Dinesh Kumar Vs. Union of India and ors. - Court Judgment

Excerpt:
constitution of india, 1950 - article 226--petitioner challenged order of' dismissal--commandant not empowerd to dismiss--stand taken that petitioner not dismissed but discharged under rule 13 read with appendix 1 and form of enrolment (para 11)--inadvertently dismissed--mentioned instead of discharge--not a case of discharge implicate but founded on certain allegation as in order itself--as it cast stigma on his conduct petitioner should have been afforded reasonable opportunity to explain allegations--impuged order quashed--petitioner re-instated.;the petitioner has been discharged on the ground of misconduct, that, his performance was not up to the mark, he was guided and advised by his superior from time to time, inspire of proper guidance, the constable did not show any improvement and he was rude and in habit of using threatening language. considering his conduct during that period he was unlikely to become an efficient member of the force, he was discharged from service.;it is not a case of discharge implicate but founded on certain allegations as pointed out in the order itself, for which, we are of the view that the petitioner should have been afforded reasonable opportunity to explain the allegations as it cast stigma on his conduct, which has not been done by the department. thereforee, we quash the impugned order and direct the respondent to reinstate the petitioner. - - on his being satisfied that the petitioner was not likely to become an efficient member of the force, he discharged him from service under the above said provisions of rule 13. however, it has been stated inadvertently that the services of the petitioner has been dismissed but in fact he has been discharged and not dismissed from service.p.n. nag, j. (1) the petitioner has challenged the order of dismissal dated 17th june, 1991 on the ground that the comdt. was not empowered to dismiss the petitioner. the stand taken in the counter affidavit by the respondent is that the petitioner has not in fact been dismissed by the comdt. but he was discharged under rule 13 read with appendix i thereto and the form of enrolment (para ii) forming part of it, in which para 4 reads as under: 'you are liable to be discharged during the first two years of your service if .you are not likely to become efficient member of the force.'(2) the power given under this rule and as given to the comdt. is absolute in nature in order to give effect to such discharge. it is not necessary that there should be any charge sheet or show cause notice to be served upon the petitioner. on his being satisfied that the petitioner was not likely to become an efficient member of the force, he discharged him from service under the above said provisions of rule 13. however, it has been stated inadvertently that the services of the petitioner has been dismissed but in fact he has been discharged and not dismissed from service. (3) we have given careful consideration to the matter and are of the opinion that the petitioner has been communicated the order of dismissal. it cannot be considered as an order of discharge, as the operative part of the order refers to it as an order of dismissal. even if it is assumed that it is an order of discharge and not a dismissal as also pointed out by learned counsel for the respondent and also mentioned in earlier part of the order itself, even then we find that the petitioner has been discharged on the ground of misconduct, that his performance was not up to the mark, he was guided and advised by his superior from time to time. inspire of proper guidance, the constable did not show any improvement and he was rude and in habit of using threatening language. considering his conduct during that period he was unlikely to become an efficient member of the force, he was discharged from service. in order words, it is not a case of discharge implicate but founded on certain allegations as pointed out in the order itself, for which, we are of the view that the petitioner should have afforded reasonable opportunity to explain the allegations as it cast stigma on his conduct, which has not been done by the department. thereforee, we quash the impugned order and direct the respondent to reinstate the petitioner. the petitioner shall be entitled to consequential benefits. however, the respondents are at liberty to take appropriate action in accordance with law.