Heard learned counsel for the petitioner as well as learned Standing Counsel.
The case of the petitioner is that the petitioner was appointed as temporary constable and a criminal case was lodged against the petitioner registered as Crime Case No. 288 of 1991 under Sections 392, 323, 506 and 342 I.P.C. lodged at Police Station G.R.P., Lucknow. It appears that thereafter the impugned order dated 21st March, 1991 was passed by the Superintendent of Police Railway terminating the services of the petitioner treating him to be temporary Government employee under U.P. Temporary Government Servants (Termination of Services) Rules, 1975.
Aggrieved by the said impugned order, the petitioner has preferred this writ petition. The submission of the learned counsel for the petitioner is that the order impugned is punitive in nature as it casts a stigma upon the petitioner and further the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 are not applicable on the petitioner. The sole basis for termination of the petitioner is the lodging of the first information report and the petitioner was subsequently acquitted in the trial and the final argument of the learned counsel for the petitioner is that the procedure as prescribed under Regulation 541 of the Police Regulations has not been complied with.
In rebuttal, the learned Standing Counsel states that the petitioner has not filed his appointment letter nor he has stated in the pleadings, as to when, the petitioner was appointed and as to whether his services was under probation, as contemplated under Regulation 541.
The Police Force being a disciplined force and in case, of criminal offences being lodged against a temporary constable is sufficient to terminate his services. The order does not cast any stigma, as it does not state that the order has been passed on any misconduct rather on unsuitability of the petitioner.
The pleadings are silent, as to the nature of the appointment of the petitioner and it is nowhere stated that the petitioner was appointed against a clear vacancy as contemplated under Regulation 541. Sub-clause (1) of Regulation 541 states that the person will be on probation from the date he begins to officiate in clear vacancy. The entire petition is silent, as to whether the petitioner after completing his training was appointed against a clear vacancy rather the submission of the learned counsel for the petitioner is that the petitioner was recruited as a temporary constable and no appointment letter was issued to the petitioner. There is no denial of the fact that immediately after the petitioner got recruited he got involved in a criminal offence of serious nature. The impugned order states that the petitioner was temporary constable bearing no. 2526 and his services are no longer required and hence is being terminated in lieu of a month's notice. The order impugned has been passed under the 1975 Rules.
The learned counsel for the petitioner has relied upon judgments passed in Writ Petition No. 1055 of 1993 (Ram Sagar Pandey vs. State of U.P. and others), Writ Petition No. 551 (SS) of 1993 (Murli Shanker vs. State of U.P. and another), Division Bench judgement in Ram Lakhan Tiwari vs. Senior Superintendent of Police, Kanpur reported in (2011) 3 UPLBEC 2335, State of U.P. vs. Sunil Kumar Sharma reported in (2011) 3 UPLBEC 2588 and the Supreme Court judgment reported in (2000) 5 SCC 152 Chandra Prakash Shahi vs. State of U.P. and others.
I have perused the aforementioned judgments and facts of each case and the judgments are distinguishable from the facts of the present case. In Ram Sagar Pandey's case (Supra) as well as in Murli Shanker case (Supra) the finding is that the constables were permanent constables in the police force and they had completed their probation and the Court was of the opinion that their services could not have been terminated under 1975 Rules by giving one month's notice. The Division Bench in Ram Lakhan Tiwari's case (Supra) has referred to a Full Bench judgment of the Supreme Court in Nanak Chandra vs. State of U.P. in writ petition no. 2808 of 1970 decided on 21.5.1971, which considered the question, as to whether Police Act and the Police Regulations contemplates any temporary employment of police officers, and came to the conclusion that temporary post can be created in the police force and the Full Bench was of the view that the Section 2 of Police Act is wide enough to the wordings that such post can be created and the decision of the Full Bench was affirmed by the Supreme Court and was of the view that petitioners, who were recruited on temporary basis and through out their services they remained as temporary employee and their services were liable to be terminated on one month's notice. Paragraphs 6 & 11 of the Ram Lakhan Tiwari's case (Supra) are reproduced:-
"The State of U.P. filed Civil Appeal No. 8279 of 1996. By judgment dated 13.4.2007, the Supreme Court set aside the judgment of the learned Single Judge of the Court, with findings that Full Bench of the High Court in Nanak Chand Vs. State of U.P., in writ petition No. 2808 of 1970 decided on 21.5.1971, considered the question as to whether the Police Act and the Police Regulations contemplates any temporary employment of police officers, and came to the conclusion that temporary post can be created in the police force. The Full Bench was of the view that Section 2 of the Police Act is wide enough to permit such posts to be created. The Supreme Court held as follows:-
"The Full Bench was also of the view that it is a general rule in the State for all new recruits to be employed first in a temporary capacity. Accordingly, the full Bench held in Nanak Chand (Supra) that all the petitioners were recruited on temporary basis and throughout their service they remained temporary employees whose services were liable to be terminated on one month's notice. Undisguisedly, the decision of the full Bench was not brought to the notice of the learned Single Judge. In view thereof, counsel on both sides submit that the order of the Single Judge impugned in this appeal may be set aside and the matter may be remitted to the Single Judge of the High Court of Allahabad to consider afresh after considering the judgment in Nanak Chand (supra) rendered by the full Bench of the High Court"
11. The Supreme Court referred to the Full bench decision of this Court in Nanak Chand (Supra) that temporary employment is also given in the police force. There is no general rule that all the police constables are permanent employees. The petitioner was recruited in the year 1973. There was nothing to show that he was placed under probation. The petitioner had to be treated as a temporary employee on the date when his services were terminated by the Senior Superintendent of Police, Kanpur."
In Chandra Prakash Shahi's case (Supra), the Supreme Court after considering earlier judgments on the subject made a distinction between termination simlicitor and a punitive termination and the Supreme Court was of the view that termination motivated by employees general unsuitability is valid. Paras 28 and 29 are relevant:-
"28.) The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".
29.)"Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry."
The facts of Chandra Prakash Shahi's case (supra) is distinguishable from the facts of the case in hand. The constable had completed training and also two years of probationary period, the Apex Court opined that the services of the probationer if proposed to be terminated, the procedure prescribed by Regulation for the purpose needs to be complied. Paras 31, 32 and 33 are relevant:-
"31.) There is another aspect of the matter.
327.) Para 541 of the U.P. Police Regulations provides as under :
"541. (1) Recruits will be on probation for a period of two years, except that --
(a) those recruited directly in the Criminal Investigation Department or District Intelligence Staff will be on probation for three years, and
(b) those transferred to the Mounted Police will be governed by the directions contained in paragraph 84 of the Police Regulations.
If during the period of probation their conduct and work have been satisfactory and they are approved by the Deputy Inspector General of Police at the end of the period of probation for service in the force the Superintendent of Police will confirm them in their appointment.
(2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his services. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge.
(3) Every order passed by a Superintendent under sub-paragraph (2) above shall, subject to the control of the Deputy Inspector General, be final."
33.) Where, therefore, the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purpose, then the termination has to be brought about in that manner. The probationer-constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the reply is found to be convincing, he may not be deprived of his services."
The learned counsel for the petitioner has failed to bring on record any material to show that the services of the petitioner was terminated on the basis of misconduct. The only submission is that a first information report was lodged and, therefore, the petitioner's service has been dispensed with. The impugned order is innocuous order and does not say that the foundation for passing the order is lodging of F.I.R. rather the order has been passed on general unsuitability, it is not punitive or stigmatic in nature. This Court vide order dated 7.9.2000 had directed the competent authority to decide the representation of the petitioner, as the petitioner was acquitted in criminal case. Vide order dated 12.12.2000 the Superintendent of Police rejected the representation stating therein that the petitioner was charged for serious offence and has been acquitted under Section 392 I.P.C. on the basis of compromise and not on merits. The impugned order dated 21.3.1991 was passed after assessing the suitability of the petitioner and it was found that the petitioner was not suitable for the post of constable. The order dated 7.9.2000 has also been challenged by way of amendment.
The petitioner's appointment was purely temporary and he was not on probation, Regulation 541 is not applicable and his services could be terminated under the Rules of 1975.
For the reasons stated herein above, the writ petition is devoid of merits and is, accordingly, dismissed.
Order Date :- 13.2.2014 S.Prakash