ORDER Mootham, C.J.
1. This is a petition under Article 226 of the Constitution which has been filed in the following circumstances:
The petitioner was formerly in the police service in Sind, now West Pakistan. In 1947, at the time of partition he came to the United Provinces, and on the 20th August, 1949, he was appointed a Sub-Inspector in the United Provinces Police on probation for two years from the date of joining the force. This he did on the 31st August, 1949. The letter of appointment read as follows:--
"Appointment of Displaced persons as S. Is. in U. P.
You are appointed as Sub-Inspector of Police in the scale of Rs. 120-6-180-E. B. 10-200 plus usual dearness allowance admissible under the rules and posted to Unnao in a vacancy. You should report to the Superintendent of Police, Unnao, at once.
No. V-1530-47, dated August 20, 1949.
Copy forwarded to the Supdt. of Police, Unnao for information and necessary action. The candidate will be appointed on probation for a period of 2 years and confirmed in his appointment by the Range D.I.G. if found suitable vide para 537 P. Rs."
On the 21st August 1951 the petitioner was summarily discharged from the service by the Deputy Inspector-General, Central Range, but, on appeal to the Inspector General of Police the latter directed that the petitioner be reinstated and that an enquiry be made into his conduct in accordance with para 537 of the Police Regulations. The petitioner thereafter rejoined the service and on the. 28th May of the same year a notice was served upon him under para 537 calling upon him to submit an explanation with regard to six charges which it appears were enumerated in that notice. The notice for some reason which is not very clear, has not been filed; but it appears that toe first two charges related to the petitioner's failure to comply with certain training orders. The remaining charges were more serious. Charge No. 3 was in relation to a woman with regard to whom it appears to have been alleged that the petitioner did pairivi on her behalf in a case under Section 19 (f) of the Arms Act. Charge No. 4 was that the petitioner had demanded a bribe from one Ram Bharosey for not proceeding with a case against him under Sections 107 and 117 of the Code of Criminal Procedure, charge No. 5 that he had harassed one Ganga Prasad and others in connection with an investigation under Section 376 of the Indian Penal Code and charge No. 6 that he had extorted a sum of Rs. 80 from one Sita Ram. The Deputy Inspector General by an order dated the 11th December 1952, accepted the petitioner's explanation with regard to the first and second charges but not in respect of the remaining charges which he held to be proved; and he ordered the discharge of the petitioner under para 537 with immediate effect. The petitioner appealed against this order to the Inspector General of Police. The Inspector General dismissed the appeal by an order, dated the 2nd May, 1933. The petitioner then sent a petition for mercy to the State Government and was not informed of its rejection until the 28th March, 1955. Notice of the present petition was served by the petitioner on the respondents on the 25th July following. When this matter came before me a preliminary objection was taken that the petition should not be entertained, as it was belated. This objection I however overruled by my order dated the 13th September last.
2. I have now heard the petition on its merits and learned counsel for the petitioner has advanced two contentions first that the provisions of para 537 of the Police Regulations have no application to the petitioner and, secondly that, if that regulation is applicable, there has been no compliance with the mandatory provisions of Article 311(a) of the Constitution.
3. Paragraph 537 is in Chap. XXXVI of the Police Regulations. This chapter provides for the training of sub-inspectors and para 534 provides that sub-inspectors of the Civil Police must pass through the Provincial Police Training College. The provisions of this chapter appear to contemplate that the sub-inspectors to whom it refers will be either such persons as have been appointed sub-inspectors by direct recruitment of officers of lower rank who have been specially selected for the police Training College course. Paragraph 537 then provides that a Sub-Inspector on probation may be confirmed in his appointment by the Deputy Inspector General after the expiry of the probationary period of two years. It further provides that a Deputy Inspector General may on his own authority discharge the probationary Sub-Inspector who was selected for the Police Training College course by direct recruitment, but that, inter alia, the probationary Sub-Inspector against whom an order of discharge is likely to be passed must be supplied in writing with the specific complaints and grounds on which he deserves punishment and that he should be called upon to show cause why he should not be so punished.
4. The petitioner's first contention is that as he had previously been a Sub-Inspector of Civil Police in Sind Chapter XXXVI of the Police Regulations, particularly the provisions of para 537, cannot apply to him. He does not deny that he was appointed on probation for two years, and although he was a sub-inspector of police in another province, it appears to me that he was at the time of his appointment treated as a person selected as a probationary sub-inspector by direct recruitment.
It is said that there is no reference in the first part of the letter of appointment, dated the 20th August, 1949, to his appointment being on probation, but the letter must be read as a whole and it is, in my opinion, clear from the endorsement to this letter (which was part of the letter sent to the petitioner) that the petitioner Was aware that his appointment was not only on probation, as he admits, but that para 537 to the extent that it was relevant would apply to his case. The petitioner's appeal against the earlier order of discharge of the 21st August, 1951, it is to be observed, was allowed on the ground that the provisions of para 537 had not been followed.
5. The second contention is that Article 311(2) has been infringed, inasmuch as the petitioner was not afforded an opportunity of showing cause against the action proposed to be taken against him. It is common ground that no opportunity was afforded to the petitioner of showing cause against the order of the nth December, 1952; but it is contended by the respondents that this was unnecessary as the petitioner was neither dismissed nor removed from the police service within the meaning of Article 311(2) and that the provisions of that clause would not in any case apply to an officer on probation.
6. Article 311(2) would be applicable in the present case if the petitioner (a) was a member of the Civil Service of the State and (b) has been dismissed or removed. It has not been argued before me that the petitioner was not, although on probation, a member of a State Civil Service. The question then is whether he was dismissed or removed from the service by the order of the nth December, 1952. By that order he was in terms discharged from service; but the use of the word 'discharged' is not in my opinion conclusive.
It is the substance of the matter which must be looked at, and if in fact the petitioner had been removed by Government from its service as a punishment the use of the word 'discharge' would not absolve the Government from complying with the provisions of Article 311(2). The question is whether the termination of the petitioner's service brought about by the order of discharge is tantamount to his removal from service, and the answer to that question will depend, as was pointed out in Shyam Lal v. State of Uttar Pradesh, 1955-1 SCR 26 at p. 41: (AIR 1954 SC 369 at p. 374) (A), upon whether the nature and incident of the action resulting in removal are to be found in the action of discharge. In that case Das, J. as he then was delivering the judgment of the Supreme Court said:
"There can be no doubt that removal, generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of the same misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus found and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the officer."
7. Paragraph 537 of the Police Regulations appears to envisage the discharge of a probationer during the probationary period as a punishment. The second sentence of para. 537 provides that "Any probationary sub-inspector against whom an order of discharge or reversion is likely to be passed, will be supplied in writing with the specific complaints and grounds on which he deserves punishment and he should be called upon to show cause why he should not be so punished." It may be that this provision would not be applicable in a case in which it is proposed to discharge a probationary for some reason other than a defect in his character or conduct as, for example, if his health or his eye-sight fails. But that is not the case here. Serious charges against the petitioner were found to be established and it is on that ground that it was decided to dispense with his services. So much is made clear in the order of discharge itself.
8. It has been argued on behalf of the respondent that the question of punishment does not arise inasmuch as the power which the Deputy Inspector General of Police exercises under para 537 is merely that the terminating the services of a probationer whose retention in the service is not in the public interest, and emphasis is laid down on the fact that the order which is made under that paragraph is not one of dismissal or removal but merely of discharge. There is considerable force in this submission but, as I have pointed out, there are Words in the paragraph which appear clearly to show that an order of discharge is regarded as a punishment, and it is this provision taken in conjunction with the facts established in the present case which Incline me to the view that the services of the petitioner were dispensed with as a punishment and that, therefore, Article 311(2) is attracted.
9. Several cases were cited in the course of argument on behalf of the petitioner. Tribhuwannath Pandey v. Government of the Union of India, AIR 1953 Nag 138 (B) was a case in which the petitioner was an Extra Assistant Commissioner of the Central Province Service, Executive Branch, on probation. During the probationary period his services were terminated on the ground that his work had been unsatisfactory. The Court held that as there was a provision in the rules regulating his service to the effect that the discharge of a probationer on account of his unsuitability for the service amounted to removal or dismissal within the meaning of that rule, the provisions of Article 311 were attracted and that as the petitioner had not been given a reasonable opportunity of showing cause against the action proposed to be taken against him the order directing that he be removed was set aside.
A similar conclusion was reached by the same High Court in Dongarsingh Narayansingh v. State of Madhya Pradesh, AIR 1955 Nag 107 (C). In that case the petitioner was a probationary Sub-Inspector of police who had been discharged from service on account of his unsatisfactory conduct. It appears that there was a specific provision in the relevant police Manual that the removal of a probationer amounts to removal or dismissal within the meaning of Rule 228 of the Police Manual, and on this ground the Court held that the provisions of Article 311(2) were applicable. In Gopi Kishore Prasad v. State of Bihar, (S) AIR 1955 Pat 372 (D), the Court had to consider whether the petitioner, who had been appointed to the Bihar Subordinate Civil Service on probation and while on probation had been discharged from service, was entitled to the protection afforded by Article 311(2).
The Court regarded the matter as one of some difficulty, but it answered the question in the affirmative on the ground that the explanation to Rule 49 of the Civil Service (Classification, Control and Appeal) Rules as in force in the State of Bihar stated that the discharge of a probationer whether for some specific fault or on account of his unsuitability for the service amounted to removal or dismissal within the meaning of that rule. These cases are therefore distinguishable from that which is before me as my attention has not been drawn to any specific provision in the Police Regulations which says that the discharge of a probationer sub-inspector shall amount to removal or dismissal. I base my judgment on the implication in paragraph 537 that an order of discharge is a punishment and if it is a punishment I think that the provisions of Article 311(2) are attracted. It has not been argued before me that the word 'punishment' used in these rules has not its ordinary meaning.
10. For these reasons I allow the petition and set aside the orders of the Deputy Inspector General and the Inspector General of Police dated respectively the 11th December, 1952, and the 2nd May, 1953.