Babu Singh Sengar v. State Of Uttar Pradesh

1. This is a petition under Article 226 of the Constitution. It prays that the order dated 30 August 1961 reverting the petitioner being in violation of Article 311 of the Constitution, be quashed.

2. The petitioner entered the police force of Uttar Pradesh as a constable in 1944 and was confirmed in 1947. He appeared and passed the departmental examination for head constables in 1948 and in 1949 was appointed as a head constable on a permanent post. The petitioner was selected as a candidate for training as sub-inspector at the Police Training College. He completed the training course and was declared passed in 1957. With effect from 1 January 1958 the applicant was appointed as a subordinate sub-inspector of police in the district of Agra. The counter-affidavit states that the petitioner was posted at Agra under the orders of the Deputy Inspector-General of Police, Agra range, in accordance with Para. 406 (a) of the Police Regulations. Paragraph 406 (a) deals with " civil police " as contra-distinguished from " armed police " and " mounted police " which are dealt with in Para. 406 (b) and 406 (c) respectively. The petitioner states that he was put on probation under Para. 534 of the Police Regulations. He was directed by the Senior Superintendent of Police to keep a training sheet in view of Para. 536 of the Police Regulations, and that he earned good entries in the training sheet.

3. On 16 April 1961 that petitioner was posted as a sub-inspector at the police station, Indergarh. He was investigating a case under the Arms Act. During the investigation he searched the house of Ramadin and his brother Hardayal. In this connexion Ramadin lodged a complaint on or about 21 April 1961 with the higher police officials against the petitioner. He alleged that the petitioner was threatening Ramadin and his brother to involve them in a false case and that he had kept his brother in custody and released him only on having been paid a sum of Rs. 80 as illegal gratification and on having been promised payment of another sum of Rs. 20 for it. He prayed that the matter be enquired into and proper action be taken.

4. The Superintendent of Police on 17 June 1961 issued a notice to the petitioner asking his explanation within seven days of its receipt, why a misconduct entry be not made in his training sheet and as to why his integrity certificate for 1961 be not withheld.

5. The petitioner submitted a detailed explanation to this notice on 25 June 1961. The Superintendent of Police, in his order dated 7 August 1961, discussed the matter carefully and ultimately came to the conclusion that the charge levelled against the petitioner was true. He observed that the petitioner's demand that the witnesses be recalled and that he be given an occasion to cross-examine them is not valid, because the enquiry is with respect to making the entry in the training sheet and with respect to the integrity certificate. He held that the explanation was not satisfactory and directed that the integrity certificate for 1961 be withheld and the proposed entry be made in the petitioner's training sheet.

6. The real shock came to the petitioner on 7 September 1961 when he received an order dated 30 August 1961. This order runs as follows:

Having been found unsuitable for the rank of sub-inspector of police, temporary officiating, sub-inspector Babu Singh Sengar is hereby reverted to his substantive rank of head constable with effect from the date when this order is served upon him.

7. The petitioner states that this order of reversion was passed because of the bad entry dated 7 August 1961. It was urged that the order on its face deolares the petitioner as unsuitable for the rank of sub-inspector of police. It puts a stigma on the petitioner and as such it had been passed as a measure of punishment. In this view the order amounts to reduction in rank and as the provisions of Article 311 of the Constitution had not been complied with, the order is void. In the next place it is submitted that the petitioner had a right to the rank of sub-inspector and as such he could not be reverted without complying with the provisions of Article 311.

8. Let us take the second question first. The petitioner urges that he was appointed a sub-inspector of police by way of promotion which accrued to him in due course according to the availability of that post. The promotion was, therefore, as a matter of right. For this the learned Counsel for the petitioner has mainly relied upon the Supreme Court decision in the case of P. C. Wadhwa v. Union of India 1964I L.L.J. 395. In that case P. C. Wadhwa who was an Assistant Superintendent of Police was given an officiating chance to be the Superintendent of Police and was reverted there from. Mudholkar, J, speaking for the majority, held that, on a consideration of the relevant rules applicable to the Indian Police Service, the transition of a member of the Police Service from the junior scale to the senior scale does not depend upon the consideration of the comparative merits ... of officers in the junior scale inter se, but only upon a consideration of their seniority. No element of selection is involved in promoting an Assistant Superintendent of Police to the Superintendent of Police. The whole scheme of the rules indicates that a person borne on the junior scale of pay has a right to hold a senior scale of pay depending upon the availability of a post and his seniority in the junior scale of pay.

Their lordships held that in such a situation if a person holding a post in the senior scale of pay, though in an officiating capacity, acquires a right to the post, and if he is found to be unfit to hold that post, his reversion to a post in the lower scale would amount to a reduction in rank.

9. The whole basis of the decision appears to be that the petitioner had a right to acquire the desired rank in due course and that the superior authorities have no discretion in the matter. If a person has such a right, then he can be reverted only for an administrative reason like the unavailability of post by reason of the incumbent coming back from leave, etc. If he is sought to be reverted for any other reason, the procedure provided in Article 311 of the Constitution will have to be gone through.

10. In this connexion the relevant rules for the appointment of sub-inspector may be noticed. Paragraph 406 (a) of the Police Regulations says:

Sub-inspectors, civil police, are appointed by Deputy Inspectors-General from the list of candidates who qualify at the prescribed cadets course at the Police Training College.

Paragraph 534 of the Police Regulations states that:

Sub-inspector of the civil police must pass through the Provincial Police Training College ...

From the date on which they are posted to districts as sub-inspectors, civil police, sub-Inspectors shall be on probation for a period of two years, on the expiry of which, if he considers them fit for permanent appointment, they may be confirmed by the Deputy Inspector General.

The relevant rules for the selection of candidates for training as sub-inspectors at the Police Training College provide that a selection board shall select candidates for admission to the training college. The rules which are contained in the Uttar Pradesh Police Training College Manual, Vol. III, states that selection will be made from the force as well as from amongst outsiders. The former will be called "the promoted cadets " and the latter " public cadets." It is also provided that the number of promoted cadets to be admitted should not be less than 30 per cent of the total and that such constables and head constables shall be eligible for selection as are less than 32 years in age and have more than three years' service and have passed the police training service examination.

11. The petitioner was one of the promoted cadets. He was selected to the training college and having passed the examination was posted, in accordance with Para. 534, as a sub-inspector on probation. Paragraph 537 of the Police Regulations runs as follows:

537. (1) The Daputy Inspector-General of Police may extend the period of probation of a candidate placed on probation under Para. 534, in individual oases up to a total period not exceeding one year. Any such extension shall specify the exact date up to which the extension Is granted.

(2) at any time during or at the end of period of his probation or before an order of his confirmation has been passed and come into effect, a probationer is found not to have made sufficient use of his opportunities or has otherwise failed to give satisfaction, the Deputy Inspector-General of Police may order

(i) his discharge, if he is appointed directly, or

(ii) his reversion, if he Is appointed by promotion:

Provided that in the case of discharge, he shall be appraised of the grounds of his discharge, given an opportunity to show cause against the order of discharge and his explanation in this behalf, If any, shall be duly considered before orders of discharge are passed by the Deputy Inspector-General of Police.

(3) A probationer discharged from the service during or at the end of the period of probation or at the end of the extended period of probation under Sub-pars. (2) shall not be entitled to any compensation.

(4) A probationer shall be confirmed in his appointment at the end of the period of probation or at the end of the extended period of probation if the Deputy Inspector-General of Police con-eiders him fit for confirmation and his integrity is certified.

12. At the end of the probationary period the Deputy Inspector-General of Police can confirm a probationer if he considers him fit therefor and his integrity is ... certified. But if the probationer is found not to have made sufficient use of his opportunities or otherwise failed to give satisfaction, he may be discharged, if he was appointed directly, or reverted, if he was appointed by promotion.

13. These rules, therefore, lead to the conclusion that a head constable is not entitled as of right to be appointed a sub-inspector In due course of his service. Mere seniority will not avail him. He has to be selected to the training college and if he passes the examination he is put on probation and if he is found fit and if his integrity is certified, then alone he is entitled to be confirmed. The Initial acquisition of the rank of the sub-inspector is, therefore, not automatic, nor is the ultimate confirmation. Both stages involve an element of selection. The superior authorities have to be satisfied as to his fitness before he gets a right to the rank. It cannot, therefore, be said that the petitioner was entitled as of right to the rank of sub-inspector.

14. In Ranendra Chandra Banerjee v. Union of India and Anr. A.I.R. 1963 S.C. 1552, the Supreme Court held that a probationer has no right to the post held by him and is liable to be discharged in accordance with the relevant rules and in that event Article 311 la not attracted.

15. On the other point it is submitted that no show-cause notice against the proposed action was ever served on the petitioner and as such the provisions of Article 311 of the Constitution were not complied with.

16. It is now well-settled that Government servants on probation are equally entitled to the protection of Article 311(2) of the Constitution, if the authorities take action against them for imposing one of the three punishments, i.e., dismissal, removal or reduction in rank. But this protection is available only where the order was made by way of punishment. In this respect the form of the Order is not conclusive and the Courts are entitled to look into the substance of the matter. But the Supreme Court has emphasized that an order, ex facie one of termination simpliciter, cannot be assumed to be one of dismissal, as a punishment. The onus to prove that such was the Intention of the authority must lie on the employee concerned. It is for him to show that the order was distinguished or camouflaged and in substance was one of punishment. See Union Territory of Tripura and Anr. v. Gopal Chandra Dutta Chowdhury 1963II L.L.J. 633.

17. It is then urged that the petitioner has been reverted owing to an imputation of misconduct. For this imputation an enquiry was held but did not comply with the provisions of Article 311(2) of the Constitution. Hence the order of reversion, being by way of punishment, amounted to reduction in rank and was hit by Article 311. The enquiry was held specifically for the purpose of placing on the petitioner's training sheet an entry of misconduct and for the purpose of withholding the integrity certificate. None of these two matters is within Article 311 and an enquiry held for these matters is not at all touched by Article 311. The fact that the enquiry was only for these matters is dear from the order of the Superintendent of Police, Fatehgarh, dated 17 June 1961, calling for the petitioner's explanation. It specifically said so. The ultimate order passed on 7 August 1961 also indicated that since the enquiry is being conducted for the aforesaid purpose, It was not necessary to re-examine the witnesses or to get them cross-examined. The ultimate order passed was also to the effect that the intended entry be made in the training sheet and the integrity certificate be withheld. The enquiry was thus held for the specified purposes. The object of the enquiry was not to inflict the punishment of dismissal, removal or reduction in rank. This enquiry, therefore, did not attract the provisions of Article 311 of the Constitution.

18. It is also urged that the ultimate order reverting the petitioner was impelled by this enquiry and by the misconduct entry made this entry being made only three weeks prior to the order of reversion. The entry in the training sheet was made by the Superintendent of Police who had the authority to do so. The order of reversion has been passed by the Deputy Inspector-General of Police. Under the Police Regulations the Deputy Inspector-General of Police has to satisfy himself as to the fitness of the petitioner. If he conducted any enquiry, even If it be an ex parte enquiry, for the purpose of satisfying himself as to the petitioner's fitness, the petitioner would have no right to be heard at any such enquiry; at any rate, the petitioner could have no grievance for it. The Deputy Inspector-General of Police would be entitled to look into the entire record and come to a conclusion. In Champaklal Chimanlal Shah v. Union Of India . 1964I L.L.J. 752, Wanchoo, J., speaking for the Supreme Court, clearly laid down that the Government may hold an enquiry for its own satisfaction to enable it to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary Government servant or a servant holding higher rank temporarily to which he has no right. In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a Government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of Government, though usually, for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard, for the enquiry is merely for the satisfaction of the Government and it is only when the Government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the Government servant gets the protection of Article 311.

19. The enquiry In the instant case was not a formal enquiry conducted with a view to impose one of the three punishments mentioned in Article 311. It was not even held for the purpose of deciding whether the petitioner should be confirmed in his rank or not. That was an Independent enquiry. It was conducted for a distinct purpose. Simply because that enquiry was held shortly prior to the order of reversion, it cannot automatically be assumed that that enquiry resulted In the order of reversion. Even if that enquiry did have an effect on the ultimate order of reversion, no violation of Article 311 had taken place because the object of the enquiry was not to inflict one of the three punishments mentioned In Article 311.

20. It was next urged that the order of reversion stated that the petitioner was found unsuitable for the rank of sub-inspector of police and that this reason expressly cast a stigma on the petitioner and as such it was an order of reduction in rank. The Deputy Inspector-General of Police has to be satisfied as to the fitness of the probationer before confirming him. The use of the word " unsuitable" does not, in my opinion, cast any stigma on the petitioner. It reflects the mind of the authority that the petitioner has not been found fit. It cannot, therefore, be said that the order was penal in its nature. Learned Counsel for the petitioner relied upon the decision of the Supreme Court In the case of State of Bihar v. Gopi Kishore Prasad 1960I L.L.J. 577. The third proposition laid down therein by Sinha, C. J., has, in Jagdish Mitter v. Union Of India . 1964I L.L.J. 418 been confined by the Supreme Court to be applicable to a case where the order of discharge on its floe attributed a stigma to the probationer and where the order of discharge was preceded by a formal enquiry. Similarly the case of State of Orissa v. Ram Narayan Dass 1961I L.L.J. 552 does not help the petitioner's case. There the order of discharge did make adverse comments on the probationer's conduct and said that It was not good retaining him in service. The Supreme Court construed that order to be one of discharge simpliciter.

21. The learned Counsel also relied upon S. Sukhbans Singh v. State Of Punjab . 1963I L.L.J. 671. On p. 426 of the judgment of the Supreme Court in Jagdish Mitter case 1964I L.L.J. 418 (vide supra), it has been held that this, cage is an authority for the proposition that the order of reversion was in that case mala fide.

22. The case of Madan Gopal v. State of Punjab 1964I L.L.J. 68 is illustrative of the class of cases where a formal enquiry is held for purposes of inflicting punishment on the temporary employee. For that reason it was held that the form of the order was immaterial. In substance it was an order of dismissal.

23. The various contentions raised in support of this petition, therefore, fall.

24. The petition is dismissed, but, in the circumstances of the case, without any order as to costs.