1. A Constable in Delhi Police has assailed an order passed by the respondents on 26.7.2004, terminating his service under Rule 5 (1) of Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as 'Temporary Rules'). Also assailed is an order passed on 29.5.2006, whereby representation against termination has been turned down.
2. Applicant was appointed as a Constable in Delhi Police on 17.1.2003.
While performing his duty, after completion of training, applicant was involved in a criminal case FIR No. 263/2004, under Section 376 of IPC.An order passed by the respondents dispensed with the services of applicant on termination. Meanwhile, the Additional Session Judge acquitted applicant on 14.12.2005 of the charges, as prosecution has failed to prove the charge against him. A representation preferred against termination was turned down on the ground that acquittal of applicant in criminal case was not honourable and as applicant had indulged in criminal activities, he has no right to be retained in service.
3. Shri Shyam Babu, learned Counsel appearing for applicant contended that the order passed by respondents resorting to Temporary Rules is not in accordance with law. According to him Rule 5 (e) of the Delhi Police (Appointment and Recruitment) Rules, 1980 (hereinafter referred to as the Rules) is ultra vires, as applicant was appointed against a permanent post and accordingly on probation he cannot be treated to be appointed on temporary basis and as he was not appointed temporarily against a temporary post, Temporary Rules would have no applicability.
4. Learned Counsel would further contend that applicant was issued certificate of appointment under Section 13 of the Delhi Police Act, 1978 as well as under Rule 21 of the Rules where there is no reference to the temporary service or temporary post.
5. Shri Shyam Babu has relied upon a decision of the Apex Court in Praduman Kumar Jain v. Union of India and Anr. 1994 SCC (L&S) 1149, to contend that a person appointed in a substantive capacity on a permanent post on probation for an indefinite period cannot be held to be holder of a temporary post.
6. Shri Shyam Babu has also relied upon the decision of the High Court of Delhi in Dr. N.G. Kulkarni v. Union of India , to contend that a probationer remains a probationer till he is confirmed, whereas Rule 5 (1) of the Temporary Rules has applicability to a temporary government servant.
7. Second leg of argument of Shri Shyam Babu is that the order of termination though defined in simple term by an innocuous order, yet it is founded on a specific act of misconduct of applicant of his involvement in criminal case and as he has been acquitted by the trial court on merits, the competent authority without holding an enquiry and without resorting to Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980, could not have resorted to termination, as Article 311 (2) of the Constitution of India also applies to a temporary government servant and in this view of the matter learned Counsel has relied upon the decision of the Apex Court in Chandra Prakash Shahi v.State of UP .
8. Learned Counsel would contend that applicant's services have been dispensed with and if veil is lifted the attending circumstances do indicate that it is founded on the misconduct of applicant. As his erstwhile service was satisfactory, deprivation of reasonable opportunity to show cause is in violation of the principles of natural justice.
9. On the other hand, Mrs. Rashmi Chopra, learned Counsel appearing for respondents vehemently opposed the contentions and stated that applicant was appointed through his appointment letter as a temporary Constable and as such Temporary Rules are applicable to him. It is also stated that certificate of appointment issued was not for a regular/substantive post but was for a temporary post of Constable.
10. Learned Counsel would contend that Rule 5 (e) of the Rules is intra vires, as temporary Constables are appointed on probation and as per the terms of appointment letter their services can be dispensed with under Temporary Rules and resort to conditions of service is permissible in law.
11. Learned Counsel of respondents would contend that it is the discretion of the appointing authority to dispense with the services of a temporary government servant on account of his unsatisfactory performance and involvement in a criminal case. His consequent acquittal, which is on hostility of witnesses, is only a motive and not foundation of the order. The order, terminating the services of applicant is non-stigmatic.
12. Learned Counsel would rely upon the following decisions of the Apex Court to distinguish her plea:Dhananjay v. Chief Executive Officer, Zilla Parishad, Jalna .Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr.State of U.P. v. Bhoop Singh Verma 13. We have carefully considered the rival contentions of the parties and perused the material on record.In Baleshwar Dass v. State of U.P. , the following observation, as to the definition of substantive capacity and appointment thereof, has been made: 31. What, in the context, is a substantive capacity vis-a-vis an appointment to a post? In our view, the emphasis imported by the adjective "substantive" is that a thing is substantive if it is "an essential part or constituent or relating to what is essential".
(Black's Legal Dictionary, 4th Edn. p. 1597.) We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive.
Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period holds it on probation subject to confirmation.D. Ganesh Rao Patnaik v. State of Jharkhand 2005 SCC (L&S) 1171, clearly ruled that a cadre for direct recruit can include even temporary post.
16. Having regard to the above, Temporary Rules in Rule 2 (d) defines temporary service as service of a temporary government servant in a temporary post or officiating service in a permanent post. Rule 5 (1) allows termination of a temporary government servant at any time by a notice in writing or pay in lieu thereof.
17. Government of India, Ministry of Home Affairs, vide OM No.4/10/66-Estt (C) dated 26.8.1967, when a question had been put to Ministry of Law as to applicability of Rule 5 in case of a probationer, decided that in view of the specific conditions regarding termination of service without any notice at the end of the period of probation where such a provision has specifically been made in the letter of appointment it would be desirable to terminate the services of a probationer in terms of letter of appointment and not under Rule 5 (1) of the Temporary Rules.
18. Rule 5 (e) (iii) of the Rules defines probation as a period of trial of a person appointed temporarily or in an officiating capacity against a temporary or permanent post. Rule 4 (ii) of the Rules defines substantive appointment as power to confirm the officers of subordinate ranks appointed temporarily or on probation in appointing authority.
19. Rule 5 (e) of the Rules provides on direct appointment of subordinates initially on temporary basis but on probation. It further provides that on probation service is liable to be terminated without assigning any reason and only after successful completion of the period of probation, subject to availability of permanent post, one has to be confirmed in police.
20. Having regard to the above rule position, we have scanned through the record and find that applicant had been appointed as a temporary Constable, though no individual appointment letter is issued but an order passed on 6.3.2003 with a list of number of Constables shown their appointment to be as temporary Constables with a condition that the services are liable to be terminated as per the provisions of Rule 5 of the Temporary Rules. Though they are appointed under Section 12 (b) of the Delhi Police Act, 1978, yet governed by the provisions of Temporary Rules ibid.
21. In the light of the above, what is ruled by the Apex Court in Baleshwar Dass (supra) is that substantive capacity referred in which a person holds the post and not necessarily to the nature and character of the post. However, when a person holds a post on probation subject to confirmation this would not be an appointment on substantive basis till one is confirmed.
22. High Court of Delhi while dealing with the case of Dr. N.G.Kulkarni (supra) held that a probationer remains a probationer till he is confirmed. He cannot be a temporary government servant. The decision of the Apex Court in Ganesh Rao Patnaik (supra), where a temporary post is a part of cadre for direct recruitment and the fact that in the letter of appointment of applicant he was appointed on temporary basis with clear applicability of Temporary Rules to which he had agreed to.
Rule 5 (e) of the Rules clearly stipulates that all appointments to be temporary where there has been applicability of Temporary Rules. The contention put-forth that Rule 5 (e) of the Rules ibid whereby the post is permanent, no temporary officiation can be ordered for appointment of a Constable, Rule 5 (e) clearly stipulates that on temporary appointment and on successful completion of the probation period the confirmation, i.e., appointment to substantive post would not be made till a permanent post is made available, meaning thereby that the initial appointment on notifying the post there cannot be a legal presumption in law that these posts are permanent. Accordingly, when applicant has not succeeded in establishing that he has been appointed on a permanent post and the implication of Rules clearly indicates that appointment was on temporary basis against the post, which is temporary and on successful completion of probation, on availability of permanent post the incumbent would be substantively appointed. Baleshwar Dass (supra) would figure this category with an exception that where the post is not substantive, probation has been provided.
23. Applicability of Temporary Rules is service of temporary government servant to a temporary post or officiating service on a permanent basis by virtue of probation even deeming this post to be a permanent post, yet applicant is on probation is only officiating against this post and would not be confirmed till he successfully completes the probation period, applicability of Temporary Rules, which does not specifically exclude its applicability to the probationers Government of India's decision clearly stipulates that when letter of appointment shows termination as per Rule 5 (1) of the Temporary Rules and probation part has not been satisfied, Rule 5 (1) would have applicability.
24. Moreover, from the ratio decidendi developed what has been held and approved by implication is that in case of temporary employee probation and also termination under Rule 5 (1) we find from Dhananjay's case (supra) that the petitioner therein was appointed temporarily, Rule 5 (1) when was resorted to has been approved.
25. In the above view of the matter the decision in Dr. L.G. Kulkarni (supra) would have no application in the light of Rule 5 (e) of the Rules and as implication of Temporary Rules has not been considered, including the decision of the Government as to the applicability of Temporary Rules to the probationer and also keeping in light the terms of appointment letter case is distinguishable.
26. Moreover, when Baleshwar Dass (supra) is applicable to the facts and circumstances would hold the field. Hence, we reject the first contention of applicant, as we find that Rule 5 (e) of the Rules as intra vires.
27. The next ground raised by applicant's counsel is that the order of termination is innocuous but on lifting the veil would be a stigmatic order, which is founded on a specific act of misconduct of applicant of involvement in a criminal case, where on acquittal any stigma attached would be obliterated and applicant is liable to be inducted in service, cannot be countenanced. Respondents being employer in a case of temporary government servant or probationer are at liberty to resort to conditions of service to dispense with the services of a temporary employee or a probationer on his unsatisfactory performance without resorting to any enquiry.
28. In the case of applicant, though he was involved in a criminal case and was acquitted later on, yet his conduct as performance has been the motive of respondents to dispense with his services, which cannot be found fault with, as in Dhananjay's case (supra) exactly in similar circumstances when on account of involvement in a criminal case petitioner was terminated under Rule 5 (1) and on his subsequent acquittal the same was not weighed in his favour, the following observations have been made: 5 Para 2 of the impugned order of termination of services makes a mention of the fact that the appellant was suspended. The learned Counsel for the appellant, pointing out this paragraph, submitted that it would cast stigma on the appellant and it would adversely affect his prospects. The High Court, in dismissing the writ petition, relied on the decision of this Court in the case of Bihari Lal afore-mentioned. Para 5 of the said judgment reads thus: 5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control & Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5 (1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money.
6. If we look to the paragraph extracted above, it becomes clear that the facts of that case are almost similar to the facts of the present case. Although a distinction was sought to be made to contend that that judgement has no application to the facts of the present case, we are unable to agree with the submission. Merely because the appellant was kept under suspension, that, by itself, is not indicative that the respondent had intended from the beginning to get rid of the services of the appellant by holding an enquiry.
It is not the case of the appellant that in spite of the fact that his services were needed, the order of termination of services was passed. Even though the appellant was acquitted in the criminal case launched against him on the basis of the complaint made by the respondent, is also not a factor to indicate that the respondent wanted to take action against the appellant on his misconduct to remove him from service.
29. Moreover, in Pavanendra Narayan Verma (supra) the Apex Court clearly ruled as follows: 32. We are also not prepared to hold that the enquiry held prior to order of termination turned this otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. A charge sheet merely details the allegations so that the employee may deal with them effectively.
The enquiry report in this case found nothing more against the appellant than an inability to meet the requirements for the post.
None of the three factors catalogued above for holding that the termination was in substance punitive exists here.
30. In Municipal Committee (supra) also the above decision has been taken note of and the following observations have been made: 17. As noticed above in the instant case, the respondent having been appointed as a probationer and his working having been found not to the satisfaction of the employer, it was open to the management to terminate his services. Assuming that there was an incident of misconduct or incompetency prior to his discharge from service, the same cannot be ipso facto be termed as misconduct requiring an inquiry. It may be a ground for the employer's assessment of the workman's efficiency and efficacy to retain him in service, unless, of course, the workman is able to satisfy that the management for reasons other than efficiency wanted to remove him from services by exercising its power of discharge.
18. On the facts of this case, we are satisfied that the incident referred to in the evidence of the management's witness does not give rise to a conclusion that the discharge of the respondent was a colourable exercise, with a collateral intention of avoiding an inquiry. Nor does the order of discharge carry any stigma. Hence, the Labour Court as well as the Appellate bench of the High Court have erred in coming to a contra conclusion.
31. In H.F. Sangati (supra) in a case of Judicial Officers, following observations have been made: 10. In our opinion the impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsifs. It is pertinent to note that Rule 6 contemplates a probationer being discharged from service on one or more of the following grounds : (i) in terms of a condition imposed by the rules, (ii) in terms of the order of appointment, or (iii) on account of unsuitability of the appointee for the service or post. Sub-rule (2) of Rule 6 requires an order discharging the probationer to indicate the grounds for the discharge. It also provides that such indicating of the grounds for the discharge in the order would not require any formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 being held. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice much less to be preceded by any formal proceedings of enquiry before making the order.
32. Having regard to the above, we are of the view that the services of applicant have been dispensed with on the ground of his unsatisfactory performance and as a right accrued in favour of respondents within the terms and conditions to dispense with his service. The subsequent acquittal, of which involvement is a motive, is not the foundation of termination. Moreover, applying the test laid down in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta , an order of termination is not stigmatic, as nothing has been alleged against applicant in the order and no Annexure referred in the order would indicate any stigma attached to applicant or imputation alleged against him. Being a simple order, not being stigmatic, simple order of termination cannot be found fault with.
33. As it is trite that in case of a termination simpliciter neither Article 311 (2) would have application nor principles of natural justice. The order passed on representation is in the context of the submissions made by applicant, clearly demonstrates that the act of applicant was found to be adverse in his performance as a probationer and once right has been accorded to the respondents to dispense with the service of a probationer we cannot interfere for want of mala fides or arbitrariness in the action.
34. In the result, for the foregoing reasons, OA is found bereft of merit and is accordingly dismissed. No costs.