Delhi High Court
Gd Constable Anil vs Union Of India And Ors. on 21 July, 2015
$~9 & 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 21.07.2015
+ W.P.(C) 6107/2013
GD CONSTABLE ANIL ..... Petitioner
Through : Ms. Jyoti Singh, Sr. Advocate with Sh.
Sh. A.K. Trivedi, Sh. Padma Kumar, Ms. Tinu
Bajwa, Sh. Amandeep Joshi, Sh. Sameer Sharma
and Sh. Ashok. K. Vij, Advocates.
versus
UNION OF INDIA & OTHERS ..... Respondents
Through : Ms. Barkha Babbar with Ms. Dipanjali
Tyagi, Advocates, for UOI.
W.P.(C) 3242/2014
SONU YADAV ..... Petitioner
Through : Ms. Jyoti Singh, Sr. Advocate with Sh.
Sh. A.K. Trivedi, Sh. Padma Kumar, Ms. Tinu
Bajwa, Sh. Amandeep Joshi, Sh. Sameer Sharma
and Sh. Ashok. K. Vij, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through : Sh. Rajesh Gogna, CGSC with Ms. L.
Gangmei, Advocate, for Respondent Nos. 1 to 6.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
S.RAVINDRA BHAT, J. (OPEN COURT)
1. The petitioners challenge the order of 17.05.2013 discharging
W.P.(C)6107/13, 3242/14 Page 1
them from the Sashastra Seema Bal (SSB). The impugned order
(hereafter referred to as "discharge order") invoked Rule 16 of the
Sashastra Seema Bal Rules, 2009.
2. The brief facts are that the petitioners were inducted into the
SSB and sent for 44 weeks' training at Debendranagar, Assam.
During the period of training, in January 2013, they were granted
mid-term break for 14 days. After completion, they boarded Guwahati
Sampark Kranti Express on 29.01.2013. When the train halted at
Mughal Sarai Railway Station, the petitioners were de-boarded, after
being informed that two First Information Reports (FIRs), i.e.
34/2013 and 34(A)/2013 were lodged. These alleged commission of
offences punishable under Sections 354/307 IPC. The petitioners
were arrested but granted bail on 09.02.2013. The criminal case has
not ended. After the petitioners reported for duty on 11.02.2013, a
Court of Inquiry was conducted. This culminated in an order which
led to Summary Force Court proceedings which resulted in
imposition of two months' imprisonment in force custody and
forfeiture of pay and allowance for 14 days. On 17.05.2013, the SSB
authorities opined that the imposition of penalty by Summary Force
Court proceedings was not in accordance with law since the
allegations pertained to commission of criminal offence of which
cognizance had been taken by the competent court. In the light of the
provisions of the Sashastra Seema Bal Act, 2007, which mandate that
in such eventuality, the trial of offences pending before the competent
court could be taken over - which was not done, the entire
proceedings culminating in the imposition of penalty was illegal. On
W.P.(C)6107/13, 3242/14 Page 2
the same day, the respondents issued the discharge order; the
discharge order in respect of both the petitioners (Anil and Sonu
Yadav) inter alia stated as follows:
In respect of Anil:
"AND WHEREAS, in accordance to the powers available
to the undersigned as per Section 132 of SSB Act, 2007 read
with Rule 185 of SSB Rules, 2009, I have annulled the
proceedings of SFC vide order
No.08/JAG/FTR-GHY/13/7810-19 dated 17.05.2013 on the
ground that the said proceedings were illegal as the SFC
has been convened without taking over the case from
concerned Police/Judicial authorities for invoking the
concurrent jurisdiction available to the Force Courts.
NOW THEREFORE, in terms of clause-4 of Part-II
(Condition of Service) of Appendix-I under Rule 16 of SSB
Rules, 2009, I the undersigned hereby order to discharge
RCT/GD constable No.120793943 Anil from service from
the date of receipt of this order as he has failed to conduct
himself as an efficient member of the Force."
XXXXXX XXXXXX
In respect of Sonu Yadav:
"AND WHEREAS, in accordance to the powers available
to the undersigned as per Section 132 of SSB Act, 2007 read
with Rule 185 of SSB Rules, 2009, I have annulled the
proceedings of SFC vide order
No.08/JAG/FTR-GHY/13/7810-19 dated 17.05.2013 on the
ground that the said proceedings were illegal as the SFC
has been convened without taking over the case from
concerned Police/Judicial authorities for invoking the
concurrent jurisdiction available to the Force Courts.
NOW THEREFORE, in terms of clause-4 of Part-II
W.P.(C)6107/13, 3242/14 Page 3
(Condition of Service) of Appendix-I under Rule 16 of SSB
Rules, 2009, I the undersigned hereby order to discharge
RCT/GD constable No.120796498 Sonu Yadav from service
from the date of receipt of this order as he has failed to
conduct himself as an efficient member of the Force."
3. The petitioners contend that the impugned order is in a sense a
stigmatic one because it relies upon the materials which formed the
basis of abortive summary court proceedings. Having once decided to
initiate disciplinary proceedings and even continue with the process
up to the imposition of penalty, the respondents could not legitimately
have sought recourse to the power to discharge or terminate them
simpliciter. It is argued secondly that even though the petitioners were
indicted for the alleged criminal offence in that they have been named
in the charge sheet before the police, their case is no different from
eight others who are continuing in the force. Characterizing the
respondents' position as discretionary, learned counsel submitted that
in similar circumstances where other SSB personnel also alleged to
have been involved in some incident were discharged, this Court
directed their reinstatement. Learned counsel cites the judgment of the
Court in W.P.(C) 4804/2014 - Sonu Kumar v. UOI and Ors., (decided
on 28.11.2014). Lastly, it was contended that the SSB cannot rely
upon Rule 16 of the Sashastra Seema Bal Rules, 2009, to invoke the
power of discharging a personnel simpliciter. Alternatively, it is
submitted that the reference to Clause 4 of the Conditions of Service
contained in the appointment letter is also of no consequence.
4. Learned counsel for the respondents submits that the power to
discharge any personnel in the SSB who is not even a probationer was
W.P.(C)6107/13, 3242/14 Page 4
validly invoked in the circumstances of the case. It is highlighted that
even though the proceedings were drawn and resulted in imposition of
penalty by Summary Force Court, the fact remained that they were
without jurisdiction as the entire proceedings had to be taken over
from the criminal court in accordance with law. In such
circumstances, the material which formed the basis of that process or
proceedings always remained and could be validly considered. These
were in the form of serious allegations of misbehaviour by the
petitioners, among other SSB personnel who were traveling in the
train. The misbehaviour in question was directed against some NCC
women cadets who were co-passengers.
5. Rules 15 and 16 of the SSB Rules, 2009 reads as follows:
"15. Probation.-- (1) A person appointed through direct
recruitment as an officer, subordinate officer, under officer
or enrolled person shall be on probation for a period of two
years.
(2) The Central Government in the case of officers and the
authority prescribed in rule 14, in the case of subordinate
officers, under officer and enrolled persons may, for the
reasons to be recorded in writing, extend the period of
probation for such further period or periods not exceeding
two years or may during the period of probation, terminate
his services without assigning any reasons.
(3) The provision of sub-rules (1) and (2) shall also be
applicable to a person on his initial promotion as an officer
and persons who do not complete the period of probation
satisfactorily are liable to be reverted to their former rank.
16. Procedure for enrolment, mode of enrolment and other
W.P.(C)6107/13, 3242/14 Page 5
matters connected therewith.-- (1) Before a person is
enrolled as a member of the Force, the Commandant of a
unit or any other officer who may be detailed as an
enrolling officer by the Director-General, shall read and
explain to him, or cause to be read and explained to him in
his presence, the conditions of service of the post to which
he is to be enrolled and shall put to him the questions
contained in the form of enrolment as set out in Appendix I
and shall, after having cautioned him that if he makes a
false answer to any such question he shall be liable to
punishment under the Act, record or cause to be recorded
his answer to each such question.
(2) If, after complying with the provisions of sub-rule (1)
and such other directions as may be issued in this behalf by
the Director-General from time to time, the enrolling officer
is satisfied that the person desirous of being enrolled, fully
understands the questions put to him and consents to the
condition of service, and if the said officer is satisfied that
there is no impediment, he shall sign and shall also cause
such person to sign the enrolment form and such person
shall thereupon be deemed to be enrolled.
(3) (a) Every person enrolled as a member of the Force
under sub-rule (2) shall be administered an oath or
affirmation in the form set out in Appendix I.
(b) The oath or affirmation shall as far as possible be
administered by an officer not below the rank of
Commandant or an officer authorised in writing by such
officer in this behalf.
(c) The oath or affirmation shall be administered when the
person to be attested has completed his training."
6. The facts reveal that the initial Summary Force Court
proceedings, that resulted in the imposition of two months'
W.P.(C)6107/13, 3242/14 Page 6
imprisonment in force custody and forfeiture of pay and allowance for
14 days, was correctly considered, on 17.05.2013- by the SSB itself to
be irregular and without jurisdiction, given that the allegations were
seized of by the competent criminal court which had taken cognizance
of the offence. Quite correctly, the SSB cancelled those proceedings
and the penalty. The question is whether the SSB ought to have
initiated a fresh domestic proceeding, to determine the misconduct.
The petitioners would urge that the SSB cannot; the latter asserts to
the contrary.
7. The conditions of service which the petitioners agreed to in the
contract which they entered into with the SSB at the time of
engagement inter alia states as follows:
"4. You are liable to be discharged during the first year
of the service if you are not likely to become an efficient
member of the Force."
This is undeniable, because the condition forms part of the
appointment letter/order, which was accepted by the petitioners.
It is evident that the events which preceded the petitioners'
termination cast their shadow. They were arrested and later tried
by the Summary Force Court. That proceeding was insupportable
in law and set aside. The contention that the material which
formed the basis of that proceeding could not have been taken
into account has to be seen in the context of whether the
foundation of the termination order is misconduct, or if it is
merely unfitness of the petitioners to hold the post.
W.P.(C)6107/13, 3242/14 Page 7
8. It is established law that a probationer does not possess the
right to hold her or his post and can be terminated from
employment in terms of the rules (Purshottam Lal Dhingra v
Union of India AIR 1958 SC 826). The decision in State of Bihar
v Gopi Kishore Prasad AIR 1960 SC 689 is authority for the
proposition that termination of employment of a person holding a
post on probation without any enquiry whatsoever cannot be said
to deprive him of any right to a post and is not penal. However, if
inquiry is held without following full procedure, and that forms
the basis of termination, the discharge (or termination) is penal
and stigmatic. It was also observed that
"But, if the employer simply terminates the services of the
probationer without holding an enquiry and without giving
him a reasonable chance of showing cause against his
removal from service, the probationary civil servant can
have no cause of action, even though the real motive
behind the removal from service may have been that his
employer thought him to be unsuitable for the post he was
temporarily holding, on account of his misconduct, or
inefficiency, or some such cause."
Shamsher Singh v. State of Punjab AIR 1974 SC 2192 is authority for the
proposition that motive for a termination order is irrelevant. If the
foundation of the order is some misconduct, its seemingly innocuous nature
does not protect it; the court can declare it to be punitive.
9. In Dipti Prakash Banerjee v. Satvendra Nath Bose National
Centre (1999) 3 SCC 60 one of the questions which arose for consideration
before the Supreme Court was in what circumstances, the termination of a
W.P.(C)6107/13, 3242/14 Page 8
probationer's services can be said to be founded on misconduct and in what
circumstances could it be said that the allegations were only the motive. The
Court observed as under:-
"If findings were arrived at an inquiry as to misconduct, behind the
back of the officer or without a regular departmental enquiry, the
simple order of termination is to be treated as 'founded' on the
allegations will be bad. But if the inquiry was not held, no findings
were arrived at and the employer was not inclined to conduct an
inquiry 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. Similar is the position
if the employer did not want to inquire into the truth of the allegations
because of delay in regular departmental proceedings or he was
doubtful about securing adequate evidence. In such a circumstance,
the allegations would be a motive and not the foundation and the
simple order of termination would be valid."
In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical
Sciences (2002) 1 SCC 520 it was held that:
"Generally speaking when a probationer's appointment is terminated
it means that the probationer is unfit for the job, whether by reason of
misconduct or ineptitude whatever the language used in the
termination order may be. 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."
10. Clearly, motive for an order is irrelevant. Although in this case, it
would appear that the SSB relied on materials which might point to the
petitioner's misconduct,- especially in view of the aborted Summary
Security Force Court proceeding- in reality, the order was non-stigmatic.
The material seen, i.e the petitioners' arrest, was only for the purpose of
W.P.(C)6107/13, 3242/14 Page 9
ascertaining their suitability rather than to see whether they were guilty of
misconduct. Being members of a disciplined force, their conduct had to be
blameless throughout their career. The incident which led to their arrest
could legitimately be seen as bringing disrepute to the Force they belonged.
Consequently, the SSB's recourse to the power to terminate their services,
simplicitor was not stigmatic or punitive.
11. In view of the above discussion, we are of the opinion that the
impugned termination/discharge order cannot be set aside on the grounds
urged in these proceedings. It is, however, open to the petitioners to
represent to the respondents in the eventuality of their being acquitted of the
charges. In case such a representation is received by the respondents/SSB
the same shall be duly considered and their decision communicated to the
petitioners as expeditiously as possible, preferably within eight weeks of
receipt of their representations. The writ petitions are dismissed, but in terms
of the above directions; there shall be no order as to costs.
S. RAVINDRA BHAT, J
DEEPA SHARMA, J
JULY 21, 2015
'ajk'
W.P.(C)6107/13, 3242/14 Page 10
