Surinder Pal Kaur W/O Ranjeet Singh Vs. the State of Punjab and ors. - Court Judgment

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- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 4, vide order dated 15.9.1994, annexure p-2. the petitioner received five commendation certificates and her case for promotion to the post of constable was recommended by the deputy inspector general of police, ludhiana range on 30.9.1994, annexure p-3. 3. on 16.4.1996, while the petitioner was posted at dpo security, she became un- well and was advised 3 days rest by a doctor and, therefore, applied for three days leave, which was declined. 60, while deciding a controversy, as to whether the order of termination was founded on misconduct and was stigmatic, held as follows :if findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. but if the enquiry was not held, 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 against whom there were complaints, it would only be a case of motive and the order would not be bad. if the form and language of the so-called order of termination simplicter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. 5/t who had come on temporary duty in dpo security, police station city, khanna, was ordered to be transferred to city police station because her behaviour was not good.rajive bhalla, j.1. prayer in the writ petition, filed under articles 226/227 of the constitution of india, by the petitioner is for quashing the order dated 17.4.1996, annexure p-8, as also for the issuance of a writ of certiorari quashing the orders dated 19.2.1998 and 2.9.1998. annexures p-12 and p-13 respectively. another prayer, made in the writ petition, is to direct the respondents to promote the petitioner as a constable with effect from the date when her junior special police officers were promoted.2. the petitioner was appointed as special police officer in ludhiana district by the senior superintendent of police, ludhiana, vide order dated 23.11.1993. she was, however, discharged on 29.1.1994 and thereafter appointed again as s.p.o. by respondent no. 4, vide order dated 15.9.1994, annexure p-2. the petitioner received five commendation certificates and her case for promotion to the post of constable was recommended by the deputy inspector general of police, ludhiana range on 30.9.1994, annexure p-3.3. on 16.4.1996, while the petitioner was posted at dpo security, she became un- well and was advised 3 days rest by a doctor and, therefore, applied for three days leave, which was declined. she was transferred from dpo security to police station city, khanna. one sukhdev singh, c1 relieved her at 3 p.m. (annexure p-6). the petitioner joined her new place of posting at 3 p.m. on the same day. thereafter, sukhdev singh submitted a complaint against the petitioner levelling allegations of mis-behaviour and man-handling. in the said complaint, it was stated that the petitioner, a lady constable, caught hold of him, started dragging him after holding his belt, bit him on his shoulder and left the spot after abusing and threatening him that she would report against him to the deputy inspector general of police.4. counsel for the petitioner contends that the impugned order, annexure p-8, dated 17.4.1996, as also the orders rejecting her representation are illegal, arbitrary, violative of articles 14 and 16 of the constitution of india, as also violative of the principles of natural justice. the impugned order is stigmatic and punitive, passed as a measure of punishment for alleged misconduct/misbehaviour and, therefore, could have been passed only after serving a show cause notice, holding an inquiry and affording an opportunity to the petitioner to rebut the allegations levelled against her.5. it is further contended that the impugned order is not one of discharge simpliciter. it is not based upon an assessment of the work and conduct of the petitioner. the impugned order specifically refers to and is founded upon an alleged mis-behaviour and mis-conduct. the foundation of the order being the alleged misconduct, of the petitioner, the impugned order is liable to be set aside.6. counsel for the petitioner has placed reliance upon two judgments of this court rendered in c.w.p. no. 17572 of 1997, mohan lal v. state of punjab and anr., decided on 19.1.1999, annexure p-15 and r.s.a. no. 798 of 2001, stale of punjab and ors. v. manjit singh, decided on 6.3.2001. it is contended that the petitioner's case is squarely covered by the aforementioned judgments. in the aforementioned judgments, it has been held that in case an order of discharge is punitive and stigmatic i.e. based upon allegations of misconduct, which have been arrived at, without holding an inquiry, the order of discharge would be violative of the principles of natural justice.7. it is further contended that the state of punjab preferred an s.l.p. no. 10717 of 2001, against the judgment passed in r.s.a. no. 798 of 2001, which has been dismissed by the hon'ble supreme court, vide its order dated 16.7.2001.8. counsel for the respondents, on the other hand, while not denying the facts of the case, contends that the petitioner was appointed as a spo under standing order endst. no. 29322-52/e-3 dated 30.10.1998, issued by the director general of police, punjab. paragraph 7 of the said order states that an spo shall be paid daily wages. in para 9 of the said order, it has been mentioned that an spo, whose work and conduct is not found satisfactory, can be discharged at anytime, without issuing any notice. the petitioner has been discharged from service, as her work and conduct was found to be unsatisfactory and merely because her misconduct is referred to in the impugned order, it cannot be said to be stigmatic or punitive in nature. it is further contended that the petitioner was discharged for an act of in-discipline and mis-behaviour, which act forms a part of her work and, therefore, the punishing authority was empowered to take into consideration the misbehaviour and pass the impugned order.9. counsel for the respondents has placed reliance upon a division bench judgment of this court, passed in c.w.p. no. 17571 of 1998, parveen kumar v. state of punjab and ors. to contend that the petitioner, being a daily wager, can be discharged from service at any time, without holding an inquiry, an assessment of the work and conduct cannot be held to be stigmatic or punitive in nature.10. i have heard the counsel for the parties, perused the pleadings, as also the respective judgments, relied upon by the counsel for the parties.11. before i proceed to decide the present controversy, a brief reference of the afore- mentioned judgments, as also other judgments, relevant to the present controversy, would be appropriate.12. the hon'ble supreme court in dipti prakash banerjee v. satyendra nath bose national centre for basic sciences, calcutta and ors. (1999)3 s.c.c. 60, while deciding a controversy, as to whether the order of termination was founded on misconduct and was stigmatic, held as follows :-'if findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. but if the enquiry was not held, 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 against whom there were complaints, it would only be a case of motive and the order would not be bad. similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. in such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid.'13. it is, thus, apparent that in an order of discharge, the court is required to determine whether the alleged misconduct is the foundation or the motive for the order. if the order is founded upon an alleged misconduct, the said order would obviously be punitive and stigmatic. however, if the order, is not founded upon, allegations of misconduct but is passed merely on an assessment of the work and conduct, the said order would not be punitive or stigmatic. the said controversy has also been considered in another judgment of the hon'ble supreme court reported as pavanendra naryana verma v. sanjay gandhi pgi of medical sciences and anr., (2002)1 s.c.c. 520. after taking note of various judgments of the hon'ble supreme court, it was held as follows:-'29. before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. a termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. the decisions cited by the parties and noted by us earlier, also do not hold so. in order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.'14. another judgment of the hon'ble supreme court in mathew p. thomas v. kerala state civil supply corporation limited and ors. 2003(3) s.c.c. 263, after noting the aforementioned judgments, held as under :-'from a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. it may be difficult either to categorize or classify strictly orders of termination simplicter falling in one or the other category, based on misconduct as foundation for passing the order of termination simplicter or on motive on the ground of unsuitability to continue in service. if the form and language of the so-called order of termination simplicter of a probationer clearly indicate that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the background and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. in cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the services of a probationer. in other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. in such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. in that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct.'15. in the light of the principles, laid down by the hon'ble supreme court, while examining the order of discharge, a court is required to scrutinize whether the conclusion, arrived at by the punishing authority, is founded upon allegations of misconduct. in case, the court arrives at a conclusion that the order is founded upon allegations of misconduct, the order would obviously be punitive and stigmatic. thereafter, the court is required to examine whether the order was passed, after affording an opportunity of hearing and/. or the conduct of an inquiry. in case, no show cause notice is issued and/or inquiry conducted, the order, being violative of the principles of natural justice, would not be an order of discharge simpliciter and would, therefore, be liable to be set aside. for the above proposition, reliance has been rightly placed by counsel for the petitioner upon the judgment of a division bench of this court in mohan lal's case (supra) and a judgment of single bench of this court in state of punjab and ors. v. manjit singh' case (supra), against which the s.l.p. filed by the state of punjab, has also been dismissed. in these judgment, the order of discharge was set aside on the ground of its being stigmatic and punitive and had been passed, without issuance of show cause notice and/or conduct of an inquiry. if, however, the order of discharge is not based upon allegations of misconduct but upon an unsatisfactory assessment of the work and conduct of an employee, the said order would neither be stigmatic nor punitive and, thus, being an order of discharge simpliciter, the delinquent employee could be discharged, in accordance with the terms and conditions of appointment.16. counsel for the respondents has relied upon a judgment, rendered by a division bench of this court in parveen kumar's case (supra) to contend that an spo can be discharged from service at any time, as he has the status of a daily wager. the said judgment was based upon an order of discharge simpliciter, the order of discharge was not founded upon any allegation of misconduct and, therefore, it was held that the order was neither punitive nor stigmatic and even if no show cause notice had been issued, the order, having been passed, in accordance with the terms and conditions of appointment, was not liable to be set aside, being an order of discharge simpliciter. the aforementioned judgment is obviously not applicable, where the order of discharge is founded upon an allegation of misconduct and the said order has been passed, without affording an opportunity of hearing/conduct of an inquiry.17. the impugned order, in the present case, reads as follows :'orderlady spo surinder pal kaur no. 5/t who had come on temporary duty in dpo security, police station city, khanna, was ordered to be transferred to city police station because her behaviour was not good. when she was posted in dpo security, she misbehaved and man-handled c-l sukhdev singh no. 82/khanna and for using abusive language is discharged from police department today on 17.4.1996 (fn). the order be registered.'18. a perusal of the above order reveals that the petitioner has been discharged from service, pursuant to specific allegations of mis-behaviour and misconduct, levelled by another police officer. the impugned order specifically accuses the petitioner of mis-behaviour, man-handling of the said officer, as also the use of abusive language. the conclusions, arrived at by the punishing authority, are based upon a complaint filed by a police official.19. the very tenor of the order, the language and the specific allegations levelled therein leave no manner of doubt that a specific misconduct has been attributed to the petitioner. the specific misconduct is the foundation of the order of discharge. the impugned order does not even attempt to camouflage the alleged misconduct/misbehviour by the use of words that the work and conduct of the petitioner was unsatisfactory. it is, thus, apparent that the impugned order is founded upon specific and categoric allegations of misconduct which, the punishing authority accepted as the last word on the matter, without calling upon the petitioner to show cause in response to the allegations of misconduct.20. admittedly, no show cause notice was ever issued to the petitioner and none was served. no inquiry was held to provide an opportunity to the petitioner to rebut the allegations levelled against her. the punishing authority accepted these allegations as the last word on the matter and proceeded to discharge the petitioner, founding its order upon the allegations of misconduct.21. the contention of counsel for the respondents that the petitioner's services, being governed by the standing order, which permits the discharge from service at anytime, whatsoever for unsatisfactory work and conduct, would have been accepted, had the impugned order confined itself to the work and conduct of the petitioner. as the impugned order concludes that the petitioner misconducted herself/misbehaved with another officer, the punishing authority was required to hold an inquiry and on the basis of evidence, led for and against the allegations and, thereafter, arrive at an independent conclusion. in the absence of any such procedure having been adopted, and in view of the settled law, as referred to in the preceding paragraphs, i have no hesitation in holding that the impugned order being founded on an alleged misconduct is not only punitive but also stigmatic. as no show cause notice was ever issued, nor any explanation sought or any inquiry conducted, the impugned order, being violative of the principles of natural justice has to be set aside. merely because the petitioner was an s.p.o. appointed on daily wages, would be no reason to dispense her services on allegations of misconduct, without issuance of a show cause notice or holding of an inquiry.22. in view of what has been stated above, the present writ petition is allowed. order dated 17.4.1996, annexure p-8, as also the order dated 19.2.1998 and 2.9.1998, annexure p-12 and p-13 respectively, are quashed. the respondents are directed to reinstate the petitioner within three months from the date of receipt of a certified copy of this order with all consequential benefits. however, in case the respondents deem it appropriate, they would be at liberty to proceed against the petitioner afresh, in accordance with law.there shall be no order as to costs.