| SooperKanoon Citation | sooperkanoon.com/950009 |
| Court | Andhra Pradesh High Court |
| Decided On | Jul-09-2012 |
| Case Number | Writ Petition Nos.8682 of 2012 & 9807 of 2012 |
| Judge | V.V.S. RAO & G. KRISHNA MOHAN REDDY |
| Appellant | The Government of Andhra Pradesh, Represented by Its Principal Secretary to Government, Home Department, Secretariat and Others |
| Respondent | Smt. Palla Venkata Ratnam and Others |
(Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to the orders of the Hon’ble Andhra Pradesh Administrative Tribunal, Hyderabad passed in O.A.No.660/2012, dated 05.03.2012 and quash the same as being erroneous in excess of jurisdiction and contrary to law and facts of the case.)
Common Order:(G. Krishna Mohan Reddy, J.)
These two writ petitions are filed under Article 226 of the Constitution of India against the same order dated 05.3.2012 of the Administrative Tribunal in O.A.No.660 of 2012. The said O.A. was filed by Smt.Palla Venkata Ratnam, Sub Divisional Police Officer (SDPO/DSP), Ramachandrapuram, Medak District (hereafter, the applicant) against the Government of Andhra Pradesh, the Director General of Police (DGP), the Superintendent of Police, Medak and the Inspector General of Police (hereafter, the respondents) assailing the Government Order in G.O.Ms.No.14, Home (Ser.I) Department, dated 25.1.2012 whereby and whereunder her probation as DSP was terminated and she was discharged under Rule 17(a)(ii) of the A.P. State and Subordinate Service Rules, 1996 (the General Rules). She also made Sri V.Dinesh Reddy, DGP as respondent No.5 in his personal capacity attributing mala fides. By impugned order the Tribunal set aside the Government Order assailed before them while leaving it open to the respondents to take action against the applicant as per the Rules.
W.P.No.8682 of 2012 is filed by the respondents and W.P.No.9807 of 2012 is filed by the applicant praying this Court to declare the impugned order of the Tribunal insofar as it did not consider the question of mala fides and also insofar as it gives liberty to the respondents to take further action as being vitiated by error. Both the writ petitions were heard together and are being disposed of by this common order.
The circumstances leading to filing of the O.A. are as follows. The applicant was selected as DSP on 10.3.2010 in the selections conducted by the A.P. Public Service Commission. After undergoing necessary training, she was posted as the DSP on 21.11.2011 at Ramachandrapuram, Medak district. Thereafter, on 23.1.2012 the Superintendent of Police, Medak i.e. the 3rd respondent issued orders informing that in pursuance of the orders of the 2nd respondent, she was kept under suspension on the allegation of settling land disputes and demanding illegal gratification from one Musuku Narasimha Reddy followed by G.O.Ms.No.14, dated 25.1.2012 terminating/ discharging her from the service under Rule 17(a)(ii) of the General Rules with immediate effect subject to payment of one month’s pay in lieu of one month notice, aggrieved by which, she filed the O.A. before the Tribunal.
The allegation of settlement and corruption attributed against the applicant are related to land dispute at Pati village of Patancheru mandal between Musuku Srinivas Reddy, S/o.Narasimha Reddy and his family members on one side and his cousin Musuku Rami Reddy and his family members on the other side. Admittedly, several criminal cases were filed in connection with the land dispute between the two groups on the file of the Court of Special Excise Magistrate, Sanga Reddy. The details of these cases are as below.
1. Crime No.44 of 2010 was registered for offences punishable under Sections 447, 427 and 506 IPC on the file of BDL Bhanoor Police Station on the allegation that Musuku Manik Reddy and three others trespassed into the disputed land and damaged the crop existing there and bet Musuku Srinivas Reddy. On 7.6.2010 filed charge sheet in the case numbered as C.C.No.80 of 2011.
2. Cr.No.848 of 2010 was registered for offences punishable under Sections 447, 323 and 504 r/w Section 34 IPC against Musuku Indramma and four others in which exactly similar allegations of trespass, damaging crop and beating Musuku Srinivas Reddy were made. The accused in that case were arrested and sent for judicial custody. The accused are on bail. Corresponding charge sheet was filed on 7.6.2011 and numbered as C.C.No.82 of 2011 which has been pending.
3. Cr.No.80 of 2011 was registered on a report given by Musuku Rami Reddy for offence punishable under Section 324 r/w Section 34 IPC, but the police referred the case as false, by reason of which, it was closed.
4. Cr.No.81 of 2011 was registered for offences punishable under Sections 447, 324 and 506 IPC r/w Section 34 IPC on a report given by Musuku Srinivas Reddy against the accused, charge sheet was filed in the case and numbered as P.R.C.No.98 of 2011, but Section 324 was altered to Section 307 IPC in the case later. The accused were granted bail in the case. A request was made by the 4th respondent to cancel the bail granted to the accused by virtue of the inclusion of Section 307 IPC.
5. Cr.No.107 of 2011 was registered in respect of offences punishable under Sections 324 and 354 IPC against the accused. The incident concerned in this crime is same as that covered by Cr.No.81 of 2011. The difference being, in Cr.No.107/11 Section 354 IPC was included. This case is pending investigation.
6. Security proceedings under Section 107 Cr.P.C. in Cr.No.3/12 were registered on 5.1.2012 against Musuku Rami Reddy and others, later the Revenue Divisional Officer, Sanga Reddy bound over and released the respondents/accused for keeping good behaviour.
The Inspector General of Police, West Zone, Hyderabad Region (for short ‘IGP’) sent a letter to the 3rd respondent vide proceedings Rc.No.7/Camp/2012 dated 18.1.2012 informing that it was brought to his notice that the applicant indulged in land settlements and also interfered in the land dispute in question at Pati village of Patancheru mandal with a request to look into the matter and send a report. A copy of the report of the 3rd respondent dated 20.1.2012, which is on record, discloses that after conducting preliminary enquiry he sent the report. The 3rd respondent in the report observed thus.
The SDPO, RC Puram after completion of the recording of the statements of the witnesses in Cr.No.107/2011, out of malafide intention sent out all the family members of Narsimha Reddy and other independent witnesses and even the concerned Inspector, BDL Bhanoor the IO in the case and SI Patancheru and secretly held talks with Narsimha Reddy and asked him to give 3 acres of land from out of the disputed 11.10 acres of land for settling the dispute.
…………… The SDPO by virtue of being the SDPO abused her powers and sidetracked the entire spirit of the investigation of the cases.
…………she indulged in such an abhorrent act which tantamount to effect further perpetration of an onslaught against the victim by demanding 3 acres of land who has had been suffering in the hands of his agnates. The way the SDPO acted has not only marred the image of police but also brought bad reputation.
……..SDPO does not deserve to be continued in RC Puram and requested that stringent disciplinary action may kindly be taken against her so that the others in the department abstain from indulging in such undesirable and unwarranted acts.
After receiving the report of the third respondent, the IGP addressed a letter dated 21.1.2012 to the DGP recommending to take necessary action against the applicant. The relevant portion of it reads.
Smt.P.VenkataRatnam, Sub-Divisional Police Officer, Ramachandrapuram of Medak district is a Probationary Dy. S.P. As per the report of the Superintendent of Police, Medak district she is settling land disputes and has demanded illegal gratification from Musuku Narasimha Reddy R/o Pati village.
It is requested that stringent disciplinary action may kindly be initiated against her. It is recommended that her probation may be terminated as she is not suitable to work in Police Department. Her continuation in the Police Department will make her a liability to the Police Department as well as the Public for the rest of her career.”
The DGP (respondent No.2) then suspended the applicant under clause 17(a)(i) and (ii) of the General Rules pending finalization of the matter which was served by the 3rd respondent on the applicant on 23.1.2012. The DGP thereafter addressed a letter to the Government of A.P. recommending for the termination of the applicant. He observed in his report.
After thorough enquiry into the entire issue by the S.P. Medak, it is proved beyond reasonable doubt that the charges of corruption against her are proved with documentary evidence. Such persons if continued would send a death knell to the very existence of the Police Department. Hence, she deserves no mercy.
The Government consequently issued G.O.Ms.No.14 Home (Ser-I) Department dated 25.1.2012 discharging/terminating the applicant from the service. It is necessary to extract the G.O. which is as under.
Public Services – Police Department – Smt.P.Venkata Ratnam, Probationary Deputy Superintendent of Police of 2010 batch now working as SDPO, Ramachandrapuram, Medak district – Termination of her probation and discharge from service – orders – issued.
1. G.O.Ms.No.41, Home (Ser.I) Department dated 23.2.2010.
2. From the Director General of Police, A.P., Hyderabad Lr.C.No.125/G3/2012 dated 24.1.2012.
ORDER:
In the G.O.1st read above, Smt.P.Venkata Ratnam, who was selected under Group-I Services, 2007 under Direct Recruitment, was appointed as Deputy Superintendent of Police, Category-II along with some others. In the said orders, while placing her on probation, it was specifically mentioned therein that their services are liable to be terminated at any time before declaration of probation under Rule 17(a)(ii) of A.P. State and Subordinate Service Rules, 1996 with one month’s notice or one month’s pay in lieu thereof.
2. In the reference 2nd read above, the Director General of Police, A.P., Hyderabad has requested the Government to terminate the probation of Smt.P.Venkata Ratnam, Probationary Deputy Superintendent of Police, now working as SDPO, Ramachandrapuram, Medak district, and discharge her from service, by paying one month’s pay in lieu of one month’s notice.
3. The Government, after careful examination of the matter, hereby accept the proposal of the Director General of Police, A.P., Hyderabad and accordingly the probation of Smt.P.Venkata Ratnam, Probationary Deputy Superintendent of Police, now working as SDPO, Ramachandrapuram, Medak district is hereby terminated and she is discharged from service under Rule 17(a)(ii) of A.P. State and Subordinate Service Rules, 1996 with immediate effect, by paying one month’s pay in lieu of one month’s notice.
4. The Director General of Police, A.P., Hyderabad is requested to further follow up action in the matter”.
Her case is that on 28.12.2011, the DGP’s peshi instructed her to help Musuku Srinivas Reddy, who would approach her informing that the DGP was interested in them. Later Musuku Srinivas Reddy approached her and asked her to instruct the Circle Inspector of Police/Investigating Officer (4th respondent) to arrest Musuku Rami Reddy, Musuku Mahipal Reddy, Musuku Narender Reddy and Musuku Sridhar Reddy, accused in Cr.No.107/11 in relation to the land dispute and terrorise them, following which she instructed the 4th respondent to arrest the accused, but the 4th respondent replied that it was not possible to do so, because they were already arrested and released on bail in connection with the same incident in Cr.No.81/11. On the same day, the 3rd respondent gave similar directions. In consequence of that Musuku Srinivas Reddy, his father Musuku Narasimha Reddy and his brother-in-law Amarender Reddy approached her on 02.1.2012 and then she reiterated the position. She claims that then Musuku Srinivas Reddy allegedly called the son-in-law of DGP namely Ashish Reddy by a mobile phone with sim card number 9177898989 and at his instance, she talked to Ashish Reddy through that mobile phone and appraised the position. According to her, then Musuku Srinivas Reddy requested her to arrest three other accused in the case namely L.Swamy Goud, V.Ramulu, Shapuram Jairam Reddy atleast for the same purpose, but she answered that it was not possible. It is further according to her that on 4.1.2012, on the directions of the 3rd respondent, the 4th respondent registered a case under Section 107 Cr.P.C. to arrest the accused in connection with the same incident, but the arrest could not be done that being security proceedings. It is then claimed by her that on 18.1.2012 at about 6.30 p.m. she was called to the chambers of the DGP who then abused her in unparliamentary language for not implementing his instructions in the presence of the IGP and 3rd and 4th respondents. Apart from that according to her, he also asked her to get out of the room. Then he directed the other officials to record the statements of Musuku Srinivas Reddy and others and suspend her from the service with immediate effect, which was followed by the issuance and service of suspension and termination orders on 23.1.2012 and 25.1.2012 respectively. She claims that as she acted as per law and did not toe to the dictates of the DGP she was victimized.
The DGP admits giving the instructions to his peshi to direct the applicant to talk to Musuku Srinivas Reddy, but according to him, it was done to ensure appropriate investigation in the criminal case on the apprehensions raised by Musuku Srinivas Reddy. It is emphasized by him that whenever such complaints are received, he alerts the police officials to ensure proper investigation. According to him on 18.1.2012, he asked the applicant in the presence of IGP and 3rd and 4th respondents about lapses committed by her in the case, but she could not answer him. He specifically denies that he got son-in-law by name Ashish Reddy, and that he is involved to help Musuku Srinivas Reddy as claimed by the applicant and that he reprimanded the applicant for not carrying out the instructions and directed the other officials to record the statements and suspend her.
The Tribunal allowed the O.A. on the ground that;
(1) No objective enquiry was conducted giving opportunity to the applicant of making necessary representation and the preliminary enquiry could not be the basis to terminate her and
(2) The impugned order is stigmatic and punitive in nature.
The Tribunal did not consider the question of mala fides in the order. In these writ petitions, all these points are to be considered.
POINT No.1
On the question of mala fides, though submissions of Senior Counsel for applicant, learned Government Pleader and learned advocate for Sri V.Dinesh Reddy are elaborate and exhaustive, it would be sufficient to deal with the matter in a broad perspective leaving insignificant aspects. Emphatically, all the criminal cases were registered much prior to the date of her joining the duty as SDPO on 28.11.2011. The 4th respondent, as the Investigating Officer got the competency to arrest the accused in the cases. The counsel for the applicant would contend that at a time when no need was there the DGP got involved the applicant in the land settlement between the two groups, which clearly infers that he did so with mala fide intention. The counsel has elaborately submitted with all the instances raised by the applicant asserting that those circumstances establish the plea of mala fides, which vitiates the order discharging applicant from the service. He has drawn the attention of this Court to S.PratapSingh v. State of Punjab (1964) 4 SCR 733 : AIR 1964 SC 72 : (1966) 1 LLJ 458).
Learned counsel for the DGP has refuted the claim of the applicant as baseless. He has stressed that there was no question of directing the applicant to arrest the accused in the criminal cases when she was not the Investigating Officer and she got no competency to arrest the accused to uphold her claim.
The bad faith in passing orders is extraneous exercise of power. The mala fide exercise of power, therefore, renders a decision illegal. Often grave imputations and allegations are made against a person holding Office of high responsibility of the decision, they are made often more easily than proved especially by those who suffer by reason of a decision. The burden of proving mala fide exercise of power is very heavy on the person who comes to the Court with such plea. The law, however, does not require direct evidence. The mala fide action must be discernible from the order impugned. It must be shown from the established surrounding factors and one should be able to draw a reasonable and inescapable inference from proved facts. On mere allegations of mala fides without the possible reasons to attribute malice to the authority, one cannot possibly succeed in proving the mala fides. There should be some direct connection between the action complained and the role of the aggrieved in such action or inaction. If the surrounding indicating factors preceding the order are not established to have any connection with the reasons for the order, it is safe to reject such allegations (PratapSingh, E.P.Royappa v State of Tamil Nadu (1974) 4 SCC 3 : AIR 1974 SC 555), Indian Railway Construction Company Limited v Ajay Kumar (2003) 4 SCC 579 : AIR 2003 SC 1943), Delhi Development Authority v UEE Electricals Engg. (P) Ltd (2004) 11 SCC 213 : AIR 2004 SC 210)andUnion of India v Ashok Kumar (2005) 8 SCC 760).
While dealing with similar question, the Supreme Court in PratapSingh considered the effect of mala fide acts of an authority constituted under a statute. In the view of the Supreme Court, such acts are null and void and inoperative. It is also held by the Supreme Court that when the authority concerned denies the charge of mala fides, the Court has to enquire into the truth of the allegations made and grant appropriate relief to the authority. The relevant observations are as follows.
… … … Similarly, in Short v. Poole Corporation [(1926) 1 Ch 66 CA at p.85], Pollock M. R. observed : 'The appellants (represented before the court by Maugham K. C.-afterwards Lord Maugham) do not contest the proposition that where an authority is constituted under statute to carry out statutory powers with which it is entrusted, . . ... . if an attempt is made to exercise those powers corruptly-as under the influence of bribery, or mala fide-for some improper purpose, such an attempt must fail. It is null and void see Reg. v. governors of Darlington School (6 Q.B. 682, 715).
In, the same case Warrington, L.T., said 'No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives and any action purporting to be that of the body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative.
As we said earlier, the two grounds of ultra vires and mala fides are thus most often inextricably mixed. Treating it as a question of ultra vires, the question is what is the nature of the power?; has it been granted to achieve a definite object, in which case it would be conditioned by the purpose for which it is vested. Taking the present case of the power vested in government to pass the impugned orders, it could not be doubted that it is vested in government for accomplishing a defined public purpose viz., to ensure probity and purity in the public services by enabling disciplinary penal action against the members of the service suspected to be guilty of misconduct…………………. In this connection we might cite a dictum of Lord Lindley in General Assembly of Free Church etc.v. Overtoun [1904 AC 515 at p.695] when the learned Lord said at page p.695: ‘I take it to be clear that there is a condition implied' in this as well as in other instruments which create powers, namely, that the power shall be used bona fide for the purposes for which they are conferred.
The only question which could be considered by the court is whether the authority vested with the power has paid attention to or taken into account of circumstances, events or matters wholly extraneous to the purpose for which the power was vested, or whether the proceedings have been initiated mala fide for satisfying a private or personal grudge of the authority against the officer. If the act is in excess of the power granted or is an abuse or misuse of power, the matter is capable of interference and rectification by the court. In such an event the fact that the authority concerned denies the charge of mala fides, or asserts the absence of oblique motives or of its having taken into consideration improper or irrelevant matter does not preclude the court from enquiring into the truth of the allegations made against the authority and affording appropriate reliefs to the party aggrieved by such illegality or abuse of power in the event of the allegations being made out.
The Supreme Court in that context considered the question of burden of proof of mala fides and held as follows.
“Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by government of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the appellant has to establish in this case, though this may sometimes be done (See Edgington v. Fitzmaurice [29 CD 459]. We must, however, demur to the suggestion that mala fide in the sense of improper motive should be established only by direct evidence that is that it must be discernible from the order impugned or must be shown from the notings in the file which preceded the order.
The allegation of mala fides and wrecking vengeance is to be tested with reference to the competency of the applicant to investigate the criminal cases and arrest the accused. When it is alleged that the DGP was interested in Musuku Srinivas Reddy who in turn wanted the accused arrested and detained in judicial custody as a measure to ensure the settlement of the dispute, the competence of the applicant to do so is very relevant. When the 4th respondent was the Investigating Officer who in fact got the competence and power to arrest the accused, the probable conduct of the DGP would be to instruct him to achieve the object, if so advised or desired, which was easier. It appears to be so strange thereby that he approached the applicant to carry out the mission particularly when she was a novice in the department having taken charge of her post just seven days prior to the incident. It is no body’s claim that the applicant stood as a hurdle to prevent the DGP from carrying out what they wanted through the 4th respondent to draw an adverse conclusion. Significantly, in her affidavit in the O.A itself, she admitted categorically that she acceded to the directions of Musuku Srinivasa Reddy to arrest the accused and terrorise them which was to achieve the object of the settlement of the civil dispute and instructed the 4th respondent to arrest the accused, which was in vain. Apart from that, when the applicant claims that the 4th respondent expressed his inability to arrest the accused in the criminal case or cases registered quite prior to the date of her taking charge, it leads to a logical conclusion that if the DGP got a grouse in the matter, it would be against the 4th respondent only for the non-compliance with the instructions. Absolutely there is no basis to comprehend that the DGP gave such instructions to the 4th respondent and targeted him when the latter failed to comply.
The allegation that on the directions of 3rd respondent, the 4th respondent registered the security proceedings under Section 107 Cr.P.C only to see that the accused were arrested is without any basis, as there cannot be any arrest in security proceedings. Even the allegation of involvement of Ashish Reddy is baseless. Telephone call list which is filed before us does not give any clue with regards to the alleged discussion between the applicant and Ashish Reddy. Apart from that the mobile with sim card number 9177898989 said to be used by Musuku Srinivasa Reddy is in the name of a different party namely O.Ramesh of Malkajgiri, Secunderabad. There is no correlation of the allegation made. Even in the extreme case of upholding this contention, it would not suffice to uphold that the entire episode is marked by mala fides in view of the findings arrived at which exclude the possibility of targeting the applicant.
No adverse inference can also be drawn of the peshi of DGP contacting the applicant and instructing her to ensure fair investigation in the criminal cases. No inference of any foul play can be drawn when the allegations of illegal interference of the DGP in the matter is ruled out. Being the DGP, he got obligation to see that law and order in the State is properly maintained. Under that obligation he also got a duty to give instructions to his subordinates to do whenever needed. It is natural if he reprimands any official when his instructions are not properly carried out. Viewed from any angle, there is not even a semblance of prima facie evidence as to why the DGP would have chosen to approach her to carryout the alleged illegal arrest and why he targeted her. In fact the circumstances show that the DGP acted fairly to see that the investigation of the case was carried out properly. His affidavit apparently represents honest narration of events without hiding anything. Ultimately we hold that the plea of mala fides is not established.
Point No.2
With regards to the plea of termination without giving any opportunity of being heard and the impugned order being stigmatic and punitive, arguments are advanced at length referring to various decisions. The applicant’s counsel would contend that the termination ordered is not only innocuous but also punitive and stigmatic in nature having been obtained in ex parte enquiry conducted behind the back of the applicant. His stress is that the allegation of demanding the bribe in the form of giving Ac.3.00 of land and the conclusion followed are not merely the motive but also the very foundation of the order of termination which attracts Article 311 of the constitution. His emphasis is that not only the order of termination but also the reports which are the basis of termination are to be read together to determine whether it is one of simplicitor or one of punishment.
The learned Government Pleader for the respondents would submit that there was only preliminary enquiry and no objective enquiry; the preliminary enquiry was conducted to ascertain the eligibility of the applicant to continue in the job and not to punish him. The respondents plead that only a simple order of termination was passed which is not stigmatic and punitive.
The applicant was terminated by virtue of Rule 17(a) of the General Rules. She is governed by the General Rules. Rule 17(a) reads as follows.
17. SUSPENSION, TERMINATION ON EXTENSION OF PROBATION:- (a)
1. The appointing authority may, at any time, before the expiry of the prescribed period of probation, suspend the probation of a probationer and discharge him from service for want of vacancy.
2. The appointing authority may, at any time, before or after the expiry of the prescribed period of probation either extend by not more than one year, whether on duty or otherwise, the period of probation of a probationer, in case the probation has not been extended under sub-rule (b) of this rule or terminate his probation and discharge him from service after giving him one month’s notice or one month’s pay in lieu of such notice, on account of unsatisfactory performance or progress during training or unsatisfactory performance of duties or unsatisfactory conduct or for any other sufficient reason to be recorded in writing.
3. The appointing authority may, at any time, before the expiry of the prescribed period of probation, post the probationer under another officer in order to make sure that the previous report made on his performance or conduct by a superior officer is not a biased one.
Significantly, clause (ii) empowers the appointing authority to terminate the probation and discharge the probationer on account of unsatisfactory performance or progress during the training or unsatisfactory performance of duties or unsatisfactory conduct and so on subject to the other formalities mentioned thereunder. Much emphasis is to be attached to the words ‘unsatisfactory conduct’.
In fact, the terminology ‘unsatisfactory conduct’ is important. In Oxford Dictionary and Thesaurus of 2007 edition, the meaning of the word ‘unsatisfactory’ is given as ‘not good enough’, its synonyms are given as ‘disappointing’, ‘undesirable’, ‘disagreeable’, ‘displeasing’, ‘poor’, ‘unacceptable’, ‘bad’, ‘defective’ etc., apart from this the meaning of ‘misconduct’ given therein is ‘unacceptable’ or ‘improper behaviour’ and its synonyms are ‘wrong doing’, ‘unlawfullness’, ‘criminality’, ‘malpractice’, ‘negligence’, ‘bad behaviour’ etc.
In State of Punjab vRam Singh Ex. Constable (1992)4 SCC 54 : (1992) 3 SCR 634)the Supreme Court after referring the meaning of misconduct in office as given in Black’s Law Dictionary, and the definition of misconduct in P. Ramanatha Aiyar's the Law Lexicon, observed that the word ‘conduct’ though not capable of precise definition, should receive its meaning from the context; the delinquency in its performance and its effect on the discipline and the nature of the duty and it may involve a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty and so on.
In fact, in Black’s Law Dictionary, the meaning of misconduct is given as follows.
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness”
And
the definition of misconduct in office is given as
Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.
In that view of the matter there is no much difference between misconduct and unsatisfactory conduct. What is significant is that clause (ii) of Rule 17(a) of the General Rules provides that a government servant can be terminated and discharged from service on account of unsatisfactory performance or progress during training or unsatisfactory performance of duties or unsatisfactory conduct or for any other sufficient reason to be recorded in writing. By virtue of the language so used unsatisfactory conduct is quite distinct from the other aspects which actually deal with the suitability of job without touching the question of conduct. Unsatisfactory performance or progress during training or unsatisfactory performance of duties do not involve deliberate doing of a wrong act which certainly amounts to misconduct which falls within the ambit of unsatisfactory conduct.
With regard to probation and confirmation in a post, as laid down in ShamsherSingh v State of Punjab (1974) 2 SCC 831 : AIR 1974 SC 2192), delivered by a constitution bench of seven Judges of the Supreme Court, before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged in which no punishment is involved. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry and so as to allow such employee to seek job elsewhere, may not conduct enquiry and may pass order of discharge.
In State of Punjab v Sukhvinder Singh (2005) 5 SCC 569 : AIR 2005 SC 2960)also this aspect was considered. It is observed by the Supreme Court that the period of probation furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service. Period of probation may vary from post to post or master to master and it is not obligatory on the master to prescribe a period of probation. It is always open to the employer to employ a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer.
In ParshotamLal Dhingra v Union of India (AIR 1958 SC 36),the Supreme Court had occasion to consider the rights of a public servant to hold temporary or permanent post. The Supreme Court observed that inthe absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years of service or the post is abolished. His service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put to an end to during that period unless he is, by way of punishment is dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service. Whether the protection of Article 311 is available to each of these several categories of Government servants?
In ParshotamLal Dhingra, the appellant was working as Chief Controller in the railway service. He was reverted to a lower post on the ground of unsatisfactory performance in the job, without giving any opportunity to show cause against the action proposed. An issue was raised with regards to the validity of the order with reference to Article 311 of the Constitution. The Supreme Court held.
….Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases herein before mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art.311. In other words and broadly speaking, Art. 311(2), will apply to those cases where the government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Art.311.
Thus,if the servant got a right to continue in the post, then unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence etc., which are subject to Article 311. This contemplates that if the service conditions or relevant rules provide for his termination without resorting to the procedure mandated by Article 311 on the grounds of misconduct, negligence etc., then the termination on any of those grounds cannot be said to be punitive. This signifies that Article 311 of the Constitution is qualified in the present context subject to the terms of the contract of employment or the purport of the rules framed in that behalf.
With regards to motive and foundation, the question that needs to be considered is whether holding preliminary enquiry or factum enquiry by which relevant factors to ascertain the suitability of job are gathered would amount to motive or foundation. In consequence of that, it is also to be considered what is meant by stigma and what is meant by punitive. The Supreme Court has held in catena of decisions that the factum enquiry does not amount to foundation but amounts to motive when it is within the ambit of suitability of job and beyond that it amounts to foundation and termination on the basis of foundation amounts to punishment.
In DiptiPrakash Banerjee v Satyandra Nath Bose National Centre for Basic Sciences (1999) 3 SCC 60 : AIR 1999 SC 983) a regular departmental preliminary enquiry was conducted and findings were arrived at with regards to misconduct behind the back of a public servant and consequently, the officer was terminated. The Supreme court held that it should be treated as “founded” on the allegations and will be bad. The Supreme Court also held that if no enquiry was 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 against whom there were complaints, it would only be a case of motive and the order would not be bad. This principle implies that even a bad conduct is a ground for termination and discharge when it is not founded on any enquiry.
In Chandra Prakash Shahi v State of U.P. (2000) 5 SCC 152 : AIR 2000 SC 1706)similar view was taken under similar circumstances by the Supreme Court. It is observed by the Supreme Court that ‘motive’ is the moving power which implies action for a definite result, or to put it differently, ‘motive’ is that which incites or stimulates a person to do an act. It is further observed that an order terminating the services of an employee is an act done by the employer and if it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law.
In DiptiPrakash Banerjee also considered “what is meant by stigma”. It reads.
ACCORDING to Webster's New World Dictionary it is something that detracts from the character or reputation of a person, a mark, sign, etc., indicating that something is not considered normal or standard. The Legal Thesaurus by Burton gives the meaning of the word to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame. The Webster's IIIrd New International Dictionary gives the meaning as a mark or label indicating a deviation from a norm. ACCORDING to yet another Dictionary 'stigma' is a matter for moral reproach.
Thereby to say that there is stigma, there should be something which detracts from the character or reputation of a person, a mark, sign, etc., indicating that something is not considered normal or standard. It also gives meaning to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame and so on.
In PavanendraNarayan Verma v Sanjay Gandhi PGI of Medical Sciences (2002) 1 SCC 520), also this aspect is considered. The Supreme Court observed that before considering the facts of the case, it needs to be cleared what language in a termination order would amount to stigma and 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. In order to amount to stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.
In PavanendraNarayan Verma, it is also observed by the Supreme Court that to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct (c) which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.
Then, it requires to be examined what is the effect of misconduct or unsatisfactory conduct when prescribed in law as a ground of discharge.
In Gujarat Steel Tubes Ltd. v Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593), the Supreme Court explained how misconduct of an employee is eschewed from the purview of Article 311 to claim relevant benefits incorporated in the Article when misconduct is stipulated to be a ground of discharge in the rules framed in that behalf. In that case a total strike of the employees of Gujarat Steel Tubes Limited which was manufacturing steel tubes in the outskirts of Ahmadabad ensued which resulted in wholesale termination/discharge of all the employees followed by fresh recruitment of workmen, de facto break down of the strike and dispute over the restoration of the removed workmen. The matter went up to the Supreme Court where a question was raised as to whether the misconduct was the foundation of the order of discharge or merely the reason which waived with the employer in effecting the termination.
It appears that, model standing orders (for short ‘M.S.Os’) were framed under Section 15(2) of the Industrial Employment (Standing Orders) Act, 1946. M.S.O.23 provided for termination of permanent workmen giving 14 days notice etc., and M.S.O.25 with sub-clauses a to g, provided for discharging workmen guilty of misconduct and even dismissal without notice.
It was vehemently argued on behalf of the workmen that once it was proved that the order of discharge of a workman was passed by reason of misconduct attributed to him by the management, the order would not but amount to an order of dismissal. But that argument was negatived as wholly without substance in view of M.S.O.23 read with M.S.O.25. In fact it is observed by the Supreme Court that when the employer is satisfied that a workman has been guilty of misconduct, he may [apart from visiting the workman with any of the punishments specified in sub-clauses (a) (b) (c) (d) and (e) of clause (1) of M.S.O.25] either pass against him an order of discharge for which no inquiry as provided for in clauses (3) and (4) of M.S.O.25 would be necessary or may dismiss him after holding such an inquiry. Which of the two kinds of order the employer shall pass, is left entirely to his own discretion. It is also observed by the Supreme Court that if the order of termination of the services of the employees in reality is intended to punish them and not merely to get rid of them then even though it is specified to be an order of discharge it would be deemed to be an order of dismissal covered by sub-clause (g) of clause (1) of M.S.O.25 which would invalidate the termination caused without effecting necessary enquiry.
Consequently, the termination of the applicant even on the ground of misconduct falls within the domain of Rule 17(a) of the Rules to the exclusion of the application of Article 311, of course subject to other required formalities. What emerges is when the question of misconduct itself is a ground to discharge the probationer any termination or discharge on that ground cannot be held to be punishment.
In ShamsherSingh, the appellant therein along with another joined Punjab Civil Service (Judicial branch) and both of them were on probation. A preliminary enquiry was conducted on the ground of unsatisfactory performance of their duties. The enquiry officer recorded statements of witnesses behind the back of them to ascertain the truthfulness of the allegations of misconduct and sent his report to the effect that the allegation was proved prima facie which was accepted by the High Court of Punjab, following which the High Court sent recommendation to the Governor of the State to discharge them, in consequence of which they were terminated from the service, which was questioned. The Governor of Punjab terminated their services under Rule 9 of the Punjab Civil Service Rules, 1992, with immediate effect on the ground of unsatisfactory performance of their duties after conducting preliminary enquiry. Rule 7(3) of the said Rules provided for confirmation of probation and also dispensation of their services or reversion to their former substantive post, if their work or conduct was reported by the High Court to be not satisfactory. The Supreme Court following the principles laid down in ParshotamLal Dhingra held that the order of termination was clearly by way of punishment which therefore was not tenable.
However, the Supreme Court upheld the concept of factum enquiry to ascertain the genuineness of the allegations made for the purpose of discharge, subject to that, the out come of it should not amount to punishment. The Supreme Court observed:
The enquiry against the respondent was for ascertaining whether he was fit to be confirmed.... The third proposition in... (the Gopi Kishore) case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed. Therefore, the fact of holding of an enquiry is not decisive of the question. What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Purshottam Lal Dhingra's Case.
Thus a shift was made from the factum of enquiry to the object of the enquiry. Madan Gopal found the Court applying the object of enquiry doctrine to a simple order of termination which had been preceded by a show cause notice and enquiry. It was held that if the enquiry was intended to take traumatic action, the innocent phraseology of the order made no difference.
Thus the principle of conducting factum enquiry to ascertain facts with regards to suitability of job was upheld by the Supreme Court in several decisions.
In KendriyaVidyalaya Sangathan v Arunkumar Madhavrao Sinddhaye (2007) 1 SCC 283 : AIR 2007 SC 192)the Supreme Court went to the extent of upholding an exparte enquiry which resulted in establishing a charge of misconduct and termination, observing that there was no element of punishment. A teacher involved in forcing a student of IX class to run approximately about 4 kilometers having knowledge that the student had developed serious chest pain. Enquiry was conducted by a competent authority in which 8 witnesses were examined and a report was sent upholding the allegation on the basis of which the PT was terminated. The Supreme Court held with reference to the facts of the case.
11……..In order to ascertain the complete facts it was necessary to make enquiry from the students concerned. If in the course of this enquiry the respondent was allowed to participate and some queries were made from the students, it would not mean that the enquiry so conducted assumed the shape of a formal departmental enquiry. No articles of charges were served upon the respondent nor were the students asked to depose on oath…………. The limited purpose of the enquiry was to ascertain the relevant facts so that a correct report could be sent to the Kendriya Vidyalaya Sangathan. The enquiry held can under no circumstances be held to be a formal departmental enquiry where the non-observance of the prescribed rules of procedure or a violation of principle of natural justice could have the result of vitiating the whole enquiry. There cannot be even a slightest doubt that the Assistant Commissioner, Kendriya Vidyalaya Sangathan, Bombay Region, terminated the services of the respondent in accordance with the terms and conditions mentioned in his appointment order which expressly conferred power upon the appointing authority to terminate the respondent's services by one month's notice without assigning any reasons. The services of the respondent were, therefore, not terminated by way of punishment.
In SukhvinderSingh with regards to an enquiry conducted about character of the appellant therein, the Supreme Court held as follows.
…. As discussed earlier the consistent view of this Court is that even if some kind of preliminary inquiry or fact finding inquiry is held in which the employee is not afforded an opportunity of hearing, the order of discharge of a probationer cannot be treated as an order of punishment as the appointing authority has to necessarily ascertain all the relevant facts before taking a decision whether the probationer should be retained in service or not.
In BishanLal Gupta Vs. State of Haryana (AIR 1978 SC 363)about suitability to continue in service, it was held that where the intention behind an inquiry against a probationer was not to hold a full departmental trial to punish but a summary inquiry to determine only suitability to continue in service of the probationer and the probationer was given ample opportunity to answer in writing whatever was alleged against him in show cause notice, the innocuous order of termination following such summary inquiry could not be said to be an order of punishment which entitled him to a full-fledged inquiry contemplated by Article 311 of the Constitution.
In RadheyShyam Gupta v U.P. State Agro Industries Coprn. Ltd. (1999) 2 SCC 21 : AIR 1999 SC 608)the appellant therein was working as Branch Manager, Meerut Division of the respondent corporation, while he was working as Branch Manager at Faizabad. While he was charged of fraudulently receiving Rs.2,000/- from a person and a preliminary enquiry was conducted by an authority who sent ex parte report upholding the allegation. The appellant raised a plea of foundation and also plea of mala fides.
It is held by the Supreme Court:
In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into their truth but decides merely not to continue a dubious employee. The master does not want to decide or direct a decision about the truth of the allegations. But if he conducts an enquiry only for the purpose of proving the misconduct and the employee is not heard, it is a case where the enquiry is the foundation and the termination will be bad.
34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee — even though such acceptance of findings is not recorded in the order of termination.
From the decisions as it may be taken as well settled that the discharge for misconduct is a different context which requires a different consideration. When bad conduct equated with the unsuitability for a job, discharge within the parameters of that concept cannot be said to be stigmatic and punitive. As held in Gujarat Steels Ltd that if the order of termination of the services of the employee for misconduct is in conformity with the law laid down for discharge such a termination is valid unless it was so done with the intention of punishing the employee. When the government servants are governed by a particular law of discharge, the question of punishment arises when consequential termination was not done adhering to that law.
When the factum enquiry or preliminary enquiry to ascertain the genuineness of the corresponding allegations made in the context of the suitability of the employment is valid, under the same analogy any preliminary enquiry conducted with regards to the misconduct of the appellant is also valid when the very misconduct is a ground for discharge as per the law enacted. So, when the law provides that misconduct is a ground of discharge, it is not illegal to conduct necessary fact finding summary enquiry to ascertain the correctness of it in view of the principles laid down.
Whether the language employed in the order of termination issued by the Government alone is to be taken into consideration to examine the question of its validity? In AnoopJaiswal v Government of India (1984) 3 SCC 369 : AIR 1984 SC 636), the Supreme Court considered this aspect. The applicant therein was terminated, whereas recommendation made by the concerned authority was the basis of foundation for the order. The Supreme Court held that both the documents should be read together for the purpose of determining the true character of the order of termination. Similar view was taken by the Supreme Court in DiptiPrakash Banerjee. Thereby not only the order of termination but also the basis for that is to be considered.
The fact that the mala fides alleged against the DGP are not established, gives credibility to the fact finding enquiry. In the absence of mala fides and also in view of the grounds of discharge and the language used in the reports of IGP and DGP recommending discharge of the applicant cannot be taken nor this Court is convinced with any of the submissions of the applicant. The Supreme Court and this Court have repeatedly laid down that the police officers cannot interfere in civil disputes. If an allegation is made that an officer of the rank of SDPO is involved in settling civil disputes and demanded illegal gratification for the same, it is the primary duty of the immediate controlling authorities as well as DGP as the head of the police department to act promptly and take necessary action. In that view of the matter, the action which commenced at the instance of the IGP and culminating in the order of the Government discharging the applicant, in our considered opinion, is sustainable on facts and law.
In the result, for the above reasons, the impugned order of the Tribunal is liable to be set aside. Accordingly, we set aside the order of the Tribunal dated 05.3.2012 in O.A.No.660 of 2012 and allow W.P.No.8682 of 2012. As a consequence thereof, W.P.No.9807 of 2012 shall stand dismissed. The miscellaneous petitions in both the writ petitions shall stand disposed of in terms of this final order.
The writ petitions are ordered accordingly without any order as to costs.