Baljinder Singh vs State Of Punjab & Anr.

The jurisdiction of this Court under Article 226 of the Constitution of India has been invoked by the petitioner seeking issuance of a writ in the nature of Certiorari seeking quashing of the impugned order dated 17.07.2014 (Annexure P-9) with a further prayer for issuance of a writ in the nature Mandamus directing the respondent-State to re-instate him in service with effect from the date of passing of the impugned order (Annexure P-9) along-with interest @12% per annum and also to give promotion with effect from the date his juniors are promoted.

The brief facts of the present case are that the petitioner was directly recruited through the Punjab Public Service Commission to the PCS Allied Services and appointed as Excise and Taxation Officer on 18.07.2012, joining service on 24.07.2012. On 16.12.2013, a complaint was lodged against him by Shri Bhushan Kumar Aggarwal, alleging demand of ₹5 lakhs in connection with assessment proceedings, payment of ₹50,000 through a middleman and subsequent settlement of the demand. The petitioner denied the allegations and, during the preliminary enquiry conducted by respondent No.2, specifically disputed the alleged transaction and the audio recording relied upon by the complainant. Although the enquiry report itself recorded material circumstances casting doubt on the allegations, respondent No.2 nevertheless concluded that there appeared to have been some “give and take” between the petitioner and the complainant and recommended action against him. On 29.05.2014, the Additional Excise and Taxation Commissioner recommended his dismissal during probation, without supplying the said recommendation/report to the petitioner. Consequently, the petitioner was terminated from service on 17.07.2014 during probation. His representation dated 15.09.2014 remained undecided, compelling him to approach this Court by way of the present petition.

Learned counsel for the petitioner has submitted that the impugned order of termination is wholly unsustainable, having been passed on the basis of a preliminary enquiry report which itself contains material inconsistencies and does not establish any misconduct against the petitioner. It was argued that the petitioner had specifically denied the allegations as well as the alleged audio recording, and the recording did not conclusively establish any demand or acceptance of illegal gratification by him. It was further contended that the alleged complaint did not even mention the CD/audio recording, yet the same was subsequently relied upon during the enquiry without affording the petitioner a proper opportunity to meet the material relied upon against him. Learned counsel further submitted that the recommendation dated 29.05.2014, on the basis of which the petitioner was terminated during probation, was never supplied to him and was obtained by him only under the RTI Act, thereby denying him a fair opportunity to rebut the same. It was thus argued that the termination, though couched as an order simpliciter during probation, was founded upon allegations of misconduct and the adverse preliminary enquiry report and was therefore punitive in substance, attracting the requirements of natural justice.

On these grounds, learned counsel prayed that the impugned order of termination be quashed and the petitioner be granted consequential reliefs in accordance with law.

Learned State counsel submits that the petitioner was admittedly on probation when his services were dispensed with vide order dated 17.07.2014. A complaint regarding his conduct had led only to a preliminary inquiry for assessing his suitability and worthiness to continue in service. No charge-sheet was issued, no regular departmental inquiry was conducted and no finding of guilt was recorded against the petitioner.

It is further submitted that the impugned order merely dispensed with the petitioner’s services in terms of the conditions of his appointment read with Rule 7.2(a) of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994, without referring to any misconduct or casting any stigma upon him. The preliminary inquiry was merely the motive and not the foundation of the termination.

Relying upon Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 and Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd., (1999) 2 SCC 21, it is contended that such termination of a probationer is termination simpliciter and does not require a regular departmental inquiry. Accordingly, dismissal of the writ petition is prayed for.

Having considered the rival contentions and the stand taken by the respondent-State, the principal issue which arises for consideration is whether the order dated 17.07.2014, whereby the services of the petitioner were dispensed with during the period of probation, is an order of termination simpliciter or is, in substance, punitive and stigmatic so as to attract the protection of Article 311 of the Constitution and the requirement of a regular departmental inquiry.

It is not in dispute that the petitioner was serving as an Excise and Taxation Officer on probation when the impugned order was passed. The record, as reflected in the reply filed by the State, shows that a complaint dated 16.12.2013 had been received against the petitioner in relation to the assessment proceedings of H.D. Food Products (P) Ltd. A preliminary inquiry was conducted by the Deputy Excise and Taxation Commissioner, Jalandhar Division, Jalandhar. The petitioner was put to notice, submitted his reply and also furnished a written statement during the preliminary inquiry. The inquiry culminated in a report dated 16.05.2014.

Significantly, the petitioner did not altogether dispute the telephonic interaction with the complainant. The stand attributed to him in the State's reply is that he denied demanding any bribe and explained the conversation as pertaining to a meeting. He also admitted having made a call to the complainant, while furnishing an explanation for the same. These circumstances were considered by the Deputy Excise and Taxation Commissioner in the course of the preliminary exercise.

The crucial consideration, however, is not merely the existence of allegations or the holding of a preliminary inquiry. What has to be examined is the purpose and effect of such inquiry and whether the alleged misconduct constituted the foundation of the order of termination or merely supplied the motive for the competent authority to assess the suitability of the probationer for retention in service.

In this regard, the impugned order assumes significance. As pleaded by the respondents, the order dated 17.07.2014 merely dispensed with the services of the petitioner with immediate effect in terms of clause 2(2) of the appointment letter. It did not incorporate the allegations contained in the complaint, did not record that the petitioner had demanded or accepted illegal gratification, and did not return any finding of misconduct or guilt. The State has specifically pleaded that the action was taken against the petitioner in his capacity as a probationer under the applicable conditions of appointment read with Rule 7.2(a) of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994.

The distinction between an inquiry held for the purpose of determining the suitability of a probationer and an inquiry held for establishing misconduct is well recognised. The mere fact that some preliminary examination of allegations preceded the termination would not, by itself, render the resultant order punitive. The material gathered during such exercise may legitimately constitute the motive for the employer to consider whether the probationer deserves to be continued in service. It is only where the employer proceeds to determine the truth of the allegations through a full-scale inquiry, records a finding of guilt and bases the termination upon such finding that the misconduct can be regarded as the foundation of the order.

The principles relied upon by the State from Pavanendra Narayan Verma’s case supra, are directly relevant to this distinction. The test referred to in the reply is whether, prior to termination, there was a full-scale formal inquiry into allegations involving misconduct or moral turpitude which culminated in a finding of guilt. Where all such features exist, termination may be punitive notwithstanding the form of the order; conversely, absence of the essential ingredients supports the characterisation of the action as termination simpliciter.

Tested on the aforesaid touchstone, the material placed on record, as reflected in the State's counter-affidavit, does not indicate that a regular departmental inquiry was instituted against the petitioner. No charge-sheet under the Punjab Civil Services (Punishment and Appeal) Rules, 1970 was issued; no full-fledged disciplinary inquiry for establishing guilt was undertaken; and no finding holding the petitioner guilty of the alleged misconduct preceded the impugned order. The respondents have categorically pleaded that the preliminary inquiry was undertaken only to assess whether the petitioner, being on probation, was worthy of being retained in service.

The position is further fortified by the principles noticed in Radhey Shyam Gupta’s case supra. As noticed in the reply, an adverse assessment or preliminary inquiry undertaken with a view to decide whether a probationer should be retained in service constitutes the motive for termination and does not necessarily become its foundation. A preliminary inquiry may legitimately be undertaken to ascertain whether sufficient material exists and whether the employee ought to be continued, without thereby converting the eventual discharge into punishment.

The contention regarding violation of principles of natural justice on account of non-supply of material, absence of forensic examination of the audio recording/CD, or denial of an opportunity to cross-examine witnesses also cannot advance the petitioner's case in the factual framework pleaded by the respondents. Such procedural safeguards would necessarily assume significance if the proceedings were disciplinary in nature and intended to culminate in a finding of misconduct. Once the preliminary exercise is found to have been undertaken only for assessing the suitability of a probationer, and no finding of guilt forms the basis of the termination order, the absence of the procedural incidents of a regular departmental inquiry would not, by itself, invalidate an otherwise innocuous order of discharge. The State specifically maintains that the preliminary report was not the foundation of the impugned order but merely material for assessing whether the petitioner was worthy of remaining in service.

Equally important is the language and legal effect of the order itself. There is nothing in the State's account of the order to suggest that it expressly attributes dishonesty, corruption or any other misconduct to the petitioner. The allegations contained in the departmental material have not been incorporated into the termination order. An order which merely dispenses with the services of a probationer in accordance with the governing service conditions cannot be treated as stigmatic merely because certain adverse material prompted the employer to assess his suitability for continuation.

Thus, the preliminary inquiry and the material collected therein remained the motive for assessing the petitioner's suitability and did not constitute the foundation of an order imposing punishment. Indeed, the respondents' pleaded case is that the order simply dispensed with the petitioner's services without attaching any stigma and that the preliminary inquiry was only the motive for taking such decision.

In view of the above, this Court finds no sufficient ground to characterize the order dated 17.07.2014 as punitive or stigmatic. The petitioner was admittedly on probation; the inquiry preceding the termination was preliminary in character; no regular charge-sheet was issued; no full-fledged departmental inquiry was conducted; and, most importantly, no finding of guilt was recorded and incorporated into, or made the foundation of, the order terminating his services.

The impugned order is, therefore, to be construed as an order of termination simpliciter passed during probation, rather than an order imposing punishment for misconduct. The preliminary inquiry merely furnished the competent authority with material for assessing the petitioner's suitability for retention in service. Consequently, the protection claimed on the premise that a regular departmental inquiry was mandatory before passing the impugned order is not attracted.

Accordingly, no case for interference in exercise of the writ jurisdiction under Article 226 of the Constitution is made out. The consequential reliefs of reinstatement, continuity of service, back wages, interest and promotion claimed by the petitioner would, therefore, also not arise.