Patna High Court
Puja Kumari And Anr vs The State Of Bihar And Ors on 3 May, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.23925 of 2018
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1. Pratima Kumari, D/o Shashi Kant Tiwari, R/o Village- Bhuwal, P.O.-
Chilharuan, P.S.- Dinara, District- Rohtas, Pin- 802213.
2. Pratibha Kumari, D/o Pankaj Kumar, R/o Village- Barki Dhava, P.O. P.S.-
Ekangar Sarai, District- Nalanda, Pin- 801301.
3. Anshu Kumari, D/o Madan Kumar Singh, R/o Vill- Chhitrauli, P.O.- Piroi,
P.S.- Goraul, District- Vaishali, Pin- 844114.
4. Sadhna Kumri, D/o Subhas Prasad, R/o Vill- Bichlikha, Ndakpar, R/o
Biharsharif, Nalanda, P.O. P.S.- Bihar Sharif, District- Nalanda, Pin- 803101.
5. Puja Kumari, D/o Kapildev Prasad Yadav, R/o Vill- Belahitar, P.O.- Sandh,
P.S.- Sirdala, District- Nawada, Pin- 801527.
6. Priyanka Kumari, D/o Arjun Singh, R/o Vill P.O.- Tetrarh, P.S. Akorhi Gola,
District- Rohtas, Pin- 821301
7. Saloni Kumari, D/o Suresh Singh, R/o Vill- Dhenuadih, Post- Kesath, P.S.-
Nawanagar, District- Buxar, Pin- 802125.
8. Nilkamal Kumari, D/o Awdhesh Sah, R/o Vill Post- Ekwari, P.S. Sahar,
District- Bhojpur, Pin- 802208.
9. Vinti Kumari, D/o Birendra Prasad, R/o Vill P.O.- Satwar, P.S.- G.B. Nagar
Tarwara, District- Siwan, Pin- 841439.
10. Priyanka Kumari, D/o Jitendra Sharma, R/o Vill- Ankupur, P.O.- Belkhara,
P.S.- Rampur Chauram, District- Arwal, Pin- 804428.
11. Isha Gupta, D/o Ranjan Prasad Gupta, R/o Near Devichak, Fatwah Patna,
P.O. P.S.- Fatwah, District- Patna, Pin- 803201.
12. Julee Kumari, D/o Ajay Kumar Singh, R/o Vill- Bakhtari, P.O.- Jalpura, P.S.-
Karpi, District- Arwal, Pin- 804401
13. Kumari Khushbu Sinha, D/o Chandramani Prasad, R/o Vill- Mahadev
Bigha, P.O.- Belar, P.S.- Kashichak, District- Nawada, Pin- 805130.
14. Resham Kumari, D/o Shobhnath Singh, R/o Vill- Chhotaki Haradia, P.O.-
Hardia, P.S.- Jagdishpur, District- Bhojpur, Pin- 802152.
15. Kumari Sonika, D/o Yogendra Kumar, R/o Vill Post- Herudiyara, P.S. Kasim
Bazar, District- Munger, Pin- 811201.
16. Suman Kumari, D/o Surendra Kumar, R/o Vill- Bhualtar, P.O.- Kadhar, P.S.-
Kawakol, District- Nawada, Pin- 805106.
17. Kumari Punam, D/o Satyendra Thakur, R/o Vill- Simri Bichan, P.O.- Karma
Lahank, P.S.- Tandwa, District- Aurangabad, Pin- 824302.
18. Sita Kumari, D/o Omprakash Sahni, R/o Vill- Deshari, P.O.- Deshari, P.S.-
Deshari, District- Vaishali, Pin- 844504.
19. Anjali Kumari, D/o Nagendra Kumar Singh, R/o Vill P.O.- Dadar, P.S.-
Mohania, District- Bhabhua, Pin- 821109
20. Ranju Kumari, D/o Madan Kumar, R/o Vill- Banshi Bigha, P.O.- Hurka,
P.S.- Tilouthu, District- Rohtas, Pin- 802112.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
21. Niharika Kumari, D/o Shashi Bhushan Thakur, R/o Vill- Basuri, P.O.-
Saidpur Pusa, P.S.- Chakmeshi, District- Samastipur, Pin- 848125
22. Saniya Begum D/o Md. Nasim, R/o Vill P.O.- Ghorghat, P.S.- Sultanganj,
District- Bhagalpur, Pin- 811211.
23. Sinny Kumari, D/o Shiv Kumar Pd. Singh, R/o Vill- Pinjari, P.O.- Pinjari,
P.S.- Barbigha, District- Sekhpur, Pin- 811105.
24. Suruchi Kumari, D/o Arjun Singh, R/o At P.O.- Rudauli, P.S.- Bachhwara,
District- Begusarai, Pin- 851111
25. Sweta Bharti, D/o Sunil Kumar, R/o Vill- Khgaur, P.S.- Lakhisarai, Post-
Kiul, District- Lakhisarai, Pin- 811301
26. Archana Kumari, D/o Nagendra Singh, R/o Vill- Selgadh, P.O.- Saidabad,
P.S. Ranitalab Kanpa, District- Patna, Pin- 801104
27. Maya Devi, D/o Ram Naresh Singh, R/o Vill- Dhovdiha, Post- Taraon, P.S.-
Nasriganj, District- Rohtas, Pin- 821310
28. Anamika Kumari, D/o Mahendra Singh, R/o Mohalla- Lakhibagh, Dalmiya
Compound, P.O.- Buniyadganj, P.S. Mufshil, District- Gaya, Pin- 823003
29. Anshu Kumari, D/o Ajay Choudhary, R/o Vill Post- Udaypur, P.S.-
Sanjhauli, District- Rohtas, Pin- 802220.
30. Shital Rani, D/o Ashok Paswan, R/o Vill- Situhar, P.O.- Haveli Kharagpur,
P.S. Haveli Kharagpur, District- Munger, Pin- 811213.
31. Kumari Sushmita Sinha, D/o Gauri Shankar Prasad, R/o Vill- Salaiya, P.O.-
Salaiya, P.S. Kotihi, District- Gaya, Pin- 824210.
32. Beauty Kumari, D/o Sushil Sharma, R/o Vill P.S. P.O.- Rampur Chauram,
District- Arwal, Pin- 804402.
33. Tanuja Kumari, D/o Braj Bhushan Prasad, R/o Vill- Bairichak, P.O.-
Daulatpur, P.S. Masaurhi, District- Patna, Pin- 804452.
34. Pinki Kumari, D/o Alok Kumar, R/o Vill- Adiya, P.O. Barharwa Kala, P.S.
Kotwa, District- East Champaran, Pin- 845437.
35. Nibha Kumari, D/o Arbind Kumar, R/o Vill- Dhobi Bigha, P.O. P.S.-
Asthawan, District- Nalanda, Pin- 803107.
36. Punam Kumari, D/o Ram Pravesh Prasad, R/o Vill- Dhamoui Tola,
Makadumani, P.O.- Nawasichak, P.S.- Dhanarua, District- Patna, Pin-
804451
37. Priyanka Kumar, D/o Pramod Prasad, R/o Vill- Dhousa Bigha, P.O.- Dhousa
Dih, P.S.- Sheikhpura, District- Sheikhpura, Pin- 811105.
38. Rani Kumari, D/o Shankar Kumar, R/o Vill- Mudheri, P.O.- Mujaffarganj,
P.S. Haveli Kharagpur, District- Munger, Pin- 811213.
39. Shobhwanti Kumari, D/o Ramnath Singh, R/o Vill- Bhardokhara, P.O.-
Bhaookhara, P.S. Darigaone, District- Rohtas, Pin- 821113.
40. Namrata Kumari, D/o Binod Yadav, R/o Vill- Srirampur, P.O. Akbarnagar,
P.S. Akbarnagar, Dist- Bhagalpur.
41. Sneha Kumari, D/o Sukh Nandan Yadav, R/o Vill Post- Purana Bhojpur,
P.S.- Dumraon, District- Buxar.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
42. Kajal Raj, D/o Janardan Bhagat, R/o Vill- Gangalday, P.O. P.S.- Kahalgaon,
District- Bhagalpur.
43. Suchita Kumari, D/o Umesh Prasad, R/o Vill- Bhagwatipur, P.O.- Neora,
P.S.- Shahpur, District- Patna.
44. Soni Kumar, D/o Surydev Mehta, R/o Vill- Bhorambagh, District- Nawada,
Post- Itpakwa, P.S. Kwacool, District- Nawada, Pin- 801506.
45. Alpana Kumari, D/o Mahendra Prasad, R/o Vill - Imamganj, P.O.-
Shankarpur Imamganj, P.S.- Khidi Mod, District- Patna, Pin- 804426.
46. Sadhana Kumari, D/o Bhupendra Narayan Gupta, R/o Vill- Tulsiyahi, Post-
Bhatouni, P.S. Simari, Bakhtiyarpur, District- Saharsa, Pin- 852127.
47. Rupa Kumari, D/o Palat Mandal, R/o Vill- Raghopur Balat, P.O.- Rampatti,
P.S. Rajnagar, District- Madhubani, Pin- 847236.
48. Ritu Kumari, D/o- Kuber Pandit R/o Village- Nawalpur Ke Tola, P.O.
Narpaliya, P.S. Daudpur, District- Chapra, Pin- 841313.
49. Rukmani Kumari, D/o- Janardan Rai R/o Village- Chhokata Chanda, P.S.
Koelwar, District- Bhojpur, Pin- 802160
50. Priyanka Kumari, D/o- Milind Puri R/o Village- Bangali Bigha, P.S.
Chandauti, District- Gaya.
51. Upasana Kumari, D/o- Krishna Deo Singh R/o Village- North Rajendra
Nagar, P.S. Chitragupta Nagar, P.O.- Sanhauli, District- Khagaria
52. Pushpa Kumari, D/o- Madan Mohan Pandit R/o Village- Bholabigha, P.O.-
Bhadurpur, P.S. Rajauli, District- Nawada, Pin- 805125
53. Juli Kumari, D/o- Deven Prasad R/o Village- Poari, Post- Poari, P.S.
Harnaut, District- Nalanda.
54. Anand Nutan, D/o-Pradeep Kumar R/o Village- Ghuthiyara, P.O.- Pathadda,
P.S.- Fullidumar, District- Banka, Pin- 813101.
55. Preeti Kumari Yadav @ Preeti Kumari, D.o- Jitendra Yadav R/o Village-
Masudha, P.O.- Jaijor, P.S. Andar, District- Siwan, Pin- 841231.
56. Jyoti Kumari D/O- Shiv Kumar R/o Village- Maulanagar, P.O. Wazirganj,
P.S. Wazirganj, District Gaya, Pin- 805131.
57. Priti Kumari, D/O- Dilip Kumar At and P.O.- Sadaquat Ashram, P.S.
Patliputra, District- Patna, Pin- 800010.
58. Janki Shakya D/o-Awadhesh Singh R/o Village- Ekauni, Mahuat, P.S.
Sonhan, District- Kaimur, Pin- 821108.
59. Asha Kumari, D/O- Ram Bilash Singh R/o Village and P.O. Rampur
Samthu, P.S. Angar Ghat, District- Samastipur, Pin- 848131.
60. Simran Kumari, D/O- Kaushal Kishor Yadav R/o Village- Piprahi, P.O.
Bhan, P.S. Ghailarh, District- Madhepura, Pin- 852121.
61. Sonali Priya, D/O- Birendra Singh R/o Village and Post- Adalpur, P.S.
Jandaha, District- Vaishali, Pin- 844126.
62. Rani Kumari D/O-Upendra Manjhi R/o Village and Post- Dangsi, P.S.
Sidhwaliya, District- Gopalganj, Pin- 841407.
63. Neelam Kumari Verma D/O- Prakash Prasad R/o Village and P.O.- Musaaila,
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
P.S. Mohanpur, District- Gaya, Pin- 824232.
64. Priti Kumari D/o- Sudarshan Kumar R/o Village- Bardih, P.O. and P.S.
Sikandra, District- Jamui, Pin- 811315.
65. Fruity Kumari D/o- Rajeshwar Prasad Singh R/o Village- Narangi Sarsikan,
P.O.- Madhaul, P.S. Mahua, District- Vaishali, Pin- 844122.
66. Rahul Kumar, son of Bidia Singh R/o Village- Bhusura, P.O. Korara, P.S.
and District- Arwal, Pin- 804401.
67. King Raj son of Chhotan Ravidash R/o Village and P.O. Jamuara, P.S.
Narhat, District- Nawada, Pin- 801503.
68. Mukesh Kumar, son of Suresh Singh R/o Village and P.O. Ghusia Kalan,
P.S. Bikramganj, District- Rohtas, Pin- 802212.
69. Pappu Paswan , son of Ramayan Paswan R/o Village- Nibiyatan, P.O.
Umapur, P.S. Chainpur, District- Kaimur (Bhabhua), Pin- 821102.
70. Ashutosh Paswan son of Rajindra Paswan R/o Village- Parham, P.O. Farda,
P.S. Naya Ramnagar, District- Munger, Pin- 811202
71. Chandan Kumar son of Satyendra Paswan R/o Village- Kakariya, P.O.
Kalpa, P.S. Jehanabad, District-Jehanabad, Pin- 804417.
72. Sonu Kumar son of Virendra Sah R/o Village- Mojahida, P.O. and P.S.
Parbatta, District- Khagaria, Pin- 851216.
73. Kundan Kumar son of Sitaram Sah R/o Village- Munshipatti, P.O. Gangapur,
P.S. Sultanganj, District- Bhagalpur, Pin- 813213.
74. Rahul Kumar Sanjay Pandit R/o At- Hisua Rly Gumti, P.O. and P.S.- Hisua,
District- Nawada.
75. Ranjeet Kumar Sah son of Shivshankar Sah R/o Village- Jawatari, P.S.
Malaypur, Disrict- Jamui, Pin- 811313.
76. Gautam Kumar son of Rajendra Singh R/o Village- Horila, P.O.- Bansh
Gopal, P.S. Rajauli, District- Nawada, Pin- 805125.
77. Vijay Kumar son of Premlal Sah R/o Village and Post- B. Baghnagri, P.S.
Sakra, District- Muzaffarpur, Pin- 843105.
78. Sunil Kumar son of Ram Lagan Ray R/o Village- Rahimpur, P.O. Rudauli,
Harpur Ailoth, P.S. Samastipur, District- Samastipur, Pin- 848106.
79. Mithilesh Kumar son of Shyam Sundar Singh R/o Village and P.O. Gokhula,
P.S.- Bidupur, District- Vaishali, Pin- 844503.
80. Om Prakash Kumar, son of Lallu Paswan R/o Village- Chitabkala, P.O.
Khurd Chitab, P.S. Sherghati, District- Gaya, Pin- 842411
81. Abhimanu Kumar, son of Janardan Prasad R/o Village- Rustampur, P.O.
Kena, P.S. Mufassil, District-Nawada, Pin- 805123.
82. Satish Kumar son of Upendra Prasad Sah R/o Village and P.O.- Dhamar, P.S.
Muffasil, Ara, District- Bhojpur, Pin- 802156.
83. Ranvijay Kumar son of Bambholi Yadav R/o Village and Post- Parihari, P.S.
Kumar-Khand, District- Madhepura, Pin- 852114.
84. Pravesh Kumar son of Om Prakash Singh R/o Village- Narahat, P.O. Narhat,
P.S. Narhat, District- Nawada, Pin- 805122.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
85. Kanhaiya Yadav, son of Dev Narayan Yadav R/o At- Arsandih, P.O.
Amarpur, P.S. Bihpur, District- Bhagalpur, Pin- 853201
86. Randhir Kumar, son of Dhiraj Bauelal Sahu R/o Village and Post- Sonma,
P.S.- Bakhri, District- Begusarai, Pin- 848201
87. Sudarshan Kumar son of Indradeo Prasad R/o Village- Raghunathpur, P.O.
Shampur, P.S. Haveli Kharagpur, District- Munger, Pin- 811211
88. Haresh Pal, son of Shiv Murat Pal R/o Village- Bharakhara, P.O.- Kakariyan,
P.S. Dhansoin, District- Buxar, Pin- 802117.
89. Anil Kumar son of Tejnarayan Yadav R/o Village- Maheshpur, P.O.- Samda,
P.S. Sour Bazar, District- Saharsa, Pin- 852201
90. Vipul Kumar son of Ganauri Sharma R/o Village and Post- Nandnama, P.S.
Ramgarh Chowk, District- Lakhisarai, Pin- 811311
91. Jayant Kumar son of Sidhi Pal R/o Village- Daulatpur Ganj, P.O. and P.S.
Obra, District- Aurangabad, Pin- 824124.
92. Banty Kumar son of Arvind Choudhary R/o Village and Post- Hargawanj,
P.S. Manpur, District- Nalanda, Pin- 803101.
93. Mantosh Kumar son of Mahendra Pandit R/o Village- Gauripur, P.O.
Safiabad, P.S. Naya Ramnagar, District- Munger, Pin- 811214.
94. Divakar Kumar son of Dilip Kumar R/o Village- Gauri, P.O. Raisa, P.S.
Chandi, District- Nalanda, Pin- 803108
95. Dinesh Kumar Yadav son of Sriram Yadav R/o Village- Neknamtola, P.S.
Barhara, District- Bhojpur, Pin- 802311.
96. Shankar Choudhary son of Ramdev Choudhary R/o Village- Baliya Bigha,
P.O.- Barandi, P.S.- Rahui, District- Nalanda, Pin- 803119.
97. Om Prakash Paswan son of Mohan Paswan R/o Village- Jagdishpur, Post-
Nadaon, P.S. Buxar Mufassil, District- Buxar, Pin- 802103
98. Mukesh Kumar Sah Labbu Pd. Sah R/o Village- Rajawar, P.S. Rajawar,
District- Banka, Pin- 813107.
99. Randhir Kumar son of Tulsi Ram R/o Village- Jaganpura, Post- Majhauli,
P.S. and District- Vaishali, Pin- 844123.
100 Vikas Kumar son of Sharda Paswan R/o Village and Post- Khadda, Kunjlahi,
. P.S. Nautan, District- West Champaran, Pin- 845438
101 Vijay Prakash Kumar son of Ram Padarath Rai R/o Village- New Yarpur,
. Janta Road, P.S.- Gardanibagh, P.O.- G.P.O., District- Patna, Pin- 800001.
102 Ashish Kumar son of Dinesh Prasad Yadav R/o Village- Kendua, P.O. and
. P.S. Rajauli, District- Nawada, Pin- 805125.
103 Birendra Kumar son of Dukh Mohan Singh R/o Village and Post- Parwara,
. P.S. Tarapur, District- Munger, Pin- 813221.
104 Shyam Kumar Paswan son of Jayram Paswan R/o Village- Mission Road,
. Laliyahi, P.O.- New Jutt Mills, P.S. Sahayak, Thana, District- Katihar, Pin-
854105.
105 Yogesh Kumar son of Prakash Mandal R/o Village- Ghasiya, P.O. and P.S.
Dhoraiya, District- Banka, Pin- 813224.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
106 Suresh Kumar Gupta son of Lal Babu Sah R/o Village- Karserua, P.O.-
. Darigaon, P.S. Sasaram, District- Rohtas, Pin- 821115.
107 Bipin Kumar son of Geerja Prasad R/o Village- Kathokari, P.S. Warisaliganj,
. P.O.- Dosut, District- Nawada, Pin- 805132.
108 Mantu Kumar son of Lakhan Prajapati R/o Village- Nawadih, P.O. and P.S.-
. Bankey Bazar, District- Gaya, Pin- 824217
109 Dheeraj Kumar son of Vijay Paswan R/o Village- Shampur, P.S. Khadagpur,
. P.O. Shampur, District- Munger, Pin- 811211.
110 Sumit Anand son of Jagannath Prasad Sharma R/o Village- Basgarha, P.O.-
. Rampur- Khora, P.S. Udakishunganj, District- Madhepura, Pin- 852220.
111. Chandan Kumar Mahto son of Ranjit Prasad Mahto R/o Village- Bhardiha,
P.O. and P.S. Bhagwanpur, District- Begusarai, Pin- 851120.
112 Ganga Prasad Gupta S/o Shiv Tahal Gupta R/o Village and Post- Belaundi,
. P.S. Mohania, District- Kaimur, Pin- 821109
113 Navlesh Kumar Bantan S/o Rajendra Prasad R/o Village and P.O.- Pasarhi,
. P.S.- Meskaur, District- Nawada, Pin- 805128
114 Sunil Kumar S/o Krishna Prasad R/o Village- Sohjana, P.O.- Surdhi, P.S.-
. Islampur, District- Nalanda, Bihar, Pin- 803116
115 Kundan Kumar S/o Dashrath Prasad Sah R/o Village and P.O.- Makduma,
. P.S.- Amarpur, District- Banka, Pin- 813101
116 Dharmendra Kumar son of Mahesh Ram R/o Village- Chakdadan, P.O.-
. Chakmajadhid, P.S. Mahua, District- Vaishali, Pin- 844122
117 Rakesh Kumar Mehta S/o Arun Mehta R/o Village- Pola, P.O.- Matpa, P.S.-
. Kutumba, District- Aurangabad, Pin- 824111.
118 Ravindra Kumar Rajak son of Bindeshwar Ram Rajak R/o Village- Bhakura,
. P.O.- Lauhar Pharna, P.S.- Muffasil, District- Bhojpur, Pin- 802315.
119 Vikram Kumar S/o Nepali Sahni R/o Village- Laldarwaza, Gita Babu Road,
. P.O.- Munger, P.S.- Kotwali, District- Munger, Pin- 811201
120 Uttam Kumar S/o Dilip Prasad R/o Village- Kishunpur, P.O.- Kachnama,
. P.S. Makhdumpur, District- Jehanabad, Pin- 804422
121 Amarjit Kumar S/o Manu Singh R/o Village and Post- Chorhali, P.S.
. Beldour, District- Khagaria, Pin- 852161
122 Manmohan Kumar S/o Rajit Singh R/o Village and P.S. Ram Nagar Diyara,
. P.S. Athmal Gola, District- Patna, Pin- 803212
123 Ravidev Singh S/o Ramashray Singh R/o Village- Ahirauli, Post- Barkadih,
. P.S. Shivsagar, District- Rohtas.
124 Kumar Niteesh S/o Nathu Prasad R/o Village and P.O.- Siaruan, P.S.
. Jagdishpur, District- Bhojpur, Pin- 802158
125 Santu Yadav S/o Sakaldev Yadav R/o Village and Post- Barhara, P.S. Halsi,
. District- Lakhisarai, Pin- 811107
126 Subodh Kumar Varma S/o Vinod Prasad Varma R/o Village- Kopin, P.O.-
. Biju Bigha, P.S.- Sitamadhi, District- Nawada, Pin- 805122.
127 Arvind Kumar Patel S/o Aneel Kumar Patel R/o Village- Maharapur, P.O.-
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
. Chatra, P.S. Khajauli, District- Madhubani, Pin- 847228
128 Amar Nath Kumar son of Yogendra Mahto R/o Village- Katarmala, P.S.-
. Goraul, District- Vaishali.
129 Chanchal Kumar son of Laxmikant Mandal R/o At and P.O.- Kalyanpur, P.S.
. Bariyarpur, District- Munger, Pin- 811211
130 Surendra Paswan S/o Sudarshan Paswan R/o Village- Bahera, P.O.- Moin,
. P.S. Belaon, District- Kaimur (Bhabhua).
131 Manoj Kumar Ray son of Kisun Ray R/o Village- Semariya East, P.O. and
. P.S.- Revelganj, District- Chapra (Saran), Pin- 841305
132 Amit Kumar Yadav S/o Sadanand Yadav R/o Village- Tahirpur, P.O.-
. Nananpair, P.S.- Dhoriya, District- Banka.
133 Ranjeet Kumar Yadav S/o Mahabir Ray R/o Village- Singar Tola, P.O. and
. P.S.- Revelganj, District- Chapra, Pin- 841305
134 Rakesh Kumar Yadav S/o Hiralal Yadav R/o Village- Bengatol, P.O.-
. Mahatha, P.S.- Ladania, District- Madhubani, Pin- 847232
135 Rampavitra Kumar S/o Bhagavan Paswan R/o Village- Ranisaray, P.O. and
. P.S.- Bakhtiyarpur, District- Patna, Pin- 803212
136 Awash Kumar S/o Vijay Paswan R/o Village and Post- Bhadeji, P.S.
. Moffasil, District- Gaya, Pin- 823003
137 Chiranjeevi Kumar Patel S/o Pramod Kumar Nirala R/o Village- Kamarganj,
. P.O.- Jahangira, P.S. Sultanganj, District- Bhagalpur, Pin- 813213
138 Brajesh Raj S/o Brahmdeo Choudhary R/o Village- Pasi Tola Ward No. 19,
. Jamalpur, Gogri, P.S.- Gogri, District- Khagaria, Pin- 851203.
139 Raju Kumar Rai S/o Dinaman Kumar Rai R/o Village- Chatgaw, P.O.-
. Barahakurwa, P.S. Triveniganj, District- Supaul, Pin- 852139
140 Anjani Kumar Thakur S/o Jay Narayan Thakur R/o Village- Barhmamotra,
. P.O.- Ratanpura, P.S.- APM, District- Darbhanga, Pin- 846002
141 Bir Bahadur Ram S/o Siddhnath Ram R/o Village- Turaon Garh, P.O.-
. Rupsagar, P.S.- Nawanagar, District- Buxar, Pin- 802129
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Home (Police) Department,
Govt. of Bihar, Patna.
2. Principal Secretary Home (Police) Department, Govt. of Bihar, Patna.
3. Director General of Police, Bihar, Patna
4. Inspector General of Police, Bihar, Patna.
5. Senior Superintendent of Police, Patna
6. Town Superintendent of Police, Western, Patna
7. Town Superintendent of Police, Central, Patna
8. Rural Superintendent of Police, Patna
9. Central Selection Board, Constable Employment through Secretary, Bihar,
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
Patna.
... ... Respondents
======================================================
with
Civil Writ Jurisdiction Case No. 22908 of 2018
======================================================
Raj Kishore Yadav S/o Late Wquil Prasad Yadav R/o Village- Narayanpur,
P.S. Bhawanipur. District-Bhagalpur
... ... Petitioner/s
Versus
1. The State Of Bihar and Ors
2. The Director General of Police, Bihar, Patna
3. Additional Director General of Police, Head Qaurter Bihar, Patna
4. The Inspector General of Police, Region, Patna
5. The Additional Inspector General of Police, Central Range, Patna
6. The Senior Superintendent of Police, Patna
7. Superintendent of Police,Town, West Patna
8. The Superintendent of Police,Town, Middle, Patna
9. The Deputy Superintendent of Police Training, Navin Police Kendra, Patna
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 22996 of 2018
======================================================
Damodar Paswan Son of Sri Ambika Paswan Resident of Village-
Ratanpur,P.S. Bariarpur,Distt.-Munger
... ... Petitioner
Versus
1. The State Of Bihar
2. The Director General of Police, Bihar,Patna
3. Additional Director General of Police 9Head Quarter) ,Bihar,Patna
4. The Inspector General of Police,Region,Patna
5. The Additional Inspector of Police,Central Range,Patna
6. The Senior Superintendent of Police, Patna
7. Superintendent of Police, Town West Patna
8. The Superintendent of Police, Town Middle,Patna
9. The Deputy Superintendent of Police,Training,Navin Police Kendra,Patna
... ... Respondent/s
======================================================
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
with
Civil Writ Jurisdiction Case No. 25105 of 2018
======================================================
1. Rajesh Kumar Mahato Son of Kishore Mahto, Permanent Resident of
Village-Babhnauli, P.O.-Sohil Patti, P.S.-Basantplur, District- Siwan,
presently residing at Mohalla-Gulabi Ghat, P.S.- Sultanganj, Town and
district-Patna-800006.
2. Abhay Kumar, son of Ramshry Paswan, Resident of mohalla-Salempur,
P.O.- Soh sarai, P.s.- Soh Sarai, District- Nal
3. Manish Kumar, son of Muralidhar Thakur, Resident of J.P. Nagar, Ward No.-
26, Supaul, P.O.+ P.S.& District- Supaul.
4. Manoj Kumar Singh, son of Ramchandra Singh, resident of village- Pipardih
(tola) P.S.- Nasriganj, District- Rohtas, presently resident at Lodipur, P.S.-
Budhha Colony, Disttrict- Patna.
... ... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary, Department of Home,
Government of Bihar, Patna.
2. The Principal Secretary, Department of Home,Govt. of Bihar, Patna.
3. The Director General of Police, Bihar, Patna.
4. The Additional Director General of Police Head Qtr,, Bihar, Patna.
5. The Inspector General of police, Patna, Range, Patna.
6. The Deputy Inspector General, of police, Central Range, Patna
7. The Senior Superintendent of police, Patna.
8. The Superintendent of Police, Rural, Patna.
9. The Superintendent of Police, City M, Patna..
10. The Deputy Superintendent of Police, Kotwali (Law and Order)-cum
Investigating Officer, Patna.
... ... Respondents
======================================================
with
Civil Writ Jurisdiction Case No. 726 of 2019
======================================================
Arun Kumar Chaudhary son of Late Radha Krishna Chaudhary resident of
Village- Birampur, P.S. Koilwar, District- Bhojpur (Ara).
... ... Petitioners
Versus
1. The State Of Bihar
2. The Director General of Police Bihar, Patna.
3. Additional Director General of Police (Head Quarter) Bihar, Patna.
4. The Inspector General of Police Region, Patna.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
5. The Additional Inspector of Police Central Range, Patna.
6. The Senior Superintendent of Police Patna.
7. Superintendent of Police (Town) West Patna.
8. The Superintendent of Police (Town) Middle Patna.
9. The Deputy Superintendent of Police, (Training) Navin Police Kendra,
Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 1151 of 2019
======================================================
1. Puja Kumari D/O-Rajendra Kapri R/o Vill- Saijpur, P.O. Samukhiya, More,
P.S. and District- Banka.
2. Lalita Kumari D/O-Panchanand Singh Alua Kalignj, Ward No. 06, P.S.
Araria Distt. Araria.
... ... Petitioner/s
Versus
1. The State Of Bihar through Principal Secretary, Home Police, Department,
Govt of Bihar, Patna.
2. Principal Secretary Home(Police), Department, Govt of Bihar, Patna Bihar
3. Director General of Police, Bihar, Patna Bihar
4. Inspector General of Police, Patna Region, Patna Patna
5. Senior Superintendent of Police, Patna. Bihar
6. Town Superintendent of Police, Western, Patna Patna
7. Town Superintendent of Police, Central, Patna Patna
8. Rural Superintendent of Police, Patna Patna
9. Central Selection Board, Constable Employment through Secretary, Bihar,
Patna. Bihar
... ... Respondents
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 23925 of 2018)
For the Petitioners : Mr. Y.V. Giri, Senior Advocate
Mr. Farooque Afzal, Advocate
Mr. Kumar Rajiv, Advocate
Mr. Gulnaz Yasmin, Advocate
Mr. Sumit Kumar Jha, Advocate
Mr. Pramod Kumar, Advocate
For the State : Mr. P.K. Verma, AAG-3
Mr. Saroj Kumar Sharma, A.C. to A.A.G.-3
Mr. Sanjay Kr. Ghosharvey, A.C. to AAG-3
For C.S.B.C. : Mr. Sanjay Pandey, Advocate
Mr. Binod Kumar Mishra, Advocate
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
Mr. Vivek Anand Amritesh, Advocate
(In Civil Writ Jurisdiction Case No. 22908 of 2018)
For the Petitioner/s : Mr. Indu Bhushan, Advocate
For the Respondent/s : Mr. Manish Kumar- GP-4
(In Civil Writ Jurisdiction Case No. 22996 of 2018)
For the Petitioner/s : Mr. Indu Bhushan, Advocate
For the Respondent/s : Mr. Md.Nadim Seraj -GP5
(In Civil Writ Jurisdiction Case No. 25105 of 2018)
For the Petitioner/s : Mr. Raghunath Singh, Advocate
Mr. Amitesh Kumar, Advocate
For the Respondent/s : Mr. Md. Nadim Seraj- GP-5
Mr. Shailesh Kumar, A.C. to G.P.-5
(In Civil Writ Jurisdiction Case No. 726 of 2019)
For the Petitioner/s : Mr.Indu Bhushan
For the Respondent/s : Mr.Manish Kumar- GP-4
(In Civil Writ Jurisdiction Case No. 1151 of 2019)
For the Petitioner/s : Mr. Jai Prakash Singh, Advocate
For the State : Mr. Sheo Shankar Prasad, SC-8
Mr. Sanjay Kumar Mishra, A.C. to S.C.-8
For the C.S.B.C. : Mr. Binod Kumar Mishra, Advocate
Mr. Vivek Amritesh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
C.A.V. JUDGMENT
Date : 03-05-2021
The petitioners are constables in two categories;
first, large number of petitioners are probationers and four of
them are permanent constables.
2. In the present case, all the probationers and
permanent constables having been terminated from the service
on account of an indent took place in new Police Line on
02.11.2018.
3. In all the writ petitions, the facts are identical as
also the reasons for termination of service are the same. There is
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
no deviation of the facts, so the facts of C.W.J.C. No.23925 of
2018 is being taken into consideration, if necessary, the facts of
other cases will also be taken into consideration.
4. The probationer and permanent constables are
challenging the order of termination contained in Memo no.
13624 dated 04.11.2018 (Annexure-11) issued under the
signature of Senior Superintendent of Police, Patna, whereby
altogether, 164 probationer constables have been terminated and
by the same authority vide order contained in Memo No.13625
dated 04.11.2018, four permanent constables having been
dismissed from the service.
5. The facts of these cases runs in the following
terms;-
That on 02.11.2018, one lady constable namely,
Sabita Kumari Pathak, constable No.1591 died in Udayan
Hospital, Patna, as it appears from the record that she had gone
for leave on account of her illness, when she reported she was
posted at her work place and whereafter her condition
deteriorated and ultimately she died while getting treatment in
Udayan hospital, Patna. On that account, large number of trainee
constables assembled at new police line at Patna around 9:15
A.M. and indulged in the act of hooliganism and violence. They
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
attacked on Dy. S.P. (trainee) in his office with lathi, danda and
stones, grievously injured the police personnel posted there
including the staffs and employees and went on damaging
C.C.T.V. cameras and computers and also tore important files.
They were indulged in damaging the Government vehicles
parked outside the office and went to the extent of beating the
Dy. S.P. and his family. When he tried to hide himself in his
residence, he was inflicted head injury and also destroyed his
home articles. The Dy. S.P. along with his wife and daughters
were admitted in the hospital for severe head injuries. When,
City Superintendent of Police and other police officers, on call,
reached the place, tried to pacify the mob, they not only defied
the request and orders but, also indulged in brick-batting and
injured those police personnel and damaged their vehicles. All
the incident has been recorded in different C.C.T.V. cameras,
that led to institution of four criminal cases viz. (i) Budha
Colony P.S. Case No.435 of 2018 under Sections 147, 148, 149,
188, 341, 323, 325, 332, 333, 337, 338, 353, 427, 419, 450, 451,
452, 461, 120(B) IPC and under Section 3 / 4 of the Damage to
Public Property Act; (ii) Budha Colony P.S. Case No. 436 of
2018 under Sections 147, 148, 149, 188, 341, 342, 323, 324,
325, 307, 306, 332, 333, 337, 338, 353, 427, 419, 450, 451, 452,
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
461 and 120(B) IPC and under Section 3 / 4 of the Damage to
Public Property Act; (iii) Budha Colony P.S. Case No. 437 of
2018 under Sections 147, 148, 149, 341, 323, 307, 306, 353,
427, 419, 450, 451, 452, 461, 120(B) IPC and (iv) Budha
Colony P.S. Case No. 438 of 2018 under Sections 147, 148, 149,
341, 427 and 504 IPC.
After that, when they were brought under control,
the Town Senior Superintendent of Police, West Patna,
submitted a report dated 04.11.2018, in which he has given the
details of facts and reasons for aggression of the persons
damaging the properties and also assaulting the Senior Officers
including their family members. In the report, it has been
submitted that the administration identified the probationer
constables and the permanent constables indulged in the wrong
acts. It also appears that a report was also submitted by the
Town Superintendent of Police, Patna Range, Patna, vide report
dated 03.11.2018 to the Senior Superintendent of Police, Patna,
in which he has also given the details about the incident in
which several officers and other staffs have received injuries
including they have destroyed the public properties. It also
appears from the record that the Senior Superintendent of
Police, Patna, has constituted a team of Town Superintendent of
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
Police, West, Superintendent of Police, Rural, and requested
them to submit the report and take disciplinary action against
them. On the basis of the report, the Senior Superintendent of
Police, Patna, vide letter no. 7747 dated 04.11.2018 gave the
feedback to the Inspector General of Police, Patna Range, Patna,
and requested to grant permission to take action against 164
probationer constables and four permanent constables.
Whereupon, the Inspector General of Police, Patna Range,
Patna, vide his letter no. 4022 dated 04.11.2018 has recorded
that 171 probationer constables are found unfit and at the same
they have been found guilty of committing misconduct and four
permanent constables have also been found guilty in the same
term and directed for termination of their services. In pursuance
of the direction of the Inspector General of Police, altogether the
services of 164 probationer constables have been terminated
mentioning that they are unfit to continue in the service and with
respect to four permanent constables namely, Hawaldar-257
Damodar Paswan, Constable-1216 Sandeep Kumar, DPC-1122
Rajkishore Yadav and Constable 3607 Arun Kumar Choudhary,
they have also been found to be committing wrong and
accordingly, all have been terminated from the service vide
impugned order dated 04.11.2018.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
6. In the present case, the question has been raised by
the petitioners that they come under the protection of Article
311(2) of the Constitution of India, either the probationer
constables or permanent constables, it speaks that before
dismissing any person from the services, should be preceded by
the departmental inquiry and from the record it shows that the
petitioners have been found to be committed conduct of
indiscipline of higher degree and they have been dismissed or
terminated from the service on account of those charges. So it
was required by the appointing authority/ disciplinary authority
to hold the departmental inquiry and if the inquiry report found
them guilty, then they could have been dismissed from the
service. However, in the present case, neither any show-cause
has been issued nor inquiry has been conducted and behind back
Three Men Committee was constituted, out of them two have
put their signatures and one has not put his signature having
found that they were indulged in wrong act of assaulting the
higher officers including their family members, damaged the
public properties including C.C.T.V. cameras, so it is completely
a case of misconduct and admittedly, no such inquiry has been
conducted and as such, it violates Article 311 of the
constitutional of India and requires to be set aside.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
7. Whereas, Mr. P.K. Verma, learned A.A.G.-3
appearing for the State has argued in the case of probationer
constables and submitted that the probationers are not required
to be proceeded departmentally on account of fact that they have
been found unfit to continue in service, so it was a simple
termination. There may be internal inquiry when the employer
has chosen not to take any disciplinary action, but they have
been found unfit and have been terminated from service. It
would have been required for an inquiry if their conduct would
have been foundation is of taking a disciplinary action, only
then, preceding departmental inquiry is required. There may a
motive and arriving to a finding that what action should be taken
but, only in the case of foundation, but for the action they have
been punished only then, the inquiry is required to conducted
but, in the present case, no such foundation has been recorded
but, merely a report has been submitted, the competent authority
has examined the report and found that they cannot be allowed
to continue in service. It has further been submitted that merely
because the persons have completed two years of service will
not ipso facto be treated to be permanent employees.
8. He has drawn the attention of this Court to Rule-
668 of the Bihar Police Manual, which speaks of the removal or
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
reversion of officers appointed direct or promoted on probation.
He has also drawn the attention of this Court to Appendix 4(i) of
Bihar Police Manual, Volume-3, wherein the period of probation
has been prescribed as it has been stated by learned counsel for
the petitioner that there is no period of probation has been
prescribed for constables, so as per Rule - 668 of the Bihar
Police Manual, the period of probation will be two years as it
states that "all officers shall, at first instance, will be appointed
or promoted on probation. Where the period of probation is not
otherwise provided for the rule, it shall be for the two years".
He has stated that item no.11 of Appendix 4(1) which mentions
about the constables does not prescribe the period of probation,
so their period of probation will be two years. Though their
period of service is more than two years but, ipso facto they will
not be treated to be permanent constables as has been submitted
by learned counsel for the petitioners. So, there was no need for
any regular inquiry to be conducted for the probationer
constables.
9. He has place reliance reliance on the decision of
Hon'ble Apex Court rendered in the case of Pavendra Narayan
Verma vs. Sanjay Gandhi P.G.I. of Medical Science of Anr.
reported in 2002(1) SCC 520. On the question of period of
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
termination of service, he has placed reliance on the decision
rendered in the case of Wainganga Bahuuddeshiya Vikash
Sanstha though President B.B. Karanjekar vs. Jaya reported in
(2019) 20 SCC 288. He has also placed reliance on the decision
rendered in the case of Champaklal Chimanlal Shah vs The
Union Of India reported in AIR 1964 S.C. 1854.
10. Another judgment relied upon by the State is
Rajesh Kohli vs. High Court of Jammu and Kashmir reported
in (2010) 12 SCC 783.
11. He has distinguished the judgments cited by
learned Senior Counsel for the petitioners viz. The State of
Bihar vs. Gopi Kishore Prasad reported in AIR 1960 S.C. 689;
Chandra Prakash Shahi vs. State of U.P. and Ors. reported in
2000(5) SCC 152; Jaswant Singh vs. State of Bihar and Ors.
reported in AIR 1991 SC 385; Managing Director, ECIL,
Hyderabad vs. B. Karunakar reported in (1993) 4 SCC 727.
12. On the question of confirmation, learned counsel
for the State has placed reliance on the decision rendered in
Kedar Nath Bahl vs. State of Punjab and Haryana reported in
(1974) 3 SCC 21; High Court of M.P. vs. Satya Nrayan Jhavar
2001 (7) SCC 161; and Pankaj Kumar vs. The LIC of India
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
and Ors. reported in (2019) 2 PLJR 691.
13. Mr. Nadeem Seraj and Manish Kumar, learned
counsel representing the State in the case of permanent
constables have adopted the common line of arguments and it
has been submitted that with regard to permanent employees
they have been dismissed following the provisions of Article
311 (2)(b) of the Constitution of India as the reason has been
mentioned in the order of termination itself that is why the
employer was compelled to take extreme action against them. It
has also been submitted that there is no violation of Article
311(2) of the Constitution of India as they were indulged in
vandalism, they have destroyed the public properties and also
assaulted the higher authorities including their family members.
So, it was not possible to conduct the inquiry, their services have
been dispensed with and they have been served with order of
punishment of dismissal.
14. Mr. Manish Kumar, learned counsel for the State,
has placed reliance on the judgment rendered in the case of
Union of India vs. Tulsiram Patel reported in AIR 1985 SCC
1416; Satyavir Singh and Ors. vs. Union of India and Ors.
reported in AIR 1986 SC 555; Ved Mitter Gill vs. Union
Territory Administration, Chandigardh and Ors. reported in
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
2015 SCW 2147; Ikramuddin Ahmed Borah vs.
Superintendent of Police reported in AIR 1988 SC 2245.
15. Mr. Nadeem Seraj, learned counsel for the State has
placed reliance on the order dated 13.11.2017 passed in L.P.A.
No. 736 of 2014 and the decision rendered by Hon'ble Apex
Court in the case of Pravin Kumar vs. Union of India and Ors.
reported in (2020) 9 SCC 471.
16. The moot question involved in the present cases
that two class of petitioners are there, one is the probationers
and another is permanent employees. In both the matters, the
argument has been made by the petitioners that as they have
been dismissed on account of misconduct, they are the
Government servants, so the departmental inquiry is a condition
precedent, which has not been followed, so it violates Article
311(2) of the Constitution of India and hence the termination
order required to be set aside outrightly. In the case of
permanent employees identical question has been raised and
learned counsel for the State has submitted that status of
probationer constables is quite different to the permanent
employees, they have not been punished but, their services have
been dispensed with on account of fact that have been found to
be unfit to continue in the uniform service where discipline is
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
paramount. Whereas, in the case of permanent employees, the
State has taken plea that Article 311(2)(b) has been followed as
the details of facts and surrounding circumstances including the
order of dismissal speak that there is compliance and there is
satisfaction of disciplinary authority before passing the order of
dismissal.
17. Before dealing with the merit of the issue involved
in the present matters and the judgments cited by the parties, it
will be useful to deal with the relevant provisions of the
Constitution of India concerning the issue involved in the
present matters, which are Articles 309, 310 and 311 of the
Constitution of India. Article 309 of the Constitution of India
reads as under:-
"309. Recruitment and conditions of service of
persons serving the Union or a State.-
Subject to the provisions of this Constitution,
Acts of the appropriate Legislature may
regulate the recruitment, and conditions of
service of persons appointed, to public
services and posts in connection with the
affairs of the Union or of any State:
Provided that it shall be competent for
the President or such person as he may
direct in the case of services and posts in
connection with the affairs of the Union, and
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
for the Governor of a State or such person
as he may direct in the case of services and
posts in connection with the affairs of the
State, to make rules regulating the
recruitment, and the conditions of service of
persons appointed, to such services and
posts until provision in that behalf is made
by or under an Act of the appropriate
Legislature under this article, and any rules
so made shall have effect subject to the
provisions of any such Act."
18. Article 309 of the Constitution of India prescribes
that legislature of Union or the State would be competent to
makes rules regulating the process of recruitment and conditions
of service of the public servants. The proviso prescribes that the
President or the Governor or such authorized person in absence
of act of Parliament or State Legislature, may direct to frame the
rule in connection with the matter of recruitment and conditions
of services of persons appointed to such services and posts
under the provisions in that behalf is made or under the act of
the appropriate Legislature. Under this Article, any act or rule so
made has an effect subject to provision of any sch act.
19. This provision made it very clear that the
recruitment and service conditions of civil servants is regulated
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
by statutory provisions made by Parliament or State legislature,
as the case may be, or the rule may be framed by the President
or the Governor or the authorized person of the President or the
Governor, as the case may be, and any service rule already
framed or would be framed in both the situation, it will be
subject to the act already existed or to be enacted by the
respective legislature.
20. Article - 310 of the Constitution of India reads as
under:-
"310. Tenure of office of persons serving the Union
or a State.--(1) Except as expressly provided by
this Constitution, every person who is a member
of a defence service or of a civil service of the
Union or of an all-India service or holds any
post connected with defence or any civil post
under the Union holds office during the pleasure
of the President, and every person who is a
member of a civil service of a State or holds any
civil post under a State holds office during the
pleasure of the Governor of the State.
(2) Notwithstanding that a person holding a civil
post under the Union or a State holds office
during the pleasure of the President or, as the
case may be, of the Governor of the State, any
contract under which a person, not being a
member of a defence service or of an all-India
service or of a civil service of the Union or a
State, is appointed under this Constitution to
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
hold such a post may, if the President or the
Governor, as the case may be, deems it
necessary in order to secure the services of a
person having special qualifications, provide for
the payment to him of compensation, if before
the expiration of an agreed period that post is
abolished or he is, for reasons not connected
with any misconduct on his part, required to
vacate that post."
21. Article 310 of the Constitution of India deals with
pleasure doctrine with respect to the member of a defence
service or civil service or the Union as our democracy is based
upon the model of west minister.
The pleasure doctrine of United Kingdom
(i) The pleasure doctrine relates to the tenure of a
Government servant, that is, his right to continue to hold
office. Under it, all public officers and servants of the
Crown in the United Kingdom hold their appointments at
the pleasure of the Crown and their services can be
terminated at will without assigning any cause.
(ii) The pleasure doctrine is not based upon any special
prerogative of the crown but, is based on public policy
and is in public interest and for public good. The basis of
the pleasure doctrine is that the public is vitally interested
in the efficiency and integrity of civil services and,
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
therefore, public policy requires, public interest needs and
public good demands that civil servants who are
inefficient, dishonest or corrupt or have become a security
risk should not continue in service.
(iii) In the United Kingdom, Parliament is sovereign and can
make any law whatever and the Courts have no power to
declare it void. Therefore, the pleasure doctrine is subject
to what may be expressly provided otherwise by
legislation.
The Pleasure Doctrine in India
(i) In India, the pleasure doctrine has received Constitutional
sanction by being enacted in Article 310(1) of the
Constitution of India. Under Article 310(1) of
Constitution of India except as expressly provided in the
Constitution, every person who is a member of a defence
service or of a civil service of the Union of India or of any
all-India service or holds any post connected with defence
or any civil post under the Union of India holds office
during the pleasure of the President, and every person
who is a member of a civil service of a State or holds any
civil post under a State holds office during the pleasure of
the Governor of the State.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
(ii) Such unlike in the United Kingdom, the pleasure doctrine
is not subject to any law made by Parliament or a State
Legislature but is subject to only what is expressly
provided in the Constitution. In India, therefore, the
exceptions to the pleasure doctrine can only be those
which are expressly provided in the Constitution. There
are express provision of the Constitution, is an exception
to the pleasure doctrine contained in Article 310(1) of the
Constitution. Clauses (1) and (2) of Article 311 restrict
the operation of he pleasure doctrine so far as civil
servants are concerned by conferring upon civil servants
the safeguards provided in those Clauses.
22. Article 311 of the Constitution of India reads as
under:-
"311. Dismissal, removal or reduction in rank of
persons employed in civil capacities under
the Union or a State.-- (1) No person who is
a member of a civil service of the Union or
an all-India service or a civil service of a
State or holds a civil post under the Union
or a State shall be dismissed or removed by
an authority subordinate to that by which he
was appointed.
(2) No such person as aforesaid shall be
dismissed or removed or reduced in rank
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
except after an inquiry in which he has been
informed of the charges against him and
given a reasonable opportunity of being
heard in respect of those charges.
Provided that where it is proposed after such
inquiry, to impose upon him any such
penalty, such penalty may be imposed on the
basis of the evidence adduced during such
inquiry and it shall not be necessary to give
such person any opportunity of making
representation on the penalty proposed:
Provided further that this clause shall not
apply--
(a) where a person is dismissed or removed
or reduced in rank on the ground of conduct
which has led to his conviction on a criminal
charge; or
(b) where the authority empowered to
dismiss or remove a person or to reduce him
in rank is satisfied that for some reason, to
be recorded by that authority in writing, it is
not reasonably practicable to hold such
inquiry; or
(c) where the President or the Governor, as
the case may be, is satisfied that in the
interest of the security of the State it is not
expedient to hold such inquiry.
(3) If, in respect of any such person as
aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
as is referred to in clause (2), the decision
thereon of the authority empowered to
dismiss or remove such person or to reduce
him in rank shall be final.
23. Under Clause (1) of Article 311, no civil servant
can be dismissed or removed from service by an authority
subordinate to that by which he was appointed. Under Clause
(2) of Article 311 of Constitution, no civil servant can be
dismissed or removed from service or reduced in rank except
after an inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being heard
in respect of such charges. As a result of the amendment made
by the Constitution (Forty-second Amendment) Act, 1976, in
Clause (2) of Article 311 of Constitution, it is now not
necessary to give to a civil servant an opportunity of making a
representation with respect to the penalty proposed to be
imposed upon him. An order of compulsory retirement from
service imposed upon a civil servant by way of penalty amounts
to removal from service, attracts the Article 311(2) of the
Constitution of India. Regulation of operation of the pleasure
doctrine contained in Clauses (1) and (2) of Article 311 of the
Constitution in India are based on public policy and are in
public interest and for public good, inasmuch as, they give to
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
civil servants a feeling of security of tenure. The safeguard
provided to civil servants by clause (2) of Article 311 is taken
away when any of the three clauses of the second proviso
becomes applicable. It is incorrect to say that the pleasure
doctrine is a prerogative of the British crown which has been
inherited by India and transposed into its Constitution but, it has
been framed and ingrained in such a manner to suit the
Constitutional set up of the Republic of India.
24. In Roshan Lal Tandon v. Union of India reported
in AIR 1967 SC 1889, the Hon'ble Supreme Court has laid
down the pleasure doctrine and the protection afforded to civil
servants by legislation by Clause (1) and (2) of Article 311 of
Constitution of India are based on public good. Similarly, the
withdrawal of the safeguard contained in Clause (2) of Article
311 by the second proviso to that clause is also based on public
policy and is in public interest and for public good. Neither
Article 309 nor Article 310 nor Article 311 sets out the grounds
for dismissal, removal or reduction in rank or for imposition of
any other penalty upon a civil servant. These Articles do not
specify what the other penalties may impose. These matters are
left to be dealt with by rules made under the proviso to Article
309 or by Acts referable to that Article or rules made under such
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
Acts. The pleasure of the President or the Governor is not to be
exercised by him personally. It is to be exercised by the
appropriate authority specified in rules made under the proviso
to Article 309 or by Acts referable to that Article or rules made
under such Acts. Where, however, the President or the
Governor, as the case may be, exercise his pleasure doctrine
under Article 310(1), it is not required that such act of exercise
of the pleasure under Article 310(1) must be an act of the
President or the Governor himself but, it must be an act of the
President or the Governor in the Constitutional sense, that is,
with the aid and on the advice of the Council of Ministers. In
the aforesaid case, it has been held that it is true that the origin
of Government service is contractual. There is an offer and
acceptance in every case. But once appointed to his post or
office the Government servant acquires a status and his rights
and obligations are no longer determined by consent of both
parties, but by statute or statutory rules which may be framed
and altered unilaterally by the Government. In other words, the
legal position of a Government servant is more one of status
than that of contract. The Hall- mark of status is the attachment
to a legal relationship of rights and duties imposed by the public
law and not by mere agreement of the parties.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
25. It will be useful to quote relevant paragraph from
Roshan Lal Tandon case (supra), which reads as under:-
"It is true that the origin of Government service
is contractual. There is an offer and acceptance
in every case. But once appointed to his post or
office the Government servant acquires a status
and his rights and obligations are no longer
determined by consent of both parties, but by
statute or statutory rules which may be framed
and altered unilaterally by the Government. In
other words, the legal position of a Government
servant is more one of status that of contract.
The Hall- mark of status is the attachment to a
legal relationship of rights and duties imposed
by the public law and not by mere agreement of
the parties. The emolument of the Government
servant and his terms of service are governed by
statute or statutory rules which may be
unilaterally altered by the Government without
the consent of the employee. It is true that
Article 311 imposes constitutional restrictions
upon the power of removal granted to the
President and the Governor under Article 310.
But it is obvious that the relationship between
the Government and its servant is not like an
ordinary contract of service between a master
and servant. The legal relationship is something
entirely different, something in the nature of
status. It is much more than a purely contractual
relationship voluntarily entered into between the
parties. The duties of status are fixed by the law
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
and in the enforcement of these duties society
has an interest. In the language of jurisprudence
status is a condition of membership of a group
of which powers and duties are exclusively
determined by law and not by agreement
between the parties concerned."
26. On reading of Articles 309, 310 and 311 of the
Constitution of India, the pleasure doctrine is regulated and
controlled by Article 311 and the Rules framed under Article
309 but the rule must be in consonance with the Constitutional
provisions. Article 311 (1) specially provides that no member of
civil services of Union or State shall be dismissed or removed
by an authority subordinate to that by which he was appointed.
Other rider has been provided that the person may be dismissed
or removed or reduced in rank except after an inquiry in which
he has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those
charges. However, we are concerned with the area of Article 309
of the Constitution of India and the rules framed there-under
which prescribes a procedure for holding an inquiry, which
should reflect that he has been given reasonable opportunity of
being heard in respect of proposed charges. Article 309 read
with Article 311 of the Constitution of India prescribes the
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
manner and method for holding inquiry.
27. Article-311(2) shall not be applicable where a
person is dismissed on the ground of his conviction on a
criminal charge, with which we have no concerned. Clause (b)
provides that the authority empowered to dismiss or remove a
person or to reduce him in rank is satisfied for some reasons to
be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry. Clause (c) provides that when
the President or the Governor, as the case may be, is satisfied
that in the interest of the security of the State it is not expedient
to hold such inquiry. We are not concerned with this provision.
However, Clause 3 of Article 311 specifically states that the
authority empowered to dismiss or remove such person or to
reduce him in rank shall be final. The jurisdiction of authority
with respect to reasonable and practicable to hold inquiry to
dismiss or remove or to reduce in rank shall be final. Clause 2 of
Article-311 gives a Constitutional mandate to the principle of
natural justice and Audi alteram partem rule by providing that a
civil servant shall not be dismissed or removed from service or
reduced in rank against the charges levelled against him subject
to grant of reasonable opportunity of being heard in respect of
those charges but, this exception has been provided in clause (b)
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
of second proviso which postulates two conditions precedent,
which are as follows (i) there must be satisfaction to be recorded
by the competent authority and (ii) what is to be recorded that it
is not reasonable practicable to hold such inquiry. Whether it
was practicable to hold the inquiry or not must be judged in the
surrounding facts and circumstances in the context of whether it
was reasonably practicable to do so. It is not a total or absolute
impracticability which is required by clause (b) of the second
proviso. What is requisite is that the holding of such inquiry is
not practicable in the opinion of a reasonable man taking a
reasonable view of the prevailing situation. The reasonable
practicability of holding an inquiry is a matter of assessment to
be made by the disciplinary authority and must be judged in the
light of the circumstances then prevailing. The disciplinary
authority is generally on the spot and knows what is happening.
It is because the disciplinary authority is the best Judge of the
prevailing situation that clause (3) of Article 311 makes the
decision of the disciplinary authority on this issue is final.
Example can be set out in this manner that where a
civil servant, particularly through or together with his
associates, so terrorizes, threatens or intimidates witnesses who
are going to give evidence against him with fear or reprisal as to
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
prevent them from doing so, (b) where the civil servant by
himself or together with or through others threatens, intimidates
and terrorizes the officers who is the disciplinary authority or
members of his family so that he is afraid to hold the inquiry or
direct it to be held or where an atmosphere of violence or of
general indiscipline and insubordination prevails, it being
immaterial whether the concerned civil servant is or is not a
party to bringing about such a situation. In all these cases, it
must be remembered that numbers coerce and terrify while an
individual may not. The disciplinary authority is not expected to
dispense with a disciplinary inquiry lightly or arbitrarily or out
of ulterior motive or merely in order to avoid holding of an
inquiry or because the Department's case against the civil
servant is weak and must fail. It will not be reasonable and
practicable situation the civil servant would be deprived of
opportunity of hearing or further hearing, as the case may be.
When at the commencement of the inquiry or pending it, the
civil servant absconds and notice cannot be serve or will not
participate in the inquiry, it will not be reasonable practicable to
afford to the civil servant an opportunity of hearing or further
hearing. In such cases, the matter must proceed ex parte and on
the materials before the disciplinary authority. The recording of
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
the reasons for dispensing with the inquiry is a condition
precedent to the application of clause (b) of second proviso of
Article 311(2). This is a Constitutional obligation and if such
reason is not recorded in writing, the order dispensing with the
inquiry and the other of penalty, following thereon, would both
be void and unconstitutional. It is however, not necessary that
the reason should find a place in the final order but it would be
reasonable and practicable to record reasons to avoid an
allegation that the reason was not recorded in writing before
passing the final order but was subsequently fabricated. The
reasons for dispensing with the inquiry need not contain details
particulars but it cannot be vague or just a repetition of the
language of clause (b) of the second proviso. It is also not
necessary to communicate the reasons for dispensing with the
inquiry to the concerned civil servant but it would be better to
do so in order to eliminate the possibility of an allegation being
made that the reason was subsequently fabricated.
28. This issue came for consideration before the
Hon'ble Supreme Court in the case of Union of India vs. Tulsi
Ram Patel reported in AIR 1985 S.C. 1416. It will be relevant
to quote paragraph nos. 130, 131, 132, 133 and 134 of the said
judgment, which are as follows:-
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
"130. The condition precedent for the
application of clause (b) is the
satisfaction of the disciplinary authority
that "it is not reasonably practicable to
hold" the inquiry contemplated by clause
(2) of Article 311. What is pertinent to
note is that the words used are "not
reasonably practicable" and not
"impracticable". According to the Oxford
English Dictionary "practicable" means
"Capable of being put into practice,
carried out in action, effected,
accomplished, or done; feasible".
Webster's Third New International
Dictionary defines the word
"practicable" inter alia as meaning
"possible to practice or perform: capable
of being put into practice, done or
accomplished: feasible". Further, the
words used are not "not practicable" but
"not reasonably practicable". Webster's
Third New International Dictionary
defines the word "reasonably" as "in a
reasonable manner : to a fairly sufficient
extent". Thus, whether it was practicable
to hold the inquiry or not must be judged
in the context of whether it was
reasonably practicable to do so. It is not
a total or absolute impracticability which
is required by clause (b). What is
requisite is that the holding of the inquiry
is not practicable in the opinion of a
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
reasonable man taking a reasonable view
of the prevailing situation. It is not
possible to enumerate the cases in which
it would not be reasonably practicable to
hold the inquiry, but some instances by
way of illustration may, however, be
given. It would not be reasonably
practicable to hold an inquiry where the
government servant, particularly through
or together with his associates, so
terrorizes, threatens or intimidate
witnesses who are going to given
evidence against him with fear of reprisal
as to prevent them from doing so or
where the government servant by himself
or together with or through other
threatens, intimidates and terrorizes the
officer who is the disciplinary authority
or member of his family so that he is
afraid to hold the inquiry or direct it to
be held. It would also not be reasonably
practicable to hold the inquiry where an
atmosphere of violence or of general
indiscipline and insubordination prevails,
and it is immaterial whether the
concerned government servant is or is
not a party to bringing about such an
atmosphere. In this connection, we must
bear in mind that numbers coerce and
terrify while an individual may not. The
reasonable practicability of holding an
inquiry is a matter of assessment to be
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
made by the disciplinary authority. Such
authority is generally on the spot and
knows what is happening. It is because
the disciplinary authority is the best
judge of this that clause(3) of Article 311
makes the decision of the disciplinary
authority on this question final. A
disciplinary authority is not expected to
dispense with a disciplinary inquiry
lightly or arbitrarily or out of ulterior
motives or merely in order to avoid the
holding of an inquiry or because the
Department's case against the
government servant is weak and must
fail. The finality given to the decision of
the disciplinary authority by Article
311(3) is not binding upon the court so
far as its power of judicial review is
concerned and in such a case the court
will strike down the order dispensing
with the inquiry as also the order
imposing penalty. The case of Arjun
Chaubey v. Union of India and others,
[1984] 3 S.C.R. 302, is an instance in
point. In that case, the appellant was
working as a senior clerk in the office of
the Chief Commercial Superintendent,
Northern Railway, Varanasi. The Senior
Commercial Officer wrote a letter to the
appellant calling upon him to submit his
explanation with regard to twelve
charges of gross indiscipline mostly
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
relating to the Deputy Chief Commercial
Superintendent. The appellant submitted
his explanation and on the very next day
the Deputy Chief Commercial
Superintendent served a second notice on
the appellant saying that his explanation
was not convincing and that another
chance was being given to him to offer
his explanation with respect to those
charges. The appellant submitted his
further explanation but on the very next
day the Deputy Chief Commercial
Superintendent passed an order
dismissing him on the ground that he was
not fit to be retained in service. This
Court struck down the order holding that
seven out of twelve charges related to the
conduct of the appellant with the Deputy
Chief Commercial Superintendent who
was the disciplinary authority and that if
an inquiry were to be held, the principal
witness for the Department would have
been the Deputy Chief Commercial
Superintendent himself, resulting in the
same person being the main accuser, the
chief witness and also the judge of the
matter.
131. It was submitted that where a delinquent
government servant so terrorizes the
disciplinary authority that neither that
officer nor any other officer stationed at
that place is willing to hold the inquiry,
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
some senior officer can be sent from
outside to hold the inquiry. This
submission itself shows that in such a
case the holding of an inquiry is not
reasonably practicable. It would be
illogical to hold that the administrative
work carried out by senior officers
should be paralysed because a delinquent
government servant either by himself or
along with or through others makes the
holding of an inquiry not reasonably
practicable.
132. It is not necessary that a situation which
makes the holding of an inquiry not
reasonably practicable should exist
before the disciplinary inquiry is initiated
against a government servant. Such a
situation can also come into existence
subsequently during he course of an
inquiry, for instance, after the service of
a charge-sheet upon the government
servant or after he has filed his written
statement thereto or even after evidence
has been led in part. In such a case also
the disciplinary authority would be
entitled to apply clause (b) of the second
proviso because the word "inquiry" in
that clause includes part of an inquiry. It
would also not be reasonably practicable
to afford to the government servant an
opportunity of hearing or further
hearing, as the case may be, when at the
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
commencement of the inquiry or pending
it the government servant absconds and
cannot be served or will not participate
in the inquiry. In such cases, the matter
must proceed ex parte and on the
materials before the disciplinary
authority. Therefore, even where a part of
an inquiry has been held and the rest is
dispensed with under clause (b) or a
provision in the service rules analogous
thereto, the exclusionary words of the
second proviso operate in their full
vigour and the government servant
cannot complain that he has been
dismissed, removed or reduced in rank in
violation of the safeguards provided by
Article 311(2).
133. The second condition necessary for the
valid application of clause (b) of the
second proviso is that the disciplinary
authority should record in writing its
reason for its satisfaction that it was not
reasonably practicable to hold the
inquiry contemplated by Article 311(2).
This is a Constitutional obligation and if
such reason is not recorded in writing,
the order dispensing with the inquiry and
the order of penalty following thereupon
would both be void and unconstitutional.
134. It is obvious that the recording in writing
of the reason for dispensing with the
inquiry must proceed the order imposing
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
the penalty. The reason for dispensing
with the inquiry need not, therefore, find
a place in the final order. It would be
usual to record the reason separately and
then consider the question of the penalty
to be imposed and pass the order
imposing the penalty. It would, however,
be better to record the reason in the final
order in order to avoid the allegation that
the reason was not recorded in writing
before passing the final order but was
subsequently fabricated. The reason for
dispensing with the inquiry need not
contain detailed particular, but the
reason must not be vague or just a
repetition of the language of clause (b) of
the second proviso. For instance, it
would be no compliance with the
requirement of clause (b) for the
disciplinary authority simply to state that
he was satisfied that it was not
reasonably practicable to hold any
inquiry. Sometimes a situation may be
such that it is not reasonably practicable
to give detailed reasons for dispensing
with the inquiry. This would not, however,
per se invalidate the order. Each case
must be judged on its own merits and in
the light of its own facts and
circumstances."
Consideration of cases of permanent constables.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
29. Altogether, 164 probationer constables along with 4
permanent constables have been dismissed. At present, this
Court is dealing with the cases of 4 permanent constables
namely, Hawaldar -257 Damodar Paswan, Constable-1216
Sandeep Kumar, DPC-1122 Rajkishore Yadav and Constable
3607 Arun Kumar Choudhary. They have been dismissed from
service vide order dated (annexed as Annexure-11 of C.W.J.C.
No. 23925 of 2019) without holding departmental inquiry. It
goes without saying that they are permanent constables, so the
provision of Article 311(2) of the Constitution of India applies,
which prescribes that no civil person can be dismissed or
removed or reduced in rank except after an inquiry of the
charges and after giving reasonable opportunity of being heard
in respect of charges. In the impugned order, it has been
mentioned that they have been dismissed in exercise of power
under Article 311(2) without issuing any charge-sheet, without
giving any opportunity of being heard and without holding any
departmental inquiry of being heard. The impugned order does
not speak that the appointing authority has exercised the power
under sub-clause (b) of proviso 311(2) of the Constitution of
India, which speaks that the authority empowered to dismiss or
removed or reduced in rank for reasons to be recorded in writing
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
that it is not reasonably practicable to hold the inquiry but, no
such narration has been recorded in the order of dismissal and
they have been dismissed on account of an incident as one
Sabita Kumari Pathak, probationer constable, had fallen ill
while discharging her duty and ultimately died while getting
treatment in a hospital.
30. From the record, it appears that Sabita Kumari
Pathak, probationer constables, was on leave on account of her
illness from 07.10.2018 to 08.10.2018 and thereafter she joined
and was posted in traffic. At that time, she feel unwell,
therefore, she was brought to the Udayan hospital, Patna, where
she died during the treatment. Thereafter, the probationers along
with four permanent constables brought her dead body to new
Police line and they started raising slogans against the Deputy
Superintendent of Police (Trainee). They attacked on Dy. S.P.
(trainee) in his office with lathi, danda and stones, grievously
injured the police personnel posted there including the staffs and
employees and went on damaging C.C.T.V. cameras and
computers and also tore important files. They were indulged in
damaging the Government vehicles parked outside the office
and went to the extent of beating the Dy. S.P. and his family.
when he tried to hide himself in his residence causing head
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
injury and also destroyed his home appliances. The Dy. S.P.
along with his wife and daughters were admitted in the hospital
for severe head injuries. When, City Superintendent of Police
and other police Officers, on call, reached the place, tried to
pacify the mob, they not only defied the request and orders but,
also indulged in brick-batting and injured those police personnel
and damaged their vehicles. Everything was recorded in
C.C.T.V. camera etc. which was installed in the office of the
Dy.S.P. (Trainee). Thereafter, the Town Superintendent of
Police, West, Patna submitted a reported dated 03.11.2018
(Annexure-9/1) to the Senior Superintendent of Police, Patna,
with respect to the incident and the manner they have acted
upon. On the basis of the report, the Senior Superintendent of
Police, Patna, vide letter no. 7747 dated 04.11.2018 gave the
feedback to the Inspector General of Police, Patna Range, Patna,
and requested to grant permission to take action against 164
probationer constables and four permanent constables.
Whereupon, the Inspector General of Police, Patna Range,
Patna, vide impugned order dated 04.11.2018 has recorded that
171 probationer constables and 4 permanent constables have
committed misconduct and directed to dismiss their services.
31. Neither the order of Senior Superintendent of
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
Police nor the order of termination passed by the Inspector
General of Police, Patna Range, Patna, has shown that they have
exercised the power conferred under Article 311(2) of the
Constitution of India nor it has been recorded for dispensing
with enquiry nor recorded why it was not possible to hold
departmental inquiry which is condition precedent. In the case
of Satyavir Singh & Others vs Union Of India And Others
reported in AIR 1986 S.C. 555 the Hon'ble Supreme Court has
dealt with every aspects of the matter and it has been held that
while deciding the applicability of Article 311(2) the inquiry has
to be held in terms of Khem Chand vs The Union Of India &
Other reported in AIR 1958 S.C. 300. In this judgment, it has
been held that unless the appointing authority dispensed with the
departmental inquiry in terms of Article 311(2) (b) it is
mandatory requirement to hold inquiry, in failure to conduct the
inquiry, the termination order is completely void and ab initio
whatever the seriousness of the allegation, but as per the
provisions of the Constitution inquiry is a must by the
competent authority in terms of Article 311(2) of the
Constitution of India. However, in this case, this power has not
been exercised by the authority.
32. Learned counsel for the State has taken plea that
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
the disciplinary authority exercised the power under Clause (b)
of the provisions of Article 311(2) of the Constitution of India
and passed the order of dismissal but, neither any material has
been brought before the court nor in the counter affidavit filed
by the State, the respondents have made any whisper or word
that the authority has exercised the power of Article 311(2)(b) of
the Constitution of India, which is a condition precedent, as has
been stated hereinabove. So, in absence of any such material,
this Court cannot arrive to a conclusion that the petitioners have
been dismissed in exercised of power under Clause- b of Article
311(2) of the Constitution of India, so this argument of the State
is rejected.
33. Though the State has cited number of
judgments dealing with the provisions of Clause (b) of Article
311(2) of the Constitution of India but, no any material has been
brought on record for the perusal of the Court that such power
has been exercised by the competent authority.
34. In such view of the matter, the order of dismissal is
not sustainable and same is quashed.
Consideration of cases of probationer constables.
35. Now, this Court will consider the mater with
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
respect to cases of probationer constables as altogether 164
probationer constables have been dismissed and the plea has
been taken that the power of protection under Article 311(2)
does not apply to their cases as their performance is not up to
the mark, so they have been found unfit to continue in service
and they have been terminated from the service.
36. With regard to probationer constables, learned
counsel for the petitioners has placed reliance on the judgment
rendered in the case of Samsheer Singh vs. State of Punjab and
Another reported in (1974) 2 SCC 831, in which two Judicial
Officers, who were on probation, were terminated from the
service and the question arose with regard to applicability of
Article 311 of the Constitution of India. The Hon'ble Supreme
Court in paragraph no.62 of the said judgment has considered
the statutes of the probationers and placed reliance on the
judgment of Purshottam Lal Dhingra vs. Union of India
reported in AIR 1958 SC 36, in which Chief Justice Das, has
spoken for the Court and held that when a person is appointed to
a permanent post in Government service on probation the
termination of his service during or at the end of the period of
probation will not ordinarily and by itself be a punishment
because the Government servant so appointed has no right to
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
continue to hold such a post by more than a servant employed
on probation by a private employer is entitled to do so. Such a
termination does not operate as forfeiture of any right of a
servant to hold the post, for he has no such right. Obviously
such a termination cannot be a dismissal, removal or reduction
in rank by way of punishment. There are, however, two
important observations have been quoted; one is that if a right
exists under a contract or service unless to terminate the service
the motive operating on the mind of the Government is wholly
irrelevant. The other is that if the termination of service is
sought to be founded on misconduct, negligence, inefficiency, or
other disqualification, then it is punishment and violates Article-
311 of the Constitution. The reasoning why motive is said to be
irrelevant is that it inheres in the State of mind which is not
discernible. On the other hand, if termination is founded on
misconduct it is objective and is manifest.
In paragraph no.63 it has been held that no abstract
proposition can be laid down that where the services of a
probationer are terminated without saying anything more in the
order of termination than that the services are terminated, it can
never amount to a punishment in the facts and circumstances of
the case. If a probationer is discharged on the ground of
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
misconduct, or inefficiency or for similar reason without a
proper inquiry and without his getting a reasonable opportunity
of showing cause against his discharge it may in a given case
amount to removal from service within the meaning of Article
311(2) of the Constitution. It has further been held that when the
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 rule governing a probationer in this respect the authority
may come for 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. It has further been held that in some
cases be of the view that the conduct of the probationer may
result in simply discharge the probationer with a view to giving
him a chance to make good in other walks of the life without a
stigma at the time of termination of probation. If on the other
hand, the probationer is faced with an inquiry on charges of
misconduct or inefficiency or corruption, and if his services are
terminated without following the provisions of Article 311(2) he
can claim protection.
37. It will be relevant to quote paragraph nos. 62 to 67,
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
160 and 161 of the said judgment, which are as follows:-
"62. The position of a probationer. was
considered by this Court in Purshotam
Lal Dhingra v. Union of India [1958] S
C.R. 828 Das, C.J., speaking for the
Court said that where a person is
appointed to a permanent post in
Government service on probation the
termination of his service during or at the
end of the period of probation win not
ordinarily and by itself be a punishment
because the Government servant so
appointed has no right to continue to
hold such a post any more than a servant
employed on probation by a private
employer is entitled to do so. Such a
termination does not operates a forfeiture
of any right of a servant to hold the post,
for he has no such right. Obviously such
a termination cannot be a dismissal,
removal or reduction in rank by way of
punishment. There are, however, two
important observations of Das, C.J., in
Dhingra's case (supra). One is that if a
right exists under a contract or service
Rules to terminate the service the motive
operating on the mind of the Government
is wholly irrelevant. The other is that if
the termination of service is sought to be
founded on misconduct, negligence,
inefficiency or other disqualification,
then it is a punishment and violates
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
Article 311 of the constitution. The
reasoning why motive is said to be
irrelevant is that it inheres in the state of
mind which is not discernible. on the
other land, if termination is founded on
misconduct it is objective and is manifest.
63. No abstract proposition can be laid down
that where the services of a probationer
are terminated without saying anything
more in the, order of termination than
that the services are terminated it can
never amount to a punishment in the facts
and circumstances of the case. If a
probationer is discharged on the ground
of misconduct, or inefficiency or for
similar reason without a proper enquiry
and without his getting a reasonable
opportunity of showing cause against his
discharge it may in a given case amount
to removal from service within the
meaning of Article 311(2) of the
Constitution.
64. 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
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
involving moral turpitude the probationer
is unsuitable for the job and hence must
be discharged. No punishment is
involved, in this. 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. But
in those cases the authority may not hold
an inquiry and may simply discharge the
probationer with a view to giving him a
chance to make good in other walks of
life without a stigma at the time of
termination of probation. If, on the other
hand, the probationer is faced with an
enquiry on charges of misconduct or
inefficiency or corruption, and if his
services are terminated without following
the provisions of Article 311(2) he can
claim protection. In Gopi Kishore Prasad
v. Union of India A.I.R. 1960 S.C. 689 it
was said that if the Government
proceeded against the probationer in the
direct way without casting any aspersion
on his honesty or competence, his
discharge would not have the effect of
removal by way of punishment. Instead of
taking the easy course the Government
chose the more difficult one of starting
proceedings against him and branding
him as a dishonest and incompetent
officer.
65. The fact of holding an inquiry is not
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
always conclusive. What is decisive is
whether the order is really by way of
punishment. (See State of Orissa v.
Ramnarain Das. If there is an enquiry the
facts and circumstances of the case will
be looked into in order to find out
whether the order is one of dismissal in
substance, (See Madan Gopal v. State of
Punjab. In R. C. Lacy v. State of Bihar &
Ors. it was held that an order of
reversion passed following an enquiry
into the conduct of the probationer in the
circumstances of that case was in the
nature of preliminary inquiry to enable
the Government to decide whether
disciplinary action should be taken. A
probationer whose terms of service
provided that it could be terminated
without any notice and without any cause
being assigned could not claim the
protection of Article 311 (2). (See R. C.
Banerjee v. Union of India. A preliminary
inquiry to satisfy that there was reason to
dispense with the services of a temporary
employee has been held not to attract
Article 311 (See Champaklal G. Shah v.
Union of India. On the other hand, a
statement in the order of termination that
the temporary servant is undesirable has
been held to import an element of
punishment (See Jagdish Mitter v. Union
of India).
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
66. If the facts and circumstances of the case
indicate that the substance of the order is
that the termination is by way of
punishment then a probationer is entitled
to attract Article 311. The substance of
the order and not the form would be
decisive (See K. H. Phadnis v. State of
Maharashtra).
67. An order terminating the services of a
temporary servant or probationer under
the Rules of Employment and without
anything more will not attract Article
311. Where a departmental enquiry is
contemplated and if an enquiry is not in
fact proceeded with Article 311 will not
be attracted unless it can be shown that
the order though unexceptionable in form
is made following a report based on
misconduct (See State of Bihar v. Shiva
Bhikshu Mishra).
160. Thus we see how memberanous
distinctions have been evolved between
an enquiry merely to ascertain
unsuitability and one held to punish the
delinquent-to impractical and uncertain,
particularly when we remember that the
machinery to apply this delicate test is
the administrator, untrained in legal
nuances. The impact on the fired'
individual, be it termination of probation
or removal from service, is often the
same. Referring to the anomaly of the
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
object of inquiry, test, Dr. Tripathi has
pointed out :-
"The object of inquiry' rule
discourages this fair procedure
and the impulse of justice behind
it by insisting that the order
setting up the inquiry will be
judicially scrutinized for the
purpose of ascertaining the object
of the inquiry."
Again, could it be that if you summarily
pack off a probationer, the order is
judicially inscrutable and immune ? If
you conscientiously seek to satisfy
yourself about allegations by some sort
of enquiry you get caught in the coils of
law, however harmlessly the order may
be phrased? And, so this sphinx-complex
has had to give way in later cases. In
some cases the rule of guidance has been
stated to be the substance of the matter
and the foundation of the order. When
does motive trespass into foundation ?
When do we lift the veil of form to touch
the substance ? When the Course says so.
Those Freudian frontiers obviously fail in
the work-a-day world and Dr. Tripathi's
observations in this context are not
without force. He says
"As already explained, in a
situation where the order of
termination purports to be a mere
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
order of discharge without stating
the stigmatizing results of the
departmental enquiry a search for
the substance of the matter' will be
indistinguishable from a search
for the motive (real, unrevealed
object) of the order.
Failure to appreciate this
relationship between motive (the
real, but unrevealed object) and
from (the apparent, or officially
revealed object in the present
context has led to an unreal
interplay of words and phrases
wherein symbols like motive',
substance' form or direct parade
in different combinations without
communicating precise situations
or entities in the world of facts."
161. The need, in this branch of
jurisprudence, is not so much to reach
perfect justice but to lay down a plain
test which the administrator and civil
servant can understand without subtlety
and apply without difficulty. After all,
between unsuitability' and misconduct'
thin partitions do their bounds divide'.
And, over the years, in the rulings of this
Court the accent has shifted, the canons
have varied and predictability has proved
difficult because the play of legal light
and shade has been baffling. The learned
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
Chief Justice has in his judgment, tackled
this problem and explained the rule
which must govern the determination of
the question as to when termination of
service of a probationer can be said to
amount to discharge simpliciter and
when it can be said to amount to
punishment so as to attract the inhibition
of Art.311. We are in agreement with
what the learned, Chief Justice has said
in this connection. So far as the present
case is concerned, it is clear on the facts
set out in the judgment of the learned
Chief Justice that there is breach of the
requirements of Rule 7 and the orders of
termination passed against the appellants
are, on that account liable to be quashed
and set a side."
38. Another judgment has been placed reliance is
Chandra Prakash Shahi vs. State of U.P. and Ors. reported in
2000 (5) SCC 152. In that case appellant was recruited as a
constable in 34th Battalion, Pradeshik Armed Constabulary, U.P.
under the U.P. Pradeshik Armed Constabulary Act, 1948 and
thereafter he was placed on probation for a period of two years.
He completed his period of probation on 05.09.1988 but later
on, on 19.7.1989 his services were terminated by a simple notice
in terms of Rule 3 of U.P. Temporary Government Servants
(Termination of Service) Rules, 1975. The order of termination
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
was challenged by the appellant, which was allowed by the
Tribunal but, the High Court had set aside the order of the
Tribunal. Thereafter, the matter came for consideration before
the Hon'ble Supreme Court for considering the issue whether the
order of termination was innocuous order of simple termination
but, prayer was made that in reality it was a punishment which
is punitive in nature. The Hon'ble Supreme Court held that there
cannot be confirmation on the post on completion of period of
probation but, it requires a specific order of confirmation of
employee on the post held by him. In this case also the
probationer constables have claimed that they became
permanent constables as they have already completed 2 years of
service but, the present cases shows that they cannot be treated
to be a permanent employees as no order has been passed with
regard to confirmation of service so, for all process they would
be treated to be probationers. In paragraph no.12 of the said
judgment, the Hon'ble Supreme Court has considered the
applicability of Article 311(2) of the Constitution of India and it
has been held that temporary Government servants or
probationers are as much entitled to the protection of Article
311(2) of the Constitution of India as the permanent employees
despite the fact that temporary Government servants have no
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
right to hold the post and their services are liable to be
terminated at any time by giving them a month's notice without
assigning any reasons either in terms of the contract of service
or under the relevant statutory rules regulating the terms and
conditions of such service. The Court can, therefore, lift the veil
of an innocuously worded order to look at the real fact of the
order and to find out whether it is by way of simple termination
or in fact is dismissal on misconduct as has been held in
Purshottam Lal Dhingra (supra) and made a quotation from
that judgment. It has been explained in that decision that
inefficiency, negligence or misconduct may have been the
factors for inducing the Government to terminate the services of
a temporary employee under the terms of the contract or under
the statutory service rules regulating the terms and conditions of
service which, to put it differently, may have been the motive
for terminating the services but the motive by itself does not
make the order punitive unless the order was "founded" on
those factors or other disqualifications. The Hon'ble Supreme
Court has place reliance on the decision rendered in the case of
Ranendra Chandra Banerjee vs. Union of India AIR 1963
S.C. 1552 wherein it has been held that if the inquiry was held
for the limited purpose of finding out whether the employee was
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
fit to be retained or not, the said inquiry would not make the
order punitive as the inquiry could not be related to any
misconduct of the employee. It was further held that the order
by which the services of the employee were terminated was an
order simplicitor in nature, which was innocuously worded but,
it was held by the Court that the form of the order was not
decisive and the Court could go behind that order to find out
whether it was founded upon the misconduct of the employee.
39. So, this judgment gives a view that if the
termination is based upon a motive, will not attract Article-311
of the Constitution of India but the order is based on foundation,
in such circumstances, the Court will have duty to tear the veil
and to find out real fact of termination order. In this case also,
the Court has gone into the fact and arrived to a finding that it
was not really the motive of terminating the service on account
of inefficiency but, the foundation of the order was based on
commission of the misconduct.
40. It will be relevant to quote paragraph nos. 12, 13,
19, 20, 21, 23, 25, 26 and 29 of the said judgment, whch are as
follows:-
"12. Now, it is well-settled that the temporary
Government servants or probationers are
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
as much entitled to the protection of
Article 311(2) of the Constitution as the
permanent employees despite the fact
that temporary government servants have
no right to hold the post and their
services are liable to be terminated at
any time by giving them a month's notice
without assigning any reason either in
terms of the contract of service or under
the relevant statutory rules regulating the
terms and conditions of such service. The
courts can, therefore, lift the veil of an
innocuously worded order to look at the
real face of the order and to find out
whether it is as innocent as worded. (See:
Parshotam Lal Dhingra vs. Union of
India. It was explained in this decision
that inefficiency, negligence or
misconduct may have been the factors for
inducing the Government to terminate the
services of a temporary employee under
the terms of the contract or under the
statutory Service Rules regulating the
terms and conditions of service which, to
put it differently, may have been the
motive for terminating the services but
the motive by itself does not make the
order punitive unless the order was
"founded" on those factors or other
disqualifications.
13. Following the decision of Parshottam Lal
Dhingra's case (supra), this Court in
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
State of Bihar vs. Gopi Kishore Prasad,
held that if the services of a probationer
are terminated on the basis of an enquiry
into the allegations of misconduct and
inefficiency, the order would be punitive.
It was pointed out that in the case of a
probationer, it is always open to the
Government to hold an enquiry merely to
assess the merits of the employee to find
out whether he was fit to be retained in
service and confirmed. In another case
relating to a probationer, namely, in State
of Orissa vs. Ram Narayan Das, where
the services were governed by Rule 55-B
of the Civil Services (Classification,
Control and Appeal) Rules which
provided that where the services of a
probationer were intended to be
terminated either during the period of
probation or at the end of that period for
any fault or on account of his
unsuitability, he would be apprised of the
grounds of unsuitability and would also
be afforded an opportunity to show-cause
against it before orders are passed
against him, it was held that the
termination order would not become
punitive merely because of an antecedent
enquiry but the real object or purpose of
the enquiry had to be found out whether
it was held merely to assess the general
unsuitability of the employee or it was
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
held into charges of misconduct or
inefficiency etc. In Ranendra Chandra
Banerjee vs. Union of India, which again
was a case relating to a probationer, it
was held that on account of Rule 55-B of
the Civil Services (Classification, Control
and Appeal) Rules if the enquiry was held
for the limited purpose of finding out
whether the employee was fit to be
retained or not, the said enquiry would
not make the order punitive as the
enquiry could not be related to any
misconduct of the employee.
19. While the judicial pronouncements stood
at that stage, the entire case law was
reviewed by this Court in State of U.P. vs.
Ram Chandra Trivedi, in which it was
contended that the legal and
Constitutional position with regard to an
order of termination was not settled as
there were conflicting decisions of this
Court on that question. This contention
was not accepted and on a review of the
entire case law, including the Seven-
Judge Bench decision in Samsher Singh's
case (supra), it was laid down that the
Court has consistently held that the
"motive", in passing an order of
termination or reversion, operating in the
minds of the Govt. was not a relevant
factor for determining whether the order
was passed by way of punishment. What
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
was determinative of the true nature of
the order was not its exterior form but the
"foundation" on which it was based. If
misconduct or negligence was the
foundation of the order of termination, or
for that matter, reversion, the order
would be punitive in nature. The Court
also referred to the decision in Regional
Manager vs. Pawan Kumar Dubey, in
which it was observed as under. (SCC p.
338, para 7
"7. We think that the principles
involved in applying Article 311(2)
having been sufficiently explained
in Shamsher Singh's case (AIR
1974 SC 2192) (supra) it should
no longer be possible to urge that
Sughar Singh's case (supra) could
give rise to some misapprehension
of the law. Indeed, we do not think
that the principles of law declared
and applied so often have really
changed. But the application of
the same law to the different
circumstances and facts of various
cases which have come up to this
Court could create the impression
sometimes that there is some
conflict between different
decisions of this Court. Even
where there appears to be some
conflict, it would, we think, vanish
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
when the ratio decidendi of each
case is correctly understood. It is
the rule deducible from the
application of law to the facts and
circumstances of a case which
constitutes its ratio decidendi and
not some conclusion based upon
facts which may appear to be
similar. One additional or different
fact can make a world of
difference between conclusions in
two cases even when the same
principles are applied in each case
to similar facts." (Emphasis
supplied )
20. Termination simpliciter of a temporary
Govt. servant on the ground of
unsuitability does not attract the
provisions of Article 16, nor is the
protection under Article 311(2) of the
Constitution available to a temporary
Govt. servant unless the termination
involved "stigma", was the dictum laid
down by this Court in Commodore
Commanding, Southern Naval Area,
Cochin vs. V.N. Rajan.
21. In Gujarat Steel Tubes Ltd. vs. Gujarat
Steel Tubes Mazdoor Sabha, it was laid
down that a Court or Tribunal is entitled
to find out the true nature of the
termination order, namely, whether it is
punitive or not. In this regard, the form of
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
the order will not be decisive and the
Court can lift the veil to see the true
nature of the order. The Court observed
that the substance, not semblance,
governs the decision. The Court further
observed that what was decisive was the
plain reason for the discharge and not
the strategy of a non-enquiry. If the basis
was not the misconduct, the order could
be saved. The Court further observed that
the mere fact that after being satisfied of
the guilt the Govt. abandons the enquiry
and proceeds to terminate the services by
a simple order, would not be the relevant
factor in considering the true nature of
the order. Given an alleged misconduct
and a live nexus between it and the
termination of service, the conclusion
would be "dismissal" even if full benefits,
as on simple termination, are given and
non-injurious terminology is used.
23. Shesh Narain Awasthy vs. State of U.P.
& Ors. was a case of a temporary
Constable in the U.P. Police whose
services were terminated by an
apparently innocuous order. On scrutiny
it was found that the services were
terminated on account of his alleged
participation in activities of unrecognised
Police Karamchari Parishad. The
termination order, therefore, was held to
be bad as having been passed without
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
following the procedure prescribed under
Article 311(2) of the Constitution.
25. In State of U.P. vs. Kaushal Kishore
Shukla, which has been relied upon by
the High Court in the impugned
judgment, it was held that merely because
a preliminary enquiry was held against a
temporary Govt. servant, would not be a
ground to hold that an order, otherwise
innocuous on the face of it, by which the
services were terminated, was punitive in
nature. The decision in Nepal Singh vs.
State of U.P. was held to be per incuriam
as in that case, Champaklal's case
(supra) was not considered, but the Court
did observe that if on an overall
assessment of the work and conduct of
the employee the authority competent in
that behalf to terminate the service, is
satisfied that on account of the
employee's general unsuitability and
inefficiency or misconduct it would not
be in the public interest to retain him in
service, it may either terminate the
services by an innocuous order or may
proceed to take punitive action by
holding a regular departmental enquiry.
The Court, however, emphasised that the
termination has to be in accordance with
the terms and conditions of service
regulated by relevant rules.
26. In Radhey Shyam Gupta vs. U.P. State
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
Agro Industries Corporation Ltd. which
related to a probationer, the whole legal
position was reviewed by Brother M.
Jagannadha Rao, J., in an illuminating
and research- oriented judgment and
after considering various decisions
including the decision in Kaushal
Kishore Shukla's case (supra) and a still
later decision in Commissioner of Food
& Civil Supplies, Lucknow, U.P. vs.
Prakash Chandra Saxena, so as to trace
the development of law relating to this
aspect of service jurisprudence, laid
down that there has not been any conflict
of opinion inter se various judgments
including those laying down the "Motive"
and "Foundation" theory. It was held that
the question whether the order by which
the services were terminated was
innocuous or punitive in nature had to be
decided on the facts of each case after
considering the relevant facts in the light
of the surrounding circumstances. Benefit
and protection of Article 311(2) of the
Constitution is available not only to
temporary servants but also to a
probationer and the court in an
appropriate case would be justified in
lifting the veil to find out the true nature
of the order by which the services were
terminated.
29. "Motive" is the moving power which
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
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."
41. The petitioners have further place reliance on a
judgment rendered in the case of Anup Jaiswal vs. Government
of India & Another reported in (1984) 2 SCC 369. In this case
the appellant was selected and appointed as an I.P.S. Officer,
was under training as probationer on particular day he arrived at
about 22 minutes late at the place where P.T. / unarmed combat
practice was to be conducted although prior information was
sent in this regard but the delay was considered as an incident
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
which called for inquiry. The appellant was considered to be one
of the ring-leaders who was responsible for delay. The
explanation was called from all the probationers. The appellant
in his explanation sincerely regretted but denied the charge of
instigating others to report late. After receiving the explanation
of all the probationers including the appellant, they were
individually interviewed in order to ascertain facts. On the basis
of explanation and interview that too without following any
proper inquiry the Director recommended the Government of
India that appellant be discharged from the service and
accordingly, the Government of India accepted the
recommendation of the Director and discharge him from the
service under Rule-12(b) of Indian Public Service (Probation)
Rules, 1954 on the ground of being unsuitable for being a
member of the I.P.S. The matter reached to the Hon'ble Supreme
Court where the Hon'ble Supreme Court has considered the
previous judgment such as Purushottam Lal case (supra) and
Samsheer Singh (supra) and quoted the recital from there and
also considered similar judgments cited by Union of India and
ultimately made quotation from the judgment of Sukh Raj
Bahal's case (supra) where it has been laid down that it is only
when there is a full scale departmental inquiry envisaged by
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
Article 311(2) of the Constitution of India i.e. an enquiry officer
is appointed, a charge sheet submitted, explanation called for
and considered, any termination made thereafter, will, attract the
operation of Article 311(2). However, from the very same
judgment it has been stated that circumstances preceding and
attending circumstances led to the order of termination of
service have to be examined in each case, the motive being it
being immaterial. It has further been held that even an
innocuously worded order terminating the service may in the
fact and circumstances of the case establish that an enquiry into
allegations of serious and grave character of misconduct
involving stigma has been made is an infraction of the provision
311. Whereafter, it has been held that where the form of the
order is merely a camouflage for an order of dismissal for
misconduct it is always open to the Court before which the order
is challenged to go behind the form and ascertain the true
character of the order. If the Court holds that the order though in
the form is merely a determination of employment is in reality a
cloak for an order of punishment, the Court would not be
debarred merely because of the form of the order in giving
effect to the rights conferred by law upon each employee.
42. It will be relevant to quote paragraph no.12 of the
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
said judgment, which reads as under:-
12. It is, therefore, now well settled that
where the form of the order is merely a
camouflage for an order of dismissal for
misconduct it is always open to the Court
before which the order is challenged to
go behind the form and ascertain the true
character of the order. If the Court holds
that the order though in the form is
merely a determination of employment is
in reality a cloak for an order of
punishment, the Court would not be
debarred, merely because of the form of
the order, in giving effect to the rights
conferred by law upon the employee."
43. So, from this judgment, it shows that even if the
order is innocuously worded in a fit and proper case, the Court
has jurisdiction and duty to ascertain the true character of the
order and to find out that in order to avoid applicability of
Article 311(2) of the Constitution of India. The order of
termination has been dropped in such a manner gives the look of
simple termination.
44. Now, let us examine the judgments cited by learned
counsel for the State of Bihar. The Stat has taken a plea that the
order innocuously worded, the act of violence of the
probationers may be a motive but not a foundation for
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
termination of service as they were still in probation they were
not fit to be allowed to continue in uniform discipline service as
it will lead to disadvantageous situation to allow them to
continue in the Police Department.
45. In support of his submission, he has placed reliance
on the decision rendered in the case of Rajesh Kohli v. High
Court of Jammu & Kashmir reported in (2010)12 SCC 783. In
this case, the petitioner was recommended by the High Court of
Jammu and Kashmir for appointment as the District and
Sessions Judge on a temporary basis. The aforesaid
recommendation of the High Court was accepted by
Government of Jammu and Kashmir and an order of
appointment was issued to him appointing him as the District
and Sessions Judge on a temporary basis. It was clearly
mentioned in the said order of appointment that the petitioner
would remain on probation for a period of two years a provided
under the Jammu and Kashmir Higher Judicial Service Rules.
Consequent upon the aforesaid temporary appointment, the
petitioner was appointed as 3rd Additional District and Sessions
Judge, Srinagar and from where he was transferred and posted
as Additional District and Sessions Judge, Jammu and Kashmir.
Allegation of corruption was attributed against him. The said
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
complaint was inquired into by the Chief Justice of the High
Court through the Registrar (Vigilance) of the High Court. The
Registrar inquired into the matter and submitted its report. The
matter was referred to the disciplinary committee for necessary
action. Whereafter, the service of the petitioner was dispensed
with holding that his services are not found to be satisfactory
and as such his services are dispensed with. The matter came up
before the Hon'be Supreme Court where the Hon'ble Supreme
Court has held that the order of termination is a fall out of his
unsatisfactory service adjudged on the basis of his overall
performance and the manner in which he conducted himself.
Such satisfaction even if recorded that his service is
unsatisfactory would not make the order stigmatic or punitive as
sought to be submitted by the petitioner.
46. It will be relevant to quote paragraph no.18, 19, 20
of the said judgment, which reads as follows:-
18. In our considered opinion, none of the
aforesaid two orders could be said to be
a stigmatic order as no stigma is
attached. Of course, aforesaid letters
were issued in view of the resolution of
the full court meeting where the full court
of the High Court held that the service of
the petitioner is unsatisfactory. Whether
or not the probation period could be or
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
should be extended or his service should
be confirmed is required to be considered
by the full court of the High Court and
while doing so necessarily the service
records of the petitioner are required to
be considered and if from the service
records it is disclosed that the service of
the petitioner is not satisfactory it is open
for the respondents to record such
satisfaction regarding his unsatisfactory
service and even mentioning the same in
the order would not amount to casting
any aspersion on the petitioner nor it
could be said that stating in the order
that his service is unsatisfactory amounts
to a stigmatic order.
19. This position is no longer res integra and
it is well- settled that even if an order of
termination refers to unsatisfactory
service of the person concerned, the same
cannot be said to be stigmatic. In
Pavanendra Narayan Verma v. Sanjay
Gandhi PGI Of Medical Sciences
reported in (2002) 1 SCC 520, this Court
has explained at length the tests that
would apply to determine if an order
terminating the services of a probationer
is stigmatic. On the facts of that case it
was held that the opinion expressed in
the termination order that the
probationer's "work and conduct has not
been found satisfactory" was not ex facie
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
stigmatic and in such circumstances the
question of having to comply with the
principles of natural justice do not arise.
In this case court had the occasion to
determine as to whether the impugned
order therein was a letter of termination
of services simpliciter or stigmatic
termination. After considering various
earlier decisions of this Court in para 21
of the aforesaid decision it was stated by
this Court thus: (SCC p. 528)
"21. One of the judicially evolved
tests 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 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
anyone of the three factors is missing,
the termination has been upheld."
In para 29 of the judgment, it further held
thus: (SCC, p.529)
"29. Before considering the facts of
the case before us one further,
seemingly intractable, area relating
to the first test needs to be cleared
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
viz. what language in a termination
order would amount to a stigma?
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.
The decisions cited by the parties
and noted by us earlier, also do not
hold so. In order to amount to a
stigma, the order must be in a
language which imputes something
over and above mere unsuitability
for the job."
20. In the case of Krishnadevaraya
Education Trust v. L.A. Balakrishna
reported in (2001) 9 SCC 319, the
services of respondent-Assistant
Professor were terminated on the ground
that his on the job proficiency was not
upto the mark. This Court held that
merely a mention in the order by the
employer that the services of the
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
employee are not found to be satisfactory
would not tantamount to the order being
a stigmatic one. This Court held in para
5 thus: -
"5. There can be no manner of doubt
that the employer is entitled to engage
the services of a person on probation.
During the period of probation, the
suitability of the recruit/appointee has
to be seen. If his services are not
satisfactory which means that he is
not suitable for the job, then the
employer has a right to terminate the
services as a reason thereof. If the
termination during probationary
period is without any reason, perhaps
such an order would be sought to be
challenged on the ground of being
arbitrary. Therefore, normally
services of an employee on probation
would be terminated, when he is
found not to be suitable for the job for
which he was engaged, without
assigning any reason. If the order on
the face of it states that his services
are being terminated because his
performance is not satisfactory, the
employer runs the risk of the
allegation being made that the order
itself casts a stigma. We do not say
that such a contention will succeed.
Normally, therefore, it is preferred
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
that the order itself does not mention
the reason why the services are being
terminated."
6. If such an order is challenged, the
employer will have to indicate the
grounds on which the services of a
probationer were terminated. Mere
fact that in response to the
challenge the employer states that
the services were not satisfactory
would not ipso facto mean that the
services of the probationer were
being terminated by way of
punishment. The probationer is on
test and if the services are found not
to be satisfactory, the employer has,
in terms of the letter of appointment,
the right to terminate the services."
47. Learned counsel for the State has also placed
reliance on a decision rendered in the case of Pavendra
Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Science
of Anr. reported in (2002) 1 SCC 520.
48. Learned counsel for the State has put very much
emphasis in this judgment and stated that in view of the
aforesaid judgment, the termination of the petitioners cannot be
treated to be stigmatic or any way inflicting the punishment
merely his services were not found fit in continue in service. It
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
will be fruitful to examine the matter thoroughly in the present
case. In this case, the appellant namely, Pavendra Narayan
Verma was appointed on 10.04.1996 to the post of Joint Director
(Materials Management). As per the appointment letter, his
appointment was temporary and can be terminated on one
month's notice from either side or in lieu of this notice on
payment of a sum equivalent to one months salary. The period
of probation was extended on two occasions and ultimately on
06.02.1998 the impugned order of terminated was issued where
it has been mentioned that during the period of your work and
conduct was not found satisfactory and therefore, your probation
was extended for a period with effect from 30.0.1997 vide office
order PG/DIR/DC/479/97 dated 23.06.1997. Again vide office
order no. 811 PG/DIR/DC dated 27.10.1997 your probation was
further extended for three months with effect from the forenoon
of 30.10.1997. Even during this period your work and conduct
has not been found to be satisfactory and thereafter it has been
mentioned that in terms of Rule no. 3 and 4 of the appointment
letter, his services were terminated with immediate effect and
for the period a cheque no. VR/00/5856 dated 05.02.1998 for
Rs. 11,070/- in lieu of one months notice is enclosed. The
Hon'ble Supreme Supreme Court considered the judgment of
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
Purushottam Lal case (supra) and in paragraph no.21 it has
been held that one of the judicially evolved test 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
inquiry (b) if the allegation involving moral turpitude or
misconduct and (c) culminated in a finding of guilt. If all three
factors are present the termination is held to be punitive
irrespective of the form of the termination order and conversely
if any of the three factors is missing, the termination is to be
upheld. It has also been held that whenever a probationer
challenges his termination the courts first task will be to apply
the test of stigma or the form test. If the order survives this
examination the substance of the termination will have to be
found out. On that basis, learned counsel for the State, in that
case, submitted that misconduct, negligence, inefficiency or
other disqualifications may be the motive or the inducing factor
which influences the Government to take action under the terms
of the Contract of employment or under the specific service
rules, nevertheless, if a right exists under the contract or the
rules, to terminate the service the motive operating on the mind
of the Government, that will not attract provisions of Article
311(2) of the Constitution of India. If the termination of service
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
is based on the right flowing from contract of the service rules
then prima facie the termination is not a punishment and carries
with it no evil consequences and so Article-311(2) would not
attracted. In some paragraph it has been held that the
Government may, nevertheless choose to punish for inefficiency
or other disqualification then, it is a punishment and the
requirement of Article 311 must be complied with.
49. So, this paragraph itself make it very clear that in
terms of conditions of service the negligence and incompetence
may be a motive but the foundation is not inflicting punishment,
then, in that circumstance, Article 311(2) does not apply.
50. It will be relevant to quote paragraph nos. 14 to 30
and 32 of the said judgment, which reads as under:-
14. If punishment were restricted to evil
consequences, the Courts task in
deciding the nature of an order of
termination would have been easier.
Courts would only have to scan the
termination order to see whether it ex-
facie contains the stigma or refers to a
document which stigmatises the officer, in
which case the termination order would
have to be set aside on the ground that it
is punitive. In these cases the evil
consequence must be assessed in relation
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
to the blemish on the employees
reputation so as to render him unfit for
service elsewhere and not in relation to
the post temporarily occupied by him.
This perhaps is the underlying rationale
of several of the decisions on the issue.
15. In V.P. Ahuja V. State of Punjab and
Others cited by the appellant, the Court
construed the language of the order and
found that it was ex-facie stigmatic.
16. In Krishnadevaraya Education Trust &
Anr. v. L.A. Balakrishna , the first letter
of termination mentioned that the
Committee appointed to go into the
question of general performance of each
staff had found that the employee, who
had been appointed on probation, was
not upto the mark. This was followed by a
second order of termination which did
not refer to the employees performance at
all. The Court held that it was preferable
that the order of termination did not
mention that the employees performance
was not satisfactory as then the employer
runs the risk of the allegation being made
that the order itself casts a stigma.
Nevertheless, the Court held that the
reasons stated in the first order did not
mean that the termination may be by way
of punishment because "the probationer
is on test and if the services are found not
to be satisfactory, the employer has, in
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
terms of the letter of appointment, the
right to terminate the services."
17. Finally, this Court in H.F. Sangati V.
Register General, High Court of
Karnataka and Others dealt with the
question whether an order terminating
the appointment of a probationer Munsif
could be considered to be punitive. In
that case during the period of probation,
several adverse remarks had been made
in the confidential records of the
probationer. The Administrative
Committee of the High Court considered
these confidential records and came to
the conclusion that the appellant was not
fit to be confirmed in the post of a
judicial officer. They recommended to the
High Court accordingly. The High Court
accepted the recommendation at a Full
Court meeting and referred the matter to
the State Government. The State
Government accepted the
recommendation and discharged the
probationer from service. The order of
termination mentioned that the employee
was unsuitable to hold the post of Munsif.
The Court held that the order did not cast
any stigma on the employee and was not
punitive.
18. But the law does not rest there. In
Shamsher Singh v. State of Punjab, the
Courts were asked to look behind the
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
form of the order to find out whether the
termination was in substance punitive. So
when a full scale inquiry is held against a
probationer or a temporary appointee
and he is found guilty, an order
terminating his services for this reason
has been seen as punitive and bad. It is
this search for the substance behind the
form of the order of punishment which
has lead to some apparently conflicting
decisions.
19. Thus some Courts have upheld an order
of termination of a probationers services
on the ground that the enquiry held prior
to the termination was preliminary and
yet other courts have struck down as
illegal a similarly worded termination
order because an inquiry had been held.
Courts continue to struggle with
semantically indistinguishable concepts
like motive and foundation; and
terminations founded on a probationers
misconduct have been held to be illegal
while terminations motivated by the
probationers misconduct have been
upheld. The decisions are legion and it is
an impossible task to find a clear path
through the jungle of precedents.
20. As observed by Alagiriswamy, J. in S.P.
Vasudeva V. State of Haryana and Others
1976 (1) SCC 236, at p. 240:
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
"After all no government servant, a
probationer or temporary, will be
discharged or reverted, arbitrarily,
without any rhyme or reason. If the
reason is to be fathomed in all cases
of discharge or reversion, it will be
difficult to distinguish as to which
action is discharge or reversion
simplicitor and which is by way of
punishment. The whole position in
law is rather confusing."
21. One of the judicially evolved tests 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.
22. The three factors are distinguishable in
the following passage in Shamsher Singh
v. State of Punjab (supra) where it was
said:
"Before a probationer is confirmed
the authority concerned is under an
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
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. No
punishment is involved in this. 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. But in those
cases the authority may not hold an
inquiry and may simply discharge the
probationer with a view to giving him
a chance to make good in other walks
of life without a stigma at the time of
termination of probation. If, on the
other hand, the probationer is faced
with an enquiry on charges of
misconduct or inefficiency or
corruption, and if his services are
terminated without following the
provisions of Article 311(2) he can
claim protection. (Emphasis supplied)
23. Thus in Benjamins case (supra),
complaints had been received against a
temporary employee. A notice had been
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
sent to the employee to show cause why
disciplinary action should not be taken
against him. The inquiry officer was
appointed but before the inquiry was
completed, the services of the employee
were terminated with one months salary
in lieu of notice. The Constitution Bench
upheld the order of termination and drew
a distinction between a preliminary
inquiry and a departmental inquiry. It
was held that a preliminary inquiry held
to satisfy the Government whether there
was no reason to dispense with the
services of the temporary employee
should not be mistaken for a
departmental inquiry held to decide
whether punitive action should be taken.
24. In State of Uttar Pradesh and Another V.
Kaushal Kishore Shukla, the employee
had been appointed on a temporary basis
for a fixed tenure. During the period of
his service, adverse entries were made in
his character roll. Complaints were also
received by the auditors of the employer.
A summary inquiry was held. It was
found that the auditors complaint was
correct. The employee was transferred to
another post. He did not join and the
employer terminated his services. This
Court, while upholding the order of
termination, said that the mere fact that
prior to the issue of the termination an
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
inquiry was held against the employee
did not make the order of termination
into one of punishment.
25. In Radhey Shyam Gupta v. U.P. State
Agro Industries Corporation Ltd. and
Another a full scale inquiry was held into
the allegations of bribery against a
temporary employee. The Court set aside
the termination because it found that the
report submitted was not a preliminary
inquiry report but it was in fact a final
one which gave findings as to the guilt of
the employee.
26. In Dipti Prakash Banerjee V. Satyendra
Nath Bose National Centre for Basic
Sciences, Calcutta and Others the
termination order itself referred to three
other letters. One of the letters explicitly
referred to misconduct on the part of the
employee and also referred to an Inquiry
Committees report, which report in its
turn had found that the employee was
guilty of misconduct. The termination
was held to be stigmatic and set aside.
27. The case of Chandra Prakash Shahi v.
State of U.P. and Others related to a
constable who was on probation after
successfully completing his training. The
constable completed his period of
probation without blemish. One year
later, his services were terminated by
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
issuance of a notice in terms of Rule 3 of
the U.P. Temporary Government Servants
(Termination of Service) Rules, 1975. An
inquiry was held into the allegations of
misconduct. The Court found as a fact
that the inquiry was not held to judge the
suitability of the constable but with a
view to punish him. The order was held
to be punitive and set aside.
28. Therefore, whenever a probationer
challenges his termination the courts first
task will be to apply the test of stigma or
the form test. If the order survives this
examination the substance of the
termination will have to be found out.
29. Before considering the facts of the case
before us one further, seemingly
intractable, area relating to the first test
needs to be cleared viz. what language in
a termination order would amount to a
stigma? Generally speaking when a
probationers 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 probationers
appointment, is also not stigmatic. The
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
decisions cited by the parties and noted
by us earlier, also do not hold so. In
order to amount to a stigma, the order
must be in a language which imputes
something over and above mere
unsuitability for the job.
30. As was noted in Dipti Prakash Banerjee v.
Satyendra Nath Bose National Centre for
Basic Sciences (supra)
"At the outset, we may state that in
several cases and in particular in State of
Orissa v. Ram Narayan Das, it has been
held that use of the word unsatisfactory
work and conduct in the termination
order will not amount to a stigma."
51. Learned counsel for the State has also placed
reliance on a decision of this Court rendered in the case of
Pankaj Kumar vs. The LIC of India and Ors. reported in
2019(20) SCC 288 wherein same view has been reiterated.
52. Another judgment has been placed reliance by the
State is Radhey Shyam Gupta vs. Uttar Pradesh State Agro
Industries Corporation Limited reported in (1999) 2 SCC 21. In
the aforesaid case, earlier judgment such as Rajesh Kohli
(supra) and Pavendra Narayan Verma (supra) have been taken
into considered, affirmed the aforesaid view, so does not require
deliberation.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
53. Learned counsel for the State has also placed
reliance on a decision rendered in the case of Oil and Natural
Gas Commission vs. Mohd S. Iskenderali reported in AIR 1980
SC 1242. That case also related to probationers wherein the
period of probation has been extended and ultimately the
appellant has been terminated from the service. In paragraph
no.12, it has been held that misconduct, negligence, inefficiency
may be the motive or the inducing factor which influences the
employer to terminate the services of the employee, a power
which the employer undoubtedly possessed even so as under the
terms of appointment of employee such power flowed from the
contract of service it could not be termed as punishment.
Analysis of facts with respect to probationers
constables
54. This Court has already narrated the incident and
also stated that in what manner the probationer constables and
permanent constables have misbehaved, assaulted and damaged
the public property and private properties, misbehaved with
higher officials. They have have not even left the family
members of Deputy Superintendent of Police and they entered
into the house and broken the home appliances. This Court has
also mentioned about the inquiry report dated 03.11.2018. In the
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
said inquiry report, the Town Superintendent of Police, West,
Patna and recommended to take serious disciplinary action
against identified police personnel indulged in violence.
Similarly, Senior S.P., Patna, in his report dated 04.11.2021 also
communicated the Inspector General of Police, Patna Range,
Patna, that 164 probationers and 4 permanent constables have
been identified to be indulged in rampaging, causing harm and
their behaviour is unbecoming to remain as member of Police
Force and recommended to take severe action against 164
probationer constables and 4 permanent constables. Whereafter,
vide order dated 04.11.2018, the Inspector General of Police has
passed the order in the following manner:-
"उपयु कत ववषय के संदवर मे आपके दारा
प्रसंगाधीन पत्र के माधयम से प्रेवषत
ववषयांवकत घटना से समभंवदत ववशतृ त जाँच
प्रवतवे दन एवं आपके मनतबय से सहमत होते हुए
कुल १७१ अयोगय एवं दोषी प्रवशकु वसपावहयों
तथा अनय ०४ दोषी वसपावहयों को से वा से
बरार सत करने का वनदर श वदया जाता है "
55. So, the Inspector General of Police has used two
words against probationers viz. incompetent and guilty. So in
this manner, the order of termination was issued in which the
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
word has been used that they are unfit to continue in the
department and as such, their services have been terminated.
56. In the present case, the question is that whether the
action was merely a motive or foundation. it will be appropriate
to consider certain paragraph of the counter affidavit which has
been filed by the City Superintendent of Police (Central), Patna.
Paragraph nos. 4, 5, 6, 8, 9 of the counter affidavit gives the
details of the incident took place. In paragraph no.10, it has been
stated that criminal case has been lodged against erring police
officials. In paragraph no.13 it has been stated that Zonal I.G.
Patna perused the entire fact mentioned in the inquiry report and
agreed with the opinion of the Senior Superintendent of Police,
Patna, and subsequently Inspector General of Police, Patna
Range, Patna, directed the Senior Superintendent of Police,
Patna, to terminate all the answerable/guilty Police personnel,
who were involved in such violent behaviour and consequently
164 newly appointed constables who were found unfit for
discharging the duties of constables were terminated from the
service vide order no. 4522/18 contained in memo no.
13624/R.O. dated 04.11.2018. Besides this, one Havaldar and
three constables were also ordered to be dismissed from the
police service under Section 311(2) of the Constitution of India.
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
57. So, the above statements itself show that action has
been taken by way of punishment based on foundation act of
violence in which 164 probationer constables were found
involved have been terminated along with 4 permanent
constables. They have not brought any material to show that
their period of probation has been extended on account to their
inefficient discharge of duty nor any record has been brought to
show that the performance of the probationer constables was not
upto the marks but, only real fact are coming out from the
record that it is the incident, in which all the police personnel
involved, was the foundation of termination of service of the
probationer constables and their termination is held to be illegal
and same is quashed.
Conclusion.
58. For the reasons stated hereinabove, this Court holds
that action of the respondents cannot be approved. Accordingly,
the impugned order of termination passed against probationer
constables contained in Memo no. 13624 dated 04.11.2018 and
order of termination passed against permanent constables
contained in Memo No.13625 dated 04.11.2018 issued under the
signature of Senior Superintendent of Police, Patna, are
quashed. However, liberty is given to the authority, if they so
Patna High Court CWJC No.23925 of 2018 dt.03-05-2021
like, they may take appropriate action in accordance with law
and the rule applicable to them.
59. In the result, all the writ petitions filed by the
permanent constables and probationer constables are allowed to
the above extent with liberty to the respondents, as mentioned
hereinabove.
(Shivaji Pandey, J)
pawan/-
AFR/NAFR N.A.F.R
CAV DATE 26.03.2021
Uploading Date 05.05.2021
Transmission Date
