a finding about the truth or otherwise of the allegations or to issue a notice under Article 311(2) of the Constitution. It was urged that if the authority concerned after a review of the work of the officer during the period of his probation considers that he is unfit to be confirmed, he is entitled to discharge him. In support of his argument reliance was placed on the explanation to Rule 49 and Rule 55(B) of the aforesaid rules.
5. The question whether a probationer can be discharged during the period of his probation without a formal proceeding as contemplated by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and without the issue of a notice under Article 311(2) of the Constitution has been examined in several decisions of the various High Courts and there has been a conflict of opinion on the subject. But the recent pronouncement of the Supreme Court in Parshotam Lal Dhingra v. Union of India1958 -I L.L.J. 544 has set the matter at rest. The majority of the Judges of the Supreme Court have held that ordinarily mere discharge of a public servant during the period of the probation may not, by itself, amount to ' punishment' so as to attract the operation of Article 311(2) and that the motive which operated on the mind of the competent authority in discharging the probationer from service is wholly irrelevant. But there may be circumstances where the discharge even of a probationer may amount to punishment. I may quote the following passage:
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 requirement of Article 311 must be complied with.
It was observed that the termination of the service of the public servant in such circumstances may involve evil consequences to him, leaving an indelible stigma affecting his future career. To determine whether the discharge of a public servant amounts to punishment or not, their lordships laid down the following two important tests, namely:
(1) whether the servant has a right to the post or rank, or
(2) whether he has been visited with the evil consequences of the kind hereinbefore referred to.
It is true that a probationer has no lien or right to his post, but if he is discharged on the ground of ' unsatisfactory work and conduct' he is undoubtedly visited with evil consequences leaving an 'indelible stigma on him affecting his future career.'
6. In the instant case, the aforesaid observations of the Supreme Court apply with full force. Apart from instances of general inefficiency in service there was a specific charge of corruption framed against the petitioner and in the final order of discharge it was clearly stated that the discharge was due to unsatisfactory conduct also. There seems no doubt that the Deputy Inspector General of Police took into consideration the allegations of corruption before deciding to discharge the petitioner. He refused to give the petitioner an opportunity to cross-examine the witnesses on whose statements the allegations of misconduct were made and by discharging him from service in the manner mentioned above he has put an indelible stigma which may affect the petitioner's future career. He should therefore have held a regular enquiry under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and also complied with the requirements of Article 311(2) of the Constitution.
7. For these reasons I would allow this petition and declare the order, dated 11 December 1954, of the Deputy Inspector-General of Police, Orissa, Southern Range, discharging the petitioner from service, to be invalid and inoperative. The proceeding against the petitioner shall be restored to the stage at which it was prior to the passing of the order of discharge, and disposed of according to law by the appropriate authority.
The petition is allowed with costs. Hearing fee Rs. 100.
8. I agree.