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Judgment
Being aggrieved by the order dated 09.03.2004, passed by the Commandant, Temporary Police Recruitment School, T.S.P.II Battalion,
Veerapuram, Avadi, Chennai, the 2nd Respondent herein, terminating the services of the Petitioner from the post of Grade II Police Constable and
for a consequential prayer of reinstatement, the Petitioner has preferred the Original Application before the Tamilnadu Administrative Tribunal,
Chennai, which has been transferred and re-numbered as the present writ petition.
According to the Petitioner, he was appointed as Grade-II Police Constable and was sent for training with effect from 01.12.2003. Though, his
performance in training was satisfactory and no remarks were made against him, the Commandant, Temporary Police Recruitment School,
T.S.P.II Battalion, Veerapuram, Avadi, Chennai, the 2nd Respondent herein issued a notice calling upon the Petitioner to submit his explanation as
to why the probation of the Petitioner should not be terminated, on an allegation of suppression of his involvement in a criminal case in Crime No.
214 of 2003 under Sections 143 and 323 of IPC on the file of C2, Elephant Gate Police Station and of the tendency of the said case before the
learned VIII Metropolitan Magistrate, Egmore, Chennai.
In response to the same, the Petitioner submitted his explanation that he was not involved in any criminal case and that he had only witnessed the
quarrel which took place in a public place and that the policeman requested him to explain as to what happened, as a witness. According to the
writ Petitioner, only after receipt of the show cause notice from the Commandant, Temporary Police Recruitment School, T.S.P.II Battalion,
Veerapuram, Avadi, Chennai, the 2nd Respondent herein, he came to know about the tendency of the case in the Court. It is his further contention
that his name was not included in the FIR and that he was not involved in the criminal case in C.C. No. 8706 of 2003, on the file of learned VIII
Metropolitan Magistrate, Egmore, Chennai.
On the above said pleadings, Mr. J. Sudhakaran, learned Counsel for the Petitioner submitted that when suppression of involvement of the
Petitioner in the above said criminal case has been taken as the foundation for terminating the services of the Petitioner, then, the Respondents
ought to have initiated disciplinary proceedings under Rule 3(b) of the Tamilnadu Police Subordinate Service (Discipline & Appeal) Rules and
afforded a reasonable opportunity of being heard in full-fledged departmental enquiry. He further submitted that as the name of the Petitioner was
not included in the FIR and that he was not arrested for any crime, the 2nd Respondent ought to have seen that there was no suppression on the
part of the writ Petitioner, at the time of submission of particulars and therefore, termination of the services on an allegation of suppression, casts
stigma on the Petitioner and in such circumstances, denial of reasonable opportunity is vocative of Article 311 (ii) of the Constitution of India.
According to the learned Counsel though the 2nd Respondent has every authority to terminate the probation of the Petitioner, for unsatisfactory
service during the period of probation, the services of the Petitioner cannot be terminated alleging misconduct. In support of his contentions, he
also relied on a decision of the Supreme Court in AIR 2000 1706 (SC) .
Learned Counsel for the Petitioner also drew the attention of this Court that though the FIR was stated to have been registered on 09.07.2003,
no summon was received by the Petitioner to appear in Court before the commencement of training on 01.12.2003 and therefore he had no
occasion to bring it to the notice of the Respondents about the alleged involvement. For the above said reasons, he prayed to set aside the
impugned order and issue a direction to reinstate the Petitioner in service.
Though the writ petition is pending from 2004, no counter affidavit has been filed by the Respondents. However, referring to the show cause
notice dated 21.02.2004 and the impugned order terminating the services of the Petitioner dated 09.03.2004, Mr. S.V. Durai Solai Malai, learned
Additional Government Pleader submitted that the Petitioner was involved in a criminal case in C.C. No. 8706 of 2003, on the file of learned VIII
Metropolitan Magistrate, Egmore, Chennai, under Sections, 143 and 323 IPC. He further submitted that as per Rule 14(b)(iv) of the Tamilnadu
Special Police Subordinate Service Rules, no person shall be eligible for appointment to the services by Direct recruitment, if he has involved in any
criminal case.
According to him, though, the show cause notice dated 21.02.2004 proceeds on the footing that the Petitioner has suppressed the fact of his
involvement in a criminal case in C2, Elephant Gate Police Station, pending on the file of learned VIII Metropolitan Magistrate, Egmore, Chennai,
the suitability of the Petitioner for retention in service was under consideration, even at the time of issuance of the show cause notice and when the
very involvement of a person in a criminal case, is a disqualification under the recruitment rules, the suitability of the individual for retention in
service alone was considered and accordingly his probation was terminated. In this context, he took this Court to the contents of the show cause
notice and the impugned order.
He further submitted that as the Petitioner was not eligible for recruitment as Grade-II Police Constable, as per Rule 14(b)(iv) of the Tamilnadu
Special Police Subordinate Service Rules, termination of probation is just and proper and in such circumstances, there was no need to hold a
detailed departmental enquiry by formulating charges under Rule 3(b) of the Tamilnadu Police Subordinate Service (Discipline & Appeal) Rules
and there is no violation of Article 311 (ii) of the Constitution of India. He also submitted that though the words ""termination of services"" was
mentioned in the impugned order, but what was intended was only termination of probation and that the same could be understood from the
reading of the impugned order. Therefore, he submitted that much weightage need not be given to the expression used. Hence he prayed for
dismissal of the writ petition.
Heard the learned Counsel for the parties and perused the materials available on record.
Pleadings and material on record discloses that a FIR in Crime No. 214 of 2003 for offences under Sections 143 and 323 of IPC has been
registered on 09.07.2003, on the file of C2, Elephant Gate Police Station. Admittedly, name of the Petitioner has not been included in the FIR.
Perusal of show cause notice dated 21.02.2004 of the Commandant, Temporary Police Recruitment School, T.S.P.II Battalion, Veerapuram,
Avadi, Chennai, and the 2nd Respondent herein, shows that the Petitioner was sent for basic training with effect from 01.12.2003. Summons from
the learned VIII Metropolitan Magistrate, Egmore, Chennai, has been issued to the writ Petitioner to appear for the trial on 13.02.2004 for the
above said criminal case.
Reading of the show cause notice further indicates that the fact of the involvement of the Petitioner in the above said criminal case has come to
the notice of the Commandant, Temporary Police Recruitment School, T.S.P.II Battalion, Veerapuram, Avadi, Chennai, the 2nd Respondent
herein, only after the commencement of the training, which was with effect from 01.12.2003. The show cause notice proceeds on the footing that
the Petitioner has suppressed the fact of his involvement in the above said criminal case in the police verification roll and also in the declaration /
undertaking form, before joining the basic training. But the Petitioner has neither furnished the details, as to when he submitted the declaration /
undertaking form before joining the basic training nor have the Respondents filed a counter affidavit specifying the date of submission of declaration
regarding antecedents of the writ Petitioner.
In the above said circumstances, it has to be presumed that though, a criminal case was registered on 09.07.2003 and when the name of the
Petitioner has not been arrayed in FIR, there would not have been any occasion for the writ Petitioner to furnish any particulars regarding the
registration of a crime against him under Sections 143 ad 323 IPC to the competent authority while submitting the declaration / undertaking form
before joining the basic training.
However, reading of the show cause notice indicates that while considering the suitability of the Petitioner, for retention in service, the
Commandant, Temporary Police Recruitment School, T.S.P.II Battalion, Veerapuram, Avadi, Chennai, the 2nd Respondent herein, has
considered that it would not be desirable to retain the Petitioner in service and provisionally has arrived at a conclusion of terminating his probation
in the post of Grade-II Police Constable. Though, suppression of the fact of the Petitioner''s involvement in the above said criminal case appears to
be the foundation for the issuance of the show cause notice, the fact remains that the suitability of the Petitioner for retention in service during the
period of probation is the reason for calling upon the Petitioner to submit his explanation. In response to the show cause notice, the Petitioner has
submitted his explanation contending inter-alia that he had been informed by the policemen to only narrate the details relating to the incident which
occurred on 09.07.2003 warranting registration of a criminal case.
In Chandra Prakash Shahi''s case, the Supreme Court, has considered the case of termination of a Police Constable from the Pradeshik
Armed Constabulary (PAC), who was placed under probation for two years. There was a quarrel between two Police Constables. Consequent to
which, the services of Chandra Prakash Shahi, Appellant therein, was terminated on the basis of a preliminary enquiry. The Tribunal set aside the
termination. The State challenged the decision by filing a writ petition and that the same was allowed. Aggrieved over the decision of the High
Court, the Police Constable filed SLP (SLP) and interlaid contended that he is entitled to protection under Article 311(ii). While explaining and
distinguishing the concepts ""motive"" and ""foundation"", the Supreme Court at paragraph Nos. 28 to 30, held as follows
The important principles which are deducible on the concept of ""motive"" and ""foundation"", concerning a probationer, are that a probationer has
no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general
unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in
service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not
be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order
terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the
general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this
situation, the order would be founded on misconduct and it will not be a mere matter of ""motive"".
""Motive"" is the moving power which 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.
Applying these principles to the facts of the present case, it will be noticed that the Appellant, who was recruited as a Constable in the 34th
Battalion, Pradeshik Armed Constabulary, U.P., had successfully completed his training and had also completed two years of probationary period
without any blemish. Even after the completion of the period of probation under Para 541 of the U.P. Police Regulations, he continued in service in
that capacity. The incident in question, namely, the quarrel was between two other Constables in which the Appellant, to begin with, was not
involved. When the quarrel was joined by few more Constables on either side, then an enquiry was held to find out the involvement of the
constables in that quarrel in which filthy language was also used. It was through this enquiry that Appellant''s involvement was found established.
The termination was founded on the report of the preliminary enquiry as the employer had not held the preliminary enquiry to find out whether the
Appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years
ago but was held to find out his involvement. In this situation, particularly when it is admitted by the Respondent that the performance of the
Appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct.
The concepts of ""motive"" and ""foundation"" were also considered in Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical
Sciences and anr, , where after considering various decisions and to wriggle out the struggle of the Courts with semantically indistinguishable
concepts, like ""motive"" and ""foundation"" and termination founded on a probationer''s misconduct and motivation, the Supreme Court evolved
certain judicial tests to determine whether in substance an order of termination is punitive or simplicities and at Paragraph 21 in Pavanendra
Narayan Verma''s case, the Supreme Court held that the Courts should 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, then 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. Therefore, the Supreme Court held that, whenever a probationer challenges his termination the Court''s 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.
At Paragraph 29, the Supreme Court held as follows:
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. 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.
In Progressive Education Society and Another Vs. Rajendra and Another, , the Supreme Court has reaffirmed the legal position and held that,
The appointing authority is at liberty to terminate services of a probationer if it finds performance of probationer to be unsatisfactory during the
period of probation. The assessment has to be made by the appointing authority itself and the satisfaction is to be that of the appointing authority as
well. Unless a stigma is attached to the termination or the probationer is called upon to show cause for any shortcoming which may subsequently
be the cause for termination of the probationer''s services, the management or the appointing authority is not required to give any explanation or
reason for terminating services except informing him that his services have been found to be unsatisfactory.
Dealing with a case of termination of probation, this Court in R. Murugadoss v. The Secretary to Government, State of Tamil Nadu, Home
(Pol.IX) Department, Secretariat, Chennai-9, reported in 2009 (3) MLJ 657, at paragraph Nos. 34 to 38, held as follows:
From the above decisions, it can be deduced that while testing the correctness of an order of termination of probation, the Court has to bear in
mind the basic concept of ""motive"" and ""Foundation"" with reference to the facts of the case. Assessment of the performance and the satisfaction
has to be made by the appointing authority and it should be for determination of his suitability for the post in question or for retention in service or
for confirmation. The order will not be in punitive in nature, if there is a simple termination of probation. But if any full fledged enquiry is held to find
out the truth of the misconduct and the order, terminating his service, is based on the finding recorded in the enquiry, then the order would be in
punitive in nature, as the departmental enquiry is held not for assessing the general suitability of the government servant for the post in question, but
to find out the truth of the allegations. Therefore, if the ""Motive"" of the employer is to determine the suitability, then the order cannot be termed as
punitive, casting stigma on the government servant.
Therefore, to categories an order as punitive, the probationer has to satisfy, (1) misconduct alleged against him (2) a full-fledged departmental
enquiry (3) finding of guilt arrived at by the enquiry officer, which forms foundation or the basis of terminating his probation. Judging a person for
his suitability for the post, which requires specific duties and responsibilities, depending upon its nature, for retention or confirmation, based on his
performance without holding a detailed enquiry and if any order of termination is passed during probation or at the end of the period of probation
on the basis of the suitability of the employee to the post in question, that cannot be said to be punitive. Rather, it is only a termination of probation
simplicities without casting stigma on the government servant.
The probationer does not have any absolute right to any post. The employer has got every right to terminate the service of a probationer,
without assigning any reasons based on the assessment of his performance. Whether the probationer would be suitable for a particular post or not,
is left to the absolute discretion of the employer. To examine as to whether, there was any motive in terminating the service of a government
servant, the Court can lift its veil and see what is there behind the curtain. If on perusal of the materials placed before the Court and scrutiny of the
order, suggests that there was a strong motive which turned into a foundation for terminating the services of the probationer, then the Court has to
primarily satisfy itself as to whether the three tests stated supra, are satisfied by the probationer and whether there is any specific finding of guilt of
misconduct alleged.
While testing the order of termination of probation as to whether it is simplicities or punitive, the Court has to scrutinize as to whether the order
of termination, ex facie, contains stigma or it reveals to a document, which stigmatized the officer in which case, termination order can be set aside
on the ground that it is punitive. The task of the Court would be to find out as to whether the order of termination has evil consequences in relation
to the reputation of the Government servant/employee so as to render him unfit for service elsewhere and not in relation to the post held by him. An
order which merely states unsatisfactory work and conduct is not stigmatic. Even if any show cause notice is issued as regards any misconduct and
thereafter, without proceeding further, if an order of termination simplicities is passed, that will not be punitive, as the order does not suggest
stigma. Even in a case where regular a departmental enquiry is ordered, pursuant to which, the department formulates the charges and if the
appointing authority chooses to drop the disciplinary proceedings and passes an order of termination of probation, on a simple show cause notice,
then the same is not punitive, because the enquiry officer has not recorded any findings with regard to the act of misconduct alleged against the
Government servant. If his services are terminated by way of an order in lieu of punishment, pursuant to a departmental enquiry and finding
recorded, in which, the government servant suffers civil or evil consequences of guilty, only in that circumstances, it is open to the
employee/government servant to assail the order of termination as punitive.
Now reverting back to the facts on hand, to arrive at a conclusion as to whether the impugned order is stigmatic or the appointing authority,
had only considered the desirability or suitability of the Petitioner to retain in service, it is necessary to extract the relevant portions of the show
cause notice, as well as the impugned order. Paragraph Nos. 2 and 3 of the show cause notice are extracted hereunder:
Since you have suppressed the fact of your involvement in the above said criminal case which affects the morale of the disciplinary force,
considering all aspects of this issue and I consider that it is not desirable to retain you in service. Hence I have provisionally arrived at a conclusion
of terminating your probation in the post of Gr.II PC.
You are therefore directed to show cause as to why orders of terminating your probation in the post of Gr.II PC should not be imposed on you.
Hence you are hereby given an opportunity to submit your explanation within a week''s time from the date of receipt of this memorandum.
Impugned order dated 09.03.2004, reads as follows
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Vw;g[jajha; ,y;iy/ vdnt. ePu; bjhlu;e;J ,uz;lhk; epiy fhtyu; gapw;rp bgw jFjpaw;wtu; vd fUjp cldoahf gzpKog;g[ bra;J Miz tH'';fg;gLfpwJ
A combined reading of the above said orders, clearly indicate that the 2nd Respondent, has adjudged, the suitability of the Petitioner to the
post of Grade-II Police Constable in the disciplined force, as involvement of a person in a criminal case is a disqualification for entry into service.
That apart, to categories the impugned order as punitive, though an allegation of suppression of involvement of the Petitioner in a criminal case is
the foundation for issuing the show cause notice, there is no full-fledged departmental enquiry, the appointing authority has considered the
desirability of the Petitioner to retain in service, in view of the recruitment rules. The suitability of the Petitioner has been adjudged on the basis of
the service rules. As rightly contended by the learned Counsel for the State, it is the substance of the order that matters and not the expression
used. Usage of the words, ""termination from service"", in the impugned order, would not confer any right on the Petitioner to contend that it is
punitive and the impugned order does not come within the parameters of the decisions stated supra The purport of the order is only to consider the
desirability of the Petitioner, for retention in service, in the light of recruitment rules. The impugned order does not satisfy the settled principles of
law to be characterised as punitive, warranting intervention. The principles laid in R. Murugadoss v. The Secretary to Government, State of Tamil
Nadu, Home (Pol.IX) Department, Secretariat, Chennai-9, reported in 2009 (3) MLJ 657, squarely applies to the facts of this case.
In the above said circumstances and having regard to the
S.MANIKUMAR, J.
are mandate of Rule 14(b)(iv) of the Tamilnadu Special Police Subordinate Service Rules, as held by a Full Bench of this Court in Manikandan
and Ors. v. The Chairman, Tamil Nadu Uniformed Services recruitment Board, Chennai and Others, reported in 2008 (2) CTC 97, this Court is
of the view that when the involvement of the Petitioner in a criminal case, is a disqualification for even entry into service, the Petitioner has no legal
or statutory right to seek for continuation of his probation, no matter whether there was suppression or not. For the above said reasons, the writ
petition fails and is liable to be dismissed. Accordingly the writ petition is dismissed. No costs.