Madhav Chettri vs The State of Sikkim and Others

Sonam Phintso Wangdi, J—The Petitioner was a Sub-Inspector in the Sikkim Police appointed vide Office Order No. 1/PHQ/12 dated 02-01-2012 under a Memorandum dated 05-01-2012, Annexure P2 (collectively), as per which the appointment was initially temporary on probation for 2(two) years.

2(i). Without going into much detail, it would be sufficient to note that during the period of probation, the Petitioner received a notice dated 18-11-2013, Annexure P8, issued by the Respondent No. 5, whereby he was asked to show cause as to why he should not be discharged from service summarily in terms of Clause (ii) of Sub-rule (A) of Rule 7 of the Sikkim Government Establishment Rules, 1974 (for short "Rules of 1974") as he had been arrested in connection with Sadar PS Case FIR No. 267(11)13 dated 12-11-2013 under Sections 457/380 of the Indian Penal Code, 1860 (for short the "IPC") and remained in police custody till 18-11-2013 and remanded to judicial custody thereafter. It was alleged that he was found in possession of stolen articles like, one 9 mm pistol bearing No. 16109492 with live ammunitions, some case exhibits including 4 (four) gold rings, 2(two) strips of contraband substance, etc., and, upon examination of the matter, it was deemed appropriate to summarily discharge him from service in terms of Rule 7(A)(ii) of the Rules of 1974 with immediate effect.

(ii) In his show cause dated 27-11-2013, Annexure P9, the Petitioner denied all material allegations contained in the show cause notice and requested that the proceedings initiated against him be kept at abeyance until disposal of the criminal cases in progress against him.

(iii) However, shortly thereafter the Petitioner was issued with the impugned Office Order No. 1075/SSP/Lines dated 03-12-2013, Annexure P10, discharging him from service. It is alleged, inter alia, that the impugned order of discharge was passed surreptitiously and in violation of the principles of natural justice.

(iv) The present Writ Petition has been preferred seeking to quash the impugned order of discharge dated 03-12-2013.

3(i). In the counter-affidavit filed on behalf of the State-Respondents, the factual aspects of the case set out in the Writ Petition have not been denied except to state that the action taken by them was unassailable having been issued validly and as permissible under the rules as a consequence of the serious criminal charges against the Petitioner. That the Petitioner being a probationer, was liable for summary discharge from service under Rule 7(A)(ii) of the Rules of 1974 if his performance was found unsatisfactory during the period of probation.

(ii) It is contended that the Petitioner while being on earned leave from 06-11-2013 to 13-11-2013 visited Sadar Police Station on 12-11-2013 and committed theft of 4 (four) gold rings, 9 mm auto arms, live ammunitions, etc., culminating in Sadar PS Case FIR No. 267(11)13 dated 12-11-2013 under Sections 457/380 IPC read with Section 3 of the Arms Act, 1959 and Sections 9 and 14 of the Sikkim Anti Drugs Act, 2006, being registered against him. This led to the Petitioner being placed under suspension under Clause (a) of Sub-rule (2) of Rule 10 of the Sikkim Police Force (Discipline and Appeal) Rules, 1989 followed by the show cause notice being issued to him and the consequential order of his discharge from service.

Before proceeding further, it would be relevant to take note of and consider the 3 (three) crucial documents, namely, the show cause notice, the show cause in response thereto submitted by the Petitioner and the impugned Office Order of discharge, which are reproduced below for convenience:--

SHOW CAUSE NOTICE

"............................................................

Whereas you, Probationary Sub-Inspector Madhav Chettri temporarily attached to Sikkim Armed Police, have been arrested by Sadar PS in connection with Sadar P.S. Case FIR No. 267(11)13, dated 12/11/13 u/s. 457/380 of IPC and remanded to Police custody till 18/11/13 and further remanded to Judicial custody.

Whereas, it is further reported that, during the search in connection with the above case, the stolen articles such as one 9 mm pistol bearing No. 16109492 with live ammunitions, some case exhibits including 4 gold rings, 2 strips of contraband substance etc. were recovered from your residence.

Whereas, the matter including the documents received from Sadar P.S. have been examined and it is deemed appropriate to summarily discharge you from service in terms of Rule 7(A)(ii) of the Sikkim Government Establishment Rules, 1974 with immediate effect.

Now, therefore, you are directed to show cause as to why action as proposed above under Rule 7(A)(ii) of the Sikkim Government Establishment Rules, 1974 should not be taken against you. Your reply should reach the office of the undersigned within 10 days of the date of receipt of this notice.

............................................................"

Show cause by the Petitioner

".......................................................

I am in receipt of the above mentioned notice directing me to show cause as to why the proposed action of summarily discharge from service in terms of Rule 7(A)(ii) of the Sikkim Government Establishment Rules, 1974 should not be taken against me. I crave leave of your good-self to submit my show cause as follows:--

i) That I beg to humbly submit that Rule 7(A)(ii) of the Sikkim Government Establishment Rules, 1974 in terms of which the action of summarily discharge is proposed is not applicable in the facts and circumstances of my case. The provisions of the aforesaid rule can be applied only against the persons who are said to be unsatisfactory during the period of probation initially fixed or subsequently extended.

ii) That I and my performance during the probation period were found highly satisfactory as evident from the appreciation letters and other office orders. The office of the Inspector General of Police, Law and Order, Shri Akshay Sachdeva, IPS in his appreciation letter bearing No. 32/IG/L&O dated 30/03/2013 has been kind enough to record his appreciation for the dedication and sincerity displayed by me in connection with making law and order arrangements during His Holiness Dalai Lama''s visit to Gangtok on 26th/27th March, 2013. By the said letter Traffic, Law and Order arrangements were appreciated to be excellent.

iii) That Shri Vinnet Vinayak, IPS the Hon''ble Inspector General (Armed Police, Police Head Quarters), vide D.O. No. 08/IG/AP&CID dated 3/08/2013, has been pleased enough to place on record his appreciation for the outstanding performance headed by a team of dedicated personnel led by me during the ceremonial Guard of Honour presented to his Excellency the Governor of Sikkim at Raj Bhawan on 20/07/2013.

iv) That the Special Director General of Police, Head Quarter and General Administration was kind enough to highly commend my performance as Platoon Commander of Home Guards commanded by me on the 66th Independence Day Parade as Platoon Commander on 15th August, 2013.

v) That Shri Manoj Tiwari, IPS, SP (East), Gangtok vide Memo No. 936/SP/E on 22/08/2013 was pleased enough to award cash reward of Rs. 1,000/- to me for my sincere and diligent effort which led to the arrest of the accused in connection with Sadar Case FIR No. 121/2013 dated 30/05/2013 under Section 9/14 of Sikkim Anti Drugs Act, 2006.

vi) That Shri T. Wangdi, SPS, Commandant, Sikkim Arms Police, Pangthang has been kind enough to appreciate the outstanding performance shown by me and my team under my command during 67th Independence Day Parade held at Palzor Stadium on 15th August, 2013.

2) That I humbly beg to submit that the above highlighted appreciation letters and commendations clearly demonstrate that my performance during the probation period is highly satisfactory as such, the invocation of the provisions of Rule 7(A)(ii) of the Sikkim Government Establishment Rules, 1974 would be misplaced action.

3) That so far the registration of the Sadar P.S. case FIR No. 267 (11) 13 dated 12/11/2013 under sections 457/380 of the Indian Penal Code, 1860 and the alleged recovery of alleged 4 gold rings and 2 strips of contrabands substances are concerned I beg to submit that I am completely innocent and I am ready to face (not eligible) and prove my innocence in the competent Court of Law.

4) That I humbly submit that the proposed action of summarily discharge in terms of the provisions of Rule 7(A)(ii) of the Sikkim Government Establishment Rules, 1974 is sub-judice as the competent Court of Law has not come to any finding in my case and it is the settled principle of law that an accused is presumed to be innocent until proven guilty. (The copies of the appreciation letter, commendation and office order are annexed herewith and marked Annexure A to E).

In the above mentioned legal and factual position of the case I beg your good-self to be kind enough to keep the ongoing proceedings for the proposed action in terms of Rule 7(A)(ii) of the Sikkim Government Establishment Rules, 1974 in abeyance till the competent Court of Law pronounces its verdict in the aforesaid Sadar P.S. case against me in the interest of justice.

.............................................................."

OFFICE ORDER OF DISCHARGE

".............................................................

Whereas Probationary Sub-Inspector Madhav Chettri after completion of basic training at NEPA(Meghalaya) was being attached to various branches of Sikkim Police for training which was to be completed on 14/11/2013. While he was attached to SAP he had taken eight days leave from 6th to 13th Nov. 2013. On 12/11/2013 he was arrested by Sadar P.S. in connection with Sadar P.S. Case FIR No. 267(11)13, dated 12/11/13 u/s. 457/380 of IPC and remanded to Police custody till 18/11/13.

And whereas during a search in connection with the above case, the stolen articles such as one 9 mm pistol bearing No. 16109492 with live ammunitions, some case exhibits including 4 gold rings, 2 strips of contraband substance etc. were recovered from his possession at his residence.

And whereas the undersigned taking notice of the facts and circumstances of the above cited case served a show cause notice on Shri Madhav Chettri vide No. 486/SSP/Lines, Dt. 18/11/2013 asking him to show cause as to why he should not be summarily discharged from service in terms of rule 7(A)(ii) of the Sikkim Govt. Establishment Rules, 1974.

And whereas Shri Madhav Chettri submitted his reply dated: 27/11/13.

And whereas the reply of Shri Madhav Chettri has been duly considered by the undersigned.

And whereas after examination of relevant materials on record and the reply of Shri Madhav Chettri, the undersigned considers that the conduct of Shri Madhav Chettri during his probation period is such as to render him unsatisfactory for continuation in govt. service.

Now, therefore, in exercise of power conferred by rule 7(A)(ii) of the Sikkim Govt. Establishment Rules, 1974 the undersigned hereby discharges the said Madhav Chettri, PSI under probation from service with immediate effect.

................................................................"

During the arguments, there was no dispute on the factual aspects pertaining to the case and also the position of law that in the event of there being any material in the order of dismissal which would amount to a stigma and punitive in character, it would inevitably attract the provisions of Article 311 of the Constitution of India.

The position of law as laid down in Parshotam Lal Dhingra Vs. Union of India (UOI), AIR 1958 SC 36 : (1958) 1 LLJ 544 : (1958) 1 SCR 828 insofar as it is relevant to the present case has been succinctly summarised in the later decision in Jagdish Mitter Vs. The Union of India (UOI), AIR 1964 SC 449 : (1964) 1 LLJ 418 , which reads as under:--

"(9) It is also now settled that the protection of Art. 311 can be invoked not only by permanent public servants, but also by publics servants who are employed as temporary servants, or probationers, (vide Parshotam Lal Dhingra Vs. Union of India (UOI), AIR 1958 SC 36 : (1958) 1 LLJ 544 : (1958) 1 SCR 828 ) and so, there can be no difficulty in holding that if a temporary public servant or a probationer is served with an order by which his services are terminated, and the order unambiguously indicates that the said termination is the result of punishment sought to be imposed on him, he can legitimately invoke the protection of Art. 311 and challenge the validity of the said termination on the ground that the mandatory provisions of Art. 311(2) have not been complied with. In other words, a temporary public servant or a probationer cannot be dismissed or removed from service without affording him the protection guaranteed by Art. 311(2)."

This ratio has remained unaltered and consistently followed. In order to fall within its ambit, we only need to determine as to whether the impugned Office Order was issued by way of punishment casting a stigma resulting in adverse civil consequences against the Petitioner.

In Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others, AIR 1999 SC 983 : (1999) 81 FLR 687 : (1999) 1 JT 396 : (1999) 1 SCALE 421 : (1999) 3 SCC 60 : (1999) SCC(L&S) 596 : (1999) 1 SCR 532 : (1999) AIRSCW 605 : (1999) 2 Supreme 34 , it has been held as follows:--

"43. As pointed out in Bishan Lal Gupta Vs. The State of Haryana and Others, AIR 1978 SC 363 : (1978) 36 FLR 479 : (1978) LabIC 312 : (1978) 1 LLJ 316 : (1978) 1 SCC 202 : (1978) 2 SCR 513 : (1978) 10 UJ 112 an ordinary enquiry by a show-cause might be sufficient for the purpose of deciding whether the probationer could be continued, but where the findings regarding misconduct are arrived at without conducting a regular departmental enquiry, then the termination order will be vitiated. The learned Senior Counsel for the respondent relied upon Hindustan Paper Corporation Vs. Purnendu Chakrobarty and Others, (1996) 8 AD 122 : (1997) 75 FLR 22 : (1996) 10 JT 1 : (1997) 2 LLJ 704 : (1996) 8 SCALE 96 : (1996) 11 SCC 404 : (1997) SCC(L&S) 244 : (1996) 8 SCR 159 Supp : (1997) 1 UJ 369 where it was held that for termination of "lien", no detailed enquiry was necessary and that if that be the position, termination of probation stands on a lesser footing. But the case turned upon a special rule in that case which specifically provided that for "termination of lien", a regular enquiry was not necessary. That case cannot therefore be of any assistance to the respondents."

Similarly, in V.P. Ahuja Vs. State of Punjab and Others, AIR 2000 SC 1080 : (2000) 85 FLR 197 : (2000) 3 JT 1 : (2000) 1 LLJ 1099 : (2000) 125 PLR 696 : (2000) 2 SCALE 233 : (2000) 3 SCC 239 : (2000) 2 SCR 130 : (2000) 1 UJ 630 : (2000) AIRSCW 792 : (2000) 2 Supreme 259 , it was held that -

"7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.

The affidavits filed by the parties before the High Court as also in this Court indicate the background in which the order, terminating the services of the appellant, came to be passed. Such an order which, on the face of it, is stigmatic, could not have been passed without holding a regular enquiry and giving an opportunity of hearing to the appellant.

The entire case law with respect to a "probationer" was reviewed by this Court in a recent decision in Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others, AIR 1999 SC 983 : (1999) 81 FLR 687 : (1999) 1 JT 396 : (1999) 1 SCALE 421 : (1999) 3 SCC 60 : (1999) SCC(L&S) 596 : (1999) 1 SCR 532 : (1999) AIRSCW 605 : (1999) 2 Supreme 34 . This decision fully covers the instant case as well, particularly as in this case, the order impugned is stigmatic on the face of it."

In State Bank of India and Others Vs. Palak Modi and Another etc., (2013) 136 FLR 303 : (2012) 12 JT 321 : (2012) 11 SCALE 542 : (2013) 3 SCC 607 : (2013) 1 SCT 387 : (2013) 1 SLJ 264 , the Hon''ble Supreme Court relying upon a catena of its earlier decisions while dealing with the case of dismissal of an officer on probation held that "if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice".

The settled position emerging from the above is that an ordinary enquiry by a show cause may be sufficient for the purpose of deciding as to whether a probationer should be continued. However, if the termination is based on a finding of misconduct which is arrived at without holding a regular enquiry, it would be unsustainable in law. It also lays down that although services of a temporary government servant who is on probation can be dispensed with, it is neither permissible by an order that casts stigma on the reputation of the employee nor can it be by way of punishment. Such orders can be passed only after holding a regular enquiry under Clause (2) of Article 311 of the Constitution of India after affording him reasonable opportunity of being heard in respect of the charges.

In the present case, a bare reading of the very first and second paragraphs of the impugned Office Order and the categorical and unambiguous averments contained in the counter-affidavit on behalf of the State-Respondents leave no room for any doubt that it casts serious stigma against the Petitioner and is a punitive one. It is relevant to note that the impugned Office Order does not emanate from a disciplinary proceeding but admittedly from the summary provision under Rule 7(A)(ii) of the Rules of 1974.

Under these circumstances, I have no hesitation to hold that the impugned Office Order cannot be sustained in the eyes of law as indisputably it is not only punitive but, also stigmatic against the Petitioner. It is not understood as to why the Respondents were in a rush to dispense with the service of the Petitioner when criminal trials against him were and still are admittedly in progress in the competent Courts of Law and are concededly at an advanced stage of culmination. The basis of the impugned Office Order are the very charges in the criminal cases which is apparent from the first paragraph of the impugned Office Order.

It would have been appropriate for the Respondents to have withheld taking the impugned action until completion of the proceedings against the Petitioner. No doubt it is a well-settled position of law that a criminal case and a departmental proceeding can be held simultaneously as those operate in distinct and different jurisdictional areas, but there is an exception carved out where the departmental proceedings and the criminal case are based on the same set of facts and, the evidence in both the proceedings is common without there being a variance.

In G.M. Tank Vs. State of Gujarat and Another, AIR 2006 SC 2129 : (2006) 3 CTC 494 : (2006) 11 JT 36 : (2006) 3 LLJ 1075 : (2006) 5 SCALE 582 : (2006) 5 SCC 446 : (2006) SCC(L&S) 1121 : (2006) 3 SCR 253 Supp : (2006) 3 SLJ 312 : (2006) AIRSCW 2709 : (2006) 4 Supreme 740 after noticing several of its earlier decisions commencing from State of Andhra Pradesh Vs. Sree Rama Rao, AIR 1963 SC 1723 : (1964) 2 LLJ 150 : (1964) 3 SCR 25 ; R.P. Kapur Vs. Union of India (UOI) and Another, AIR 1964 SC 787 : (1966) 2 LLJ 164 : (1964) 5 SCR 431 ; Corporation of the City of Nagpur, Civil Lines, Nagpur and another Vs. Ramchandra and others, AIR 1984 SC 626 : (1981) 43 FLR 78 : (1984) LabIC 179 : (1981) 2 LLJ 6 : (1981) 1 SCALE 503 : (1981) 2 SCC 714 : (1981) 3 SCR 22 : (1981) 13 UJ 316 ; Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya, etc., (1996) 9 AD 651 : AIR 1997 SC 2232 : (1997) 2 LLJ 902 : (1996) 9 SCALE 65 : (1997) 2 SCC 699 : (1997) SCC(L&S) 548 : (1996) 8 SCR 941 Supp : (1997) 1 SLJ 241 : (1997) AIRSCW 2098 : (1997) 1 Supreme 565 ; Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, AIR 1999 SC 1416 : (1999) 2 CTC 579 : (1999) 82 FLR 627 : (1999) 2 JT 456 : (1999) 1 LLJ 1094 : (1999) 2 SCALE 363 : (1999) 3 SCC 679 : (1999) SCC(L&S) 810 : (1999) 2 SCR 257 : (1999) AIRSCW 1098 : (1999) 3 Supreme 376 ; Management of Krishnakali Tea Estate Vs. Akhil Bharatiya Chah Mazdoor Sangh and Another, (2004) 7 JT 333 : (2004) 3 LLJ 772 : (2004) 7 SCALE 608 : (2004) 8 SCC 200 : (2004) SCC(L&S) 1067 : (2005) 1 SLJ 197 : (2004) 2 UJ 1390 and Ajit Kumar Nag Vs. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Others, AIR 2005 SC 4217 : (2005) 107 FLR 407 : (2005) 8 JT 425 : (2005) 7 SCC 764 : (2005) SCC(L&S) 1020 : (2005) 3 SCR 314 Supp : (2006) 1 SLJ 267 , the Hon''ble Supreme Court held as follows:--

"30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant''s residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, AIR 1999 SC 1416 : (1999) 2 CTC 579 : (1999) 82 FLR 627 : (1999) 2 JT 456 : (1999) 1 LLJ 1094 : (1999) 2 SCALE 363 : (1999) 3 SCC 679 : (1999) SCC(L&S) 810 : (1999) 2 SCR 257 : (1999) AIRSCW 1098 : (1999) 3 Supreme 376 will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

(underlining mine)

It would follow from the above that if the charge in a departmental case against the appellant and the charge before the criminal court are one and the same and, if the delinquent later gets an honourable acquittal in the criminal proceeding, he would be entitled to the benefit of the departmental proceedings against him being dropped.

Appropriately, therefore, in the interest of justice the impugned action ought not to have been initiated against the Petitioner, notwithstanding its unconstitutionality for the reasons alluded to above, until termination of the criminal cases pending against him.

For all these reasons, I am of the firm view that the impugned Office Order cannot be sustained and, therefore, is liable to be quashed and, is accordingly quashed and set aside.

In the result, the Writ Petition is allowed.

No order as to costs.