Vijay NaraIn Singh Vs. Supdt. of Police, Bijnore (U.P.) and ors. - Court Judgment

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- [j.s. verma and; yogeshwar dayal, jj.] -- service law — termination — duty of the government to justify its action either by proper pleadings or by producing records — termination declared invalid on account of failure to do so by the state government — u.p. police regulations, reg. 541 — evidence act, 1872, section. 114 ill. (g) -- the appellant was appointed as a constable in the u.p. police force on probation in a clear vacancy in december 1986. the very next day, on december 18, 1990, the appellant was transferred to the police lines. the appellant challenged the termination of his services by filing a writ petition in the allahabad high court. the appellant has expressly asserted that his appointment as a constable was on probation in a clear vacancy. the case has, therefore, to be examined on the basis that the appellant's appointment was on probation in a clear vacancy which was governed by regulation 541 of the u.p. police regulations. admittedly that procedure was not adopted in the present case before terminating the appellant's services. the appellant is to get costs from respondent-state of u.p.j.s. verma and; yogeshwar dayal, jj.1. leave granted. heard on merits.2. the appellant was appointed as a constable in the u.p. police force on probation in a clear vacancy in december 1986. he was then sent for training at the police training school, moradabad in january 1987 and had successfully completed the training course. in december 1990 while the appellant was posted as a constable in police station nangla in district bijnor, a report was made by the station house officer on december 17, 1990 accusing the appellant of certain misconduct. the very next day, on december 18, 1990, the appellant was transferred to the police lines. however, without holding any inquiry, on december 19, 1990, the appellant's services were terminated (annexure b) by giving him one month's salary in lieu of notice. the appellant challenged the termination of his services by filing a writ petition in the allahabad high court. that writ petition has been dismissed by the impugned judgment dated july 20, 1991. hence this appeal by special leave.3. the high court has taken the view that the services of the appellant being merely temporary, there was no infirmity in the termination of his services in this manner. learned counsel for the appellant submitted that the appellant was not appointed merely temporarily but on probation in a clear vacancy and, therefore, the procedure for termination of his services would be governed by regulation 541 of u.p. police regulations; and that the termination having been made without complying with the requirements of regulation 541, it was invalid. in reply, learned counsel for the state merely contended that the appointment of the appellant was not on probation in a clear vacancy but was temporary appointment which was not governed by regulation 541 of the u.p. police regulations. we are satisfied that this appeal has to be allowed.4. the appellant has expressly asserted that his appointment as a constable was on probation in a clear vacancy. on behalf of the state of u.p., there is no denial of this assertion and no material has been produced by the state to indicate that the appellant's appointment was not of this nature. there can be no doubt that the state which is in possession of the entire record was not in a position to show with reference to the record that the factual position was different. the failure of the state government to produce any record in support of its submission is alone sufficient to reject its submission to this effect. the case has, therefore, to be examined on the basis that the appellant's appointment was on probation in a clear vacancy which was governed by regulation 541 of the u.p. police regulations.5. mere perusal of regulation 541 shows that an inquiry is contemplated of the kind mentioned therein before any order of discharge thereunder is made in a case like the present during the period of probation. admittedly that procedure was not adopted in the present case before terminating the appellant's services. the order of termination is, therefore, obviously invalid.6. in the result, the appeal is allowed with costs. consequently, the impugned judgment of the high court is set aside and writ petition filed in the high court is allowed, with consequential benefits. the appellant is to get costs from respondent-state of u.p. the costs are quantified at rs 5000 (rupees five thousand) only.