Vikram Virendra v. 1. State of Jharkhand 2. The Director General-cum-Inspector General of Police, Jharkhand, having its
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A. No. 367 of 2023 Vikram Virendra ...… Appellant Versus 1. State of Jharkhand 2. The Director General-cum-Inspector General of Police, Jharkhand, having its office at Project Building Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi 3. The Deputy Inspector General of Police, Jharkhand Armed Police (JAP) at Ranchi having its office at Project Building Dhurwa, P.O. & P.S. Dhurwa District- Ranchi 4. The Commandant, Jharkhand Armed Police-8, Lesliganj, P.O. & P.S. Lesliganj, District- Palamau (Jharkhand) …. ... Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Appellant For the Respondents : Mr. Anil Kumar Ganjhu, Advocate Ms. Priyanka Kumari, Advocate : Mr. Manish Mishra, GP-V 06th February 2024 Per, A.K. Rai, J. I.A. No. 7637 of 2023 An interlocutory application under section 5 of the Limitation Act has been filed seeking condonation of delay of 25 days in preferring the present appeal. 2. We are satisfied with the cause shown by the appellant in this application and, therefore, the delay of 25 days in preferring this Letters Patent Appeal is condoned. 3. I.A. No. 7637 of 2023 is, accordingly, allowed. L.P.A. No. 367 of 2023 4. This Letters Patent Appeal has been preferred against the order dated 08.05.2023 passed in W.P. (S) No. 455 of 2019, whereby the order of termination dated 17.03.2007 has not been inferred with. 5. The case of the appellant in nutshell is that he was appointed as Constable (Police 543) on 22.03.2005 and he joined at Jharkhand Armed 2 LPA No. 367 of 2023 Police-4, HQ Bokaro. In the month of June 2005 the appellant was sent for his basic training in Punjab and after his successful completion of training for 6 months, he joined the service at JAP-4, HQ Bokaro. On 21.03.2006, the appellant left the Headquarter Bokaro on two days’ compensatory leave and he was to join on 24.03.2006 (afternoon) but on account of family tension in connection with partition of property amongst the family member, the appellant could not report the duty at Headquarter on 24.03.2006. However, when in the month of May 2007, he reported for his duty at JAP- 8, Lesliganj, Palamau, his joining was not accepted and was orally informed that he was dismissed from the service. 6. The appellant was dismissed from service vide order No. 430/2007 dated 17.03.2007 passed by the Commandant, JAP-8 (Respondent No.4) with effect from 24.03.2006 and this order was communicated to the
Facts
appellant in the year 2010. Thereafter, the appellant approached High Court by filing writ petition being W.P.(S) No. 6019 of 2010 and vide order dated 31.01.2011, the writ Court directed the authorities to decide the appeal, if preferred by the appellant. The appellant preferred an appeal before DIG of Police, JAP, Ranchi (respondent No.3) but the same was dismissed vide memo No. 1395 dated 15.09.2011. The appellate order was assailed by the appellant by filing memorial under Rule 853 of the Jharkhand Police Manual but the same was also dismissed vide memo No. 164 dated 24.05.2018. After exhausting aforesaid remedies, the appellant filed writ petition before High Court being W.P.(S) No. 455 of 2019 challenging his dismissal from the service. 7. The learned counsel for the appellant pointed out that without adhering to principles of natural justice the appellant was dismissed from the service and the same has been communicated to the appellant in the year 2010. It is further contended that the appellant approached Hon’ble High Court by filing writ petition bearing W.P.(S) No. 6019 of 2010 in which Hon’ble High Court has given liberty to the appellant to file an appeal and thereafter the appellant approached the appellate authority as well as revisional authority but his plea was not considered by both the authorities. Thereafter, again the appellant filed a writ petition bearing W.P.(S) No. 455 3 LPA No. 367 of 2023 of 2019 before High Court which was also dismissed vide impugned order dated 08.05.2023 against which, the appellant filed the present L.P.A. 8.
Legal Reasoning
“10. It was held by this Court in Dipti Prakash Banerjee case [(1999) 3 SCC 60 : 1999 SCC (L&S) 596] that whether an order of termination of a probationer can be said to be punitive or not depends on whether the allegations which are the cause of the termination are the motive or foundation. It was observed that if findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, a simple order of termination is to be treated as founded on the allegations and would be bad, but if the enquiry was not held, and no findings were arrived at and the employer was not inclined to conduct an enquiry, but, at the same time, he did not want to continue the employee's services, it would only be a case of motive and the order of termination of the employee would not be bad. 46. As has also been held in some of the cases cited before us, if a finding against a probationer is arrived at behind his back on the basis of the enquiry conducted into the allegations made against him/her and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside. On the other hand, if no enquiry was held or contemplated and the allegations were merely a motive for the passing of an order of discharge of a probationer without giving him a hearing, the same would be valid. However, the latter view is not attracted to the facts of this case.” 17. In view of above legal proposition, now it is settled law that in case of punitive or stigmatic termination it is mandatory to conduct an enquiry following the procedure and an opportunity to be heard is to be given to the delinquent and failure to do so may make such termination/discharge illegal. However, where the termination is focused on evaluating and employee’s suitability for a specific job, the termination is considered termination simpliciter and not punitive one. 18. Before proceeding further, it is required to mention the provision enshrined under Rule 668 of the Jharkhand Police Manual. Removal or reversion of officers appointed “668. direct or promoted on probation.- The following rules shall govern first appointments and the promotion of police and ministerial officers as detailed in Appendix 41:- (a) All officers shall in the first instance be appointed or promoted on probation. Where the period of probation is not otherwise provided for in the rules it shall be for a period of two years in the case of executive officers and one year in the case of ministerial officers. The authority authorized to make such appointment or promotion, may 6 LPA No. 367 of 2023 at any time during such probationary period and without the formalities laid down in rule 828, remove an executive officer directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfit for such appointment or promotion. Similarly probationary period may also be extended without any show cause. No appeal shall lie in such cases. (b) Executive Officers appointed or promoted in other than permanent vacancies are also liable to removal or reversion in the manner indicated in clause (a) above.” 19. We are of the considered view that as per Rule 668 of Jharkhand Police Manual, the competent authority at any time may remove any probationer officer who fails to fulfill the terms and conditions of his/her appointment or shown himself/herself unfit for such promotion/ appointment. We have no doubt to further hold that the terms and conditions of joining the service vide force order no. 54/2005 which is in-conformity with the aforesaid Rules and clearly states that during probation period if character and conduct of any officer was found unsatisfactory and not up to the mark, the officer would be dismissed from the service and none of his claim would be entertained and services would be terminated without giving any reason or cause. 20. The Police force is a disciplined force and to harness the potential of police force discipline ought to be maintained in the organization and it has to be maintained. The appellant undoubtedly absented for more than one year without intimation to authority and the appellant was on probation at that point of time is not disputed at all in the present case. 21. Recently, the Hon’ble Apex Court in the case of The State of Punjab and others versus Jaswant Singh reported in (2023) 9 SCC 150 has decided the fate of Probationer constable with the Punjab Police, who remained absent without intimation for a long time, resulting into the discharge from the services. The Apex Court has further held that the order of discharge is a simpliciter discharge of a probationer constable and the order of discharge is in consonance with the law and the rules. The relevant para of the aforesaid judgement is quoted hereunder – “21. In view of the principles as reiterated in various judgments by this Court, if we examine the facts of the case in hand leading to the order of discharge, then it is crystal clear that the respondent-plaintiff was appointed as a constable and joined the duties on 12-11-1989 on probation. During 7 LPA No. 367 of 2023 training and lacks sense of responsibility, probation, while he was on training, he along with other trainee constables was deputed for law and order duty in Amritsar District on 24-11-1990. The respondent-plaintiff and other recruits were relieved from the said duty and reported back at the Training Centre, except the respondent-plaintiff, who remained on prolonged absence without any intimation to the Training Centre. The SP, Training Centre, vide Memorandum dated 21-2-1991, made a recommendation to SSP that the respondent-plaintiff had not shown any interest in the further recommending that he is unlikely to prove himself as a good and efficient police officer, hence, he may be discharged under Rule 12.21 of PPR. From perusal of the said Rule, it is apparent that in case a probationary constable is found unlikely to prove an efficient police officer, he may be discharged by the Senior Superintendent of Police at any time within three years from the date of enrolment. The SSP relying upon the recommendation of the supervising officer (SP, Training Centre) formed an opinion that the probationary constable is found unlikely to prove an efficient police officer owing to his demeanour as reported and discussed hereinabove. 22. In our considered view, all the three courts misconstrued Rule 12.21 of PPR and decreed the suit filed by the respondent-plaintiff. Looking to the contents of the order of discharge, in the considered opinion of this Court, there is no foundation of misconduct alleged in the order and it is an order of simpliciter discharge of a probationer constable. The in Ratnesh Kumar Choudhary [Ratnesh Kumar judgment Choudhary v. Indira Gandhi Institute of Medical Sciences, (2015) 15 SCC 151 : (2016) 2 SCC (L&S) 173] relied upon by the respondent is of no help for the simple reason that in that case, the initial appointment was alleged to be illegal based on a vigilance report which was on record. Thereafter, notice was issued on the anvil of the said vigilance report which contained serious allegations and in the said peculiar situation, the Court found that the termination was not simpliciter, but it was punitive. 23. Similarly, in Amar Kumar [Amar Kumar v. State of Bihar, (2023) 9 SCC 160], wherein the Court found that the appellant do commotion/agitation/protest and also raised slogans by spreading false rumours in connection with the death of one of the trainees, which was the foundation to pass the order for termination. Thus, in the said case, the Court was of the opinion that the order of termination cannot be simpliciter. In both the cases as referred to above, the allegation of serious misconduct is common, unlike in the instant case, wherein, the foundation of discharge is not on any serious allegation or act of misconduct. The discharge order was passed on the recommendation of the supervisory authority concerned of the Training Centre due to prolonged absence from training without any the probationer constable has no interest in training, and no sense of responsibility, hence, he cannot prove himself a good, efficient police officer. In view of above discussion, both the referred cases are distinguishable on facts.” intimation. The authority instigated therein found that had to 8 LPA No. 367 of 2023 22. Now coming to the present case, there was no complaint against the appellant by the third person or any other officer, therefore, there was no necessity to hold the enquiry to find out the correctness of the allegations levelled against the appellant. Admittedly, the appellant had left the Headquarter with leave for 2 days and remained absent for more than one year, therefore, it is a sound reason to remove him. Since, no enquiry was required or ever contemplated, therefore, impugned order of removal cannot be set aside merely because the appellant was not served with show cause notice and was not heard and that too when the appellant’s plea was declined by authorities exercising appellate and memorial/ revisional jurisdiction. 23. In the backdrop of above stated legal proposition and the factual matrix of the present case, no interference is required with the order dated 08.05.2023 passed by the learned writ Court in W.P.(S) No. 455 of 2019. 24. Accordingly, this Letters Patent Appeal is dismissed. (Shree Chandrashekhar, A.C.J.) (Arun Kumar Rai, J.) Pramanik/
Arguments
Learned counsel for the appellant tried to contend that it is punitive termination whereas it is mandatory to conduct an enquiry by following the procedure and an opportunity to be heard has to be given to the appellant but no such opportunity was given to the appellant. 9. Per contra, the learned counsel for the respondents submitted that, admittedly, the appellant was in probation and has violated the terms and conditions of his appointment and, therefore, by invoking Rule 668 of the Jharkhand Police Manual, the appellant was discharged from the service on account of non suitability/unfitness to a disciplined force and as such, no enquiry is required before the discharge of the appellant. It has been also pointed out that the appellant got appointed as Constable vide Advertisement No. 01/ 2004 and terms and conditions of his joining (vide force order No. 54/ 2005) inter alia “In probation period if his character and conduct was found unsatisfactory and not up to the mark, he would be dismissed from service and none of his claim would be entertained and his services would be terminated without giving any reason or cause.” 10. It is contended that the absence of the appellant for more than a year, that too without intimation to Headquarters, clearly reflects the unsatisfactory conduct of the appellant, hence the appellant cannot be allowed to challenge his termination as per terms and conditions of the appointment. 11. Learned counsel further pointed out that the appellant agitated the issue of his termination from service before appellate as well as revisional authorities, therefore, it cannot be said that the appellant was not given the opportunity of being heard. 12. Learned counsel for the respondent further submitted that the office order dated 17.03.2007 of Commandant, JAP-8, Lesliganj, Palamau discloses that a letter through memo no. 891 dated 28.07.2006 was sent to the appellant for his presence at the place of work, but no response was given by the appellant. Further, it is submitted that through Memo no. 1113 dated 26.08.2006, the Officer-in-Charge, Mehrama, District- Godda was 4 LPA No. 367 of 2023 asked to enquire and get secure the presence of the appellant at his work place, but the appellant remained absent. 13. We have given thoughtful consideration to submission of both the sides and perused the record. It is undisputed fact that the appellant was appointed as Constable on 22.03.2005 and after getting training during probation, he left the Headquarter Bokaro on 21.03.2006 for two days leave but admittedly for more than a year, he did not report to Headquarter. 14. It is evident from Annexure-1 to instant appeal that by the office order of Commandant, JAP-8, Lesliganj, Palamau dated 17.03.2007 the respondent had sent a letter through Memo no. 891 dated 28.07.2006 for presence of the appellant at the place of work but there was no response by the appellant. Further, through Memo no. 1113 dated 26.08.2006 Officer-in- Charge, Mehrama, District- Godda was asked to enquire and get secure the presence of the appellant at his work place but the appellant remained absent from his duty for about one year without intimation, as such the appellant who was on probation dismissed from the service. 15. After getting liberty from the writ Court in W.P.(S) No. 6019 of 2010 filed against the order of dismissal dated 17.03.2007, the appellant approached the appellate authority for setting aside/ quashing of dismissal order dated 17.03.2007 but appellate authority dismissed the appeal on premise that the appellant has accepted the terms and conditions of appointment that on account of unsatisfactory conduct/work during probation, services would be terminated without any show cause. Against the appellate order, the appellant filed memorial/revision but the same was also dismissed on the ground that there would be adverse impact on other police personnel if despite unsatisfactory work/conduct of probationer he would be kept in the service. 16. Now, we have to examine whether it is a case of simpliciter termination or punitive termination. The Hon’ble Apex Court in the case of Union of India v. Mahaveer C. Singhvi reported in (2010) 8 SCC 220 has held that if probationer is discharged pursuant to the finding arrived at in an enquiry conducted behind his back, to look into the allegations made against him, then such discharge order would be bad, if such probationer was not put on notice and was not heard. However, if competent authority has not 5 LPA No. 367 of 2023 contemplated or held any enquiry to look into the allegations of alleged misconduct then discharge of probationer without notice and hearing would be legal and valid although motive of discharge is alleged misconduct. The reference made in Para 10 and 46 is quoted hereunder: