# HARDEEP SINGH -' v. STATE OF HARYANA & ORS

- **Citation:** [1987] 3 S.C.R. 1138
- **Court:** Supreme Court of India
- **Decided:** 1987-08-13
- **Bench:** A.P. Sen, B.C. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hardeep-singh-v-state-of-haryana-ors-9564
- **Pages:** 8

## Headnote

1
Civil Services: Punjab Police Rules 1934, Rules 12. 31and16. 24 . ..J..
(ix)(b)-Police Constable on probation-Order of removal from
service passed on account of union activities-No chargesheet servedNo enquiry held-Order, when can be quashed.
_,,.-
c
Constitution of India, 1950, Art. 311(2)-Whether a probationer r
is entitled to protection, and if so, when.
The petitiuner, a Cunstable In the Haryana Police Service, was
removed from service during the periud of probation. However, be was
D not given any opportunity of bearing against the purported order of
~
dismissal from service. He challenged the impugned order of removal
on the ground that he was removed from service because of bl• activities
in the Haryana Police Association and It was in fact a penal order and as
such the same being made without complying with the requirements of
Article 311(2) as well as Rule 16.24(1x)(b) of the Punjab Police Rules,
E 1934, it is wholly arbitrary, illegal and unwarranted.
·~
It was contended on behalf of the respondent that the Impugned
.>
order is not an order of dismissal from service and in fact this is an
order of discharge made under Rule 12.21 of the Rules since the
r
appointing authority was of considered opinion on the assessment of his
F conduct and performance that the petitioner was unlikely to prove an
efficient police officer.
Allowing the writ petition to this Court,
HELD: 1. (i) The impugned order of removal/dismissal from
G service was in substance and in effect an order made by way of punish-
~·
ment after considering the service conduct of the petiti<iner. It is therefore quashed and it is directed that he be reinstated in service with 50
per cent back wages from the date of termination of his service till the
date of his reinstatement. He would, however, be entitled to his full -
salary and other allowances admissible w.e.f. the date of his reinstateH ment. There would however be no break in continuity of service for
purposes of seniority and pension benefits. [1144D; 1145A·CI
1138
::;;.
r
~
-
i
......
-~
..._
-1
I
HARDEEP SINGH v. STATE OF HARYANA
1139
(ii) There is no doubt that the impugned order casts a stigma on
A
the service career of the petitioner and the order being made by way of
punishment, the petitioner is entitled to the protection afforded by the
provisions of Article 311(2) of the Constitution as well as by the provisions of Rule 16.24(ix)(b) of the Punjab Police Rules 1934. [1144E]
(iii) It cannot be said that the impugned order is an order simpli·
B
citer of removal from service of a probationer in accordance with
the terms and conditions of service. The impugned order undoubtedly
tantamounts to the dismissal from the service for reasons of misconduct
of the petitioner in discharge of the official duties as police constable. [1144G-H]
2. A probationer has no right to the post and if he is found by the c
concerned authorities to be unsuitable for the post during th_e probation
period his service may be done away with. But nonetheless such a
probationer has a right to have an opportunity of hearing against the
order of dismissal/removal from the service if the same is made in effect
by way of punishment or the same casts a stigma on the service career of
D
the petitioner. [1141G-H; 1142A]
In the instant case, the petitioner has not been served with any
charges of misconduct in discharge of his duties as a police constable
nor has he ever been asked to show cause against the said charges. The
order of removal from service was made because of his. union activities
namely participating in the call for expressing the protest of the AssoE
'
ciation for improvement in service conditions by abstaining from taking
meals in the Mess on 15th August, 1982 although the petitioner like
other members of the association performed his duties on that day and
did not abstain from duty. [1144E·G]
P.L. Dhingra v. Union of India, AIR 1958 (SC) 36; Samsher
F
Singh v. State of Punjab and Anr., AIR 1974 (SC) 2192; Anoop Jai

## Text

HARDEEP SINGH
-'-.
A
v.
STATE OF HARYANA & ORS.
AUGUST 13, 1987
B
[A.P. SEN AND B.C. RAY, JJ.]
1
Civil Services: Punjab Police Rules 1934, Rules 12. 31and16. 24 . ..J..
(ix)(b)-Police Constable on probation-Order of removal from
service passed on account of union activities-No chargesheet servedNo enquiry held-Order, when can be quashed.
_,,.-
c
Constitution of India, 1950, Art. 311(2)-Whether a probationer r
is entitled to protection, and if so, when.
The petitiuner, a Cunstable In the Haryana Police Service, was
removed from service during the periud of probation. However, be was
D not given any opportunity of bearing against the purported order of
~
dismissal from service. He challenged the impugned order of removal
on the ground that he was removed from service because of bl• activities
in the Haryana Police Association and It was in fact a penal order and as
such the same being made without complying with the requirements of
Article 311(2) as well as Rule 16.24(1x)(b) of the Punjab Police Rules,
E 1934, it is wholly arbitrary, illegal and unwarranted.
·~
It was contended on behalf of the respondent that the Impugned
.>
order is not an order of dismissal from service and in fact this is an
order of discharge made under Rule 12.21 of the Rules since the
r
appointing authority was of considered opinion on the assessment of his
F conduct and performance that the petitioner was unlikely to prove an
efficient police officer.
Allowing the writ petition to this Court,
HELD: 1. (i) The impugned order of removal/dismissal from
G service was in substance and in effect an order made by way of punish-
~·
ment after considering the service conduct of the petiti<iner. It is therefore quashed and it is directed that he be reinstated in service with 50
per cent back wages from the date of termination of his service till the
date of his reinstatement. He would, however, be entitled to his full -
salary and other allowances admissible w.e.f. the date of his reinstateH ment. There would however be no break in continuity of service for
purposes of seniority and pension benefits. [1144D; 1145A·CI
1138
::;;.
r
~
-
i
......
-~
..._
-1
I
HARDEEP SINGH v. STATE OF HARYANA
1139
(ii) There is no doubt that the impugned order casts a stigma on
A
the service career of the petitioner and the order being made by way of
punishment, the petitioner is entitled to the protection afforded by the
provisions of Article 311(2) of the Constitution as well as by the provisions of Rule 16.24(ix)(b) of the Punjab Police Rules 1934. [1144E]
(iii) It cannot be said that the impugned order is an order simpli·
B
citer of removal from service of a probationer in accordance with
the terms and conditions of service. The impugned order undoubtedly
tantamounts to the dismissal from the service for reasons of misconduct
of the petitioner in discharge of the official duties as police constable. [1144G-H]
2. A probationer has no right to the post and if he is found by the c
concerned authorities to be unsuitable for the post during th_e probation
period his service may be done away with. But nonetheless such a
probationer has a right to have an opportunity of hearing against the
order of dismissal/removal from the service if the same is made in effect
by way of punishment or the same casts a stigma on the service career of
D
the petitioner. [1141G-H; 1142A]
In the instant case, the petitioner has not been served with any
charges of misconduct in discharge of his duties as a police constable
nor has he ever been asked to show cause against the said charges. The
order of removal from service was made because of his. union activities
namely participating in the call for expressing the protest of the AssoE
'
ciation for improvement in service conditions by abstaining from taking
meals in the Mess on 15th August, 1982 although the petitioner like
other members of the association performed his duties on that day and
did not abstain from duty. [1144E·G]
P.L. Dhingra v. Union of India, AIR 1958 (SC) 36; Samsher
F
Singh v. State of Punjab and Anr., AIR 1974 (SC) 2192; Anoop Jaiswal
v. Government of India & Anr., AIR 1964 (SC) 636 and Ajit Singh &
Ors. v. State of Haryana & Ors., W.P. No. 9345-94 98/1983, followed.
y
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1615 of
~~-
G
(Under Article 32 of the Constitution of India).
R.P. Gupta for the Petitioner.
C.V. Subba Rao for the Responents.
H
1140
SUPREME COURT REPORTS
[1987] 3 S.C.R.
).
A
The Order of the Court was delivered by
B.C. RAY, J. Tlie petitioner who was appointed as a constable
in the Haryana Police Force on November 7, 1979 has challenged in
this writ petition the order dated August 24, 1982 issued by the Com·
mandant, 2nd Bn. Haryana Armed Police, Madhuban on the ground 1
B
that the impugned order of removal from service was in effect a penal
order and as such the same being made without complying with the )
requirements of Article 311(2) as well as the Rule 16.24(ix)(b) of the
Punjab Police Rules, 1934 is wholly arbitrary, illegal and unwarranted
and so the impugned order is liable to be quashed and set aside and the
petitioner to be reinstated in service. The facts of the case in a nutshell -
c are that the petitioner was enrolled as a constable in the Haryana
)-
Police Service in November, .1979 and he had been discharging his
duties attached to his office duly and properly. The petitioner was a
member of an unregistered Haryana Police Association. The said
association had been convassing for improvement in the Service condi·
lions of the police personnel serving with the Haryana Police and on
D several occasions made representations for improvement of the service
r
conditions of the members of the police service. As a part of its
campaign for improvement in service conditions, the association in the
month of July gave a call to all its members to participate in "a non·
taking of food campaign" which was to take place on 15th August,
1982. On that day the petitioner and other police personnel numbering '
E about 16,000 consisting of constables and head-constables of Haryana '
Police Force attended to their duties but they did not take their food in
....
the Mess. The protest undertaken by the Haryana police constables/
head-constables was a symbolic and peaceful one and no incident
r
whatsoever had occurred on that day. ·The respondents, however
issued order of dismissal/removal against 425 policemen under rule
F
12.21 of the said rules without serving on them any charge-sheet and
without giving them any opportunity of hearing against the charges,
prior to the passing of the said order of dismissal/removal from
service. About 154 of such policemen challenged the order of their
dismissal;removal from service in writ petition Nos. 9345 to 9498 of
1983 before this Court and the Constitution Bench of this Court after 'f
G
hearing, set aside the said order of dismissal from service and directed
reinstatement in service without any break in their service.
The petitioner because of his activities in the Association was
served with the impugned order of removal from service without being
given any opportunity of hearing and without being asked to show
H cause against the purported order of dismissal from service. The
HARDEEP SINGH v. STATE OF HARYANA (RAY, J.(
1141
petitioner has challenged the validity of this impugned order in this
A
writ petition. A return has been filed on behalf of the respondents
sworn by one Raj K. Vashishta, JPS, Commandant 2nd Bn. Haryana
Armed Police, Madhuban District, Kamai wherein in paragraph. 2 it
has been stated that the impugned order is not an order of dismissal
r from service and in fact this is an order of discharge made under rule
12.21 of the Punjab Police Rules, 1934 as applicable in Haryana. It has B
been further stated in paragraph 3 of the said affidavit that the
•
petitioner deliberately suppressed the facts that:
(i) That for his absence from duty, without leave for more than
24 hours with effect from 25. 10.80 he had been awarded 5
days P.D.
c
(ii) Again he had been warned for absence without leave for
five huurs on 21.4.81.
(iii) Notwithstanding the warnings and punishments awarded for
absence from duty in 1980, and again in 1981, the petitioner D
did not show any improvements in his performance and conduct and again absented from duty on 15th August, 1982.
It has also been stated that a recruit constable who within a span
of three years of his enrolment repeatedly absents from duty and does
"
not improve himself in spite of warnings, is not likely to prove an E
efficient police officer.
It has further been averred in the said affidavit that the petitioner
was discharged because the appointing authority (Superintendent of
Police) was of considered opinion on due assessment of his conduct
and performance that he was unlikely to prove an efficient police F
officer. These averrnents have been verified as correct according to the
information derived from the official records and believed by the
deponent to be true.
There is no dispute that the petitioner was enrolled as a cons-
\¥ table with effect from November 7, 1979 and he was on probation G
which is for a period of three years. It is also well settled that a probationer has no right to the post and if he is found by the concerned
authorities to be unsuitable for the post during the probation period
his service may be done away with. But nonetheless such a probationer
has a right to have an opportunity of hearing against the order of
dismissaltremoval from service if the same is made in effect by way of H
A
B
c
D
E
F
G
H
1142
SUPREME COURT REPORTS
[1987) 3 S.C.R.
punishment or the same casts a stigma on the service career of the
petitioner. In other words if the order of dismissal/removal from the
service is not one simpliciter on the ground that his service is no longer
required but in substance and in effect the same is made by way of
punishment, the probationer like the petitioner who has no right to the
post is to be given an opportunity of hearing. If such an order of "i
dismissal /removal from service is made without following the procedure envisaged in Article 311(2) of the Constitution of India as well as
)
rule 16.24(ix)(b) of the Punjab Police Rules, 1934 the same will be
illegal and bad and liable to be quashed. This position has been well
settled by this Court in the case of P.L. Dhingra v. Union of India,
AIR 1958 (SC) 36 wherein it has been observed as under:-
..,.
" ....... Passing on to Article 311 we find that it gives a
two-fold protection to persons who come within the article,
namely, (I) against dismissal or removal by an authority
subordinate to that by which they were appointed and (2)
against dismissal or removal or reduction in rank without
giving them a reasonable opportunity of showing cause
against the action proposed to be taken in regard to them.
Incidentally it will be noted that the word "removed" has
been added after the word "dismissed" in both Clauses (1)
and (2) of Art. 311. Upon Art. 311 two questions arise,
namely, (a) who are entitled to the protection and (b) what
are the ambit and scope of the protection?"
" ........ Shortly put, the principle is that when a servant
' ""
has right to a post or to a rank either under the terms of the
contract of employment, express or implied, or under the
r
rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a
lower post is by itself and prima facie a punishment, for it
operates as a forfeiture of his right to hold that post or that
rank and to get the emoluments and other benefits attached
thereto. But if the servant has no right to the post, as where
he is appointed to a post, permanent or temporary either
on probation or on an officiating basis and whose tempo-
~
rary service has not ripened into a quasi-permanent service as
defined in the Temporary Service Rules, the termination of
his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for
determining whether the termination of the service of a
government servant is by way of punishment is to ascertain
.....
-.,
,.
Ii.
·~
-<I
-~
1,
HARDEEP SINGH v. STATE OF HARYANA (RAY, J.)
1143
whether the servant, but for such termination, had the right
to hold the post. If he had a right to-tire post as in the three
cases hereinbefore mentioned, the termination of his
service will by itself be a punishment and he will be entitled
to the protection of Art. 311."
" ........ But even if the Government has, by contract or
under the rules, the right to terminate the employment
without going through the procedure prescribed for inflict·
Ing the punishment of dismissal or removal or reduction in
rank, the Government may, nevertheless, choose to punish
the servant and if the termination of service is sought to be
founded on misconduct, negligence, inefficiency or other
disqualification, then it is a punishment and the require·
ments of Art. 311 must be complied with."
In the case of Samsher Singh v. State of Punjab and Anr., AIR
1974 (SC) 2192 it has been observed as under:
"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."
It has been further observed that the form of the order may be
innocuous but if the order is really by way of punishment then the
protection under Article 311(2) will come into play and the probationer will be entitled to have an opportunity of hearing before the
A
B
c
D
E
F
'y impugned order of dismissal/removal from service is made. The G
substance of the order and not the form could be decisive.
In a later decision of this Court i.e. Anoop Jaiswal v. Govern·
ment of India and Anr., AIR 1984 (SC) 636 following the aforesaid
two decisions this Court has observed that:
H
1144
SUPREME COURT REPORTS
[1987] 3 S.C.R.
).
A
"The form of the order is not decisive as to whether the
order is by way of punishment and that even an innocuously worded order terminating the service may in the facts
and circumstances of the case establish that an enquiry into
allegations of serious and grave character of misconduct
involving stigma has been made in infraction of the provi- 1
B
sion of Art. 311(2). Where the form of the order is merely
a camoutlage 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 -
c
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."
In the instant case it is clear and evident from the averments
D made in paragraph 3, sub-para (i) to (iii) and paragraph (v) of the
~
counter-affidavit that the impugned order of removal/dismissal from
service was in substance and in effect an order made by way of punishment after considering the service conduct of the petitioner. There is
no doubt that the impugned order casts a stigma on the service career
of the petitioner and the order being made by way of punishment, the
E
petitioner is entitled to the protection afforded by the provisions of
~
Article 3 IJ(2) of the Constitution as well as by the provisions of Rule -
16.24(IX)(b) of the Punjab Police Rules, 1934. The petitioner has not
been served with any charges of misconduct in discharge of his duties
as a police constable nor has he ever been asked to show cause against
}
the said charges. The order of removal from service was made because
F
of his union activities namely participating in the call for expressing the
protest of the association for improvement in service conditions by
abstaining from taking meals in the Mess on 15th August, 1982
although the petitioner like other members of the association performed his duties on that day and did not abstain from duty. It cannot
be said in the facts and circumstances of the case that the impugned
G order is an order simpliciter of removal from service of a probationer
~
in accordance with the terms and conditions of the service. The
impugned order undoubtedly, tantamounts to dismissal from service
by reason of misconduct of the petitioner in discharge of the official
duties as police constable. This matter is fully covered by the decision
dated October 17, 1984 of the Constitution Bench in Aiit Singh & Ors.
H v. State of Haryana & Ors., (W.P. Nos. 9345-9498/1983) and we are
bound to follow the same.
...
HARDEEP SINGH v. STATE OF HARYANA [RAY, J.]
1145
In the premises aforesaid the writ petition succeeds and is
allowed, the impugned order of discharge of the petitioner from
Haryana Police Force under rule 12.21 of the Punjab Police Rules,
1934 passed by the Commandant, 2nd Bn., Haryana Armed Police is
quashed and it is directed that he be reinstated in ser,,,ice with 50%
'r back wages from the date of termination of his service till the date of
his reinstatement. He would, however, be entitled to his full salary and
c
other allowances admissible with effect from the date of his reinstate-
\.
ment. It is further directed that there would be no break in i:ontinuity
of service for purposes of seniority and pensionary benefits. No costs.
M.L.A.
Petition allowed .
A
B