Decided on April 26,1967



Tare J. - (1.) THIS petition under Article 226 of the Constitution of India challenges the order dated 8-7-1963 passed by the Inspector-General of Police terminating the services of the petitioner as a Sub-Inspector of Police on one month's notice on the assumption that the petitioner was a temporary Sub-Inspector. The petitioner's contention has been that he has been a probationary Sub-Inspector appointed with effect from 1-1-1959 on two years' probation. His period of probation was never extended. Being an employee on probation, his services could not be terminated in the manner after the period of probation was over and he was continued in service. It was also alleged that certain false reports had been made by interested political workers; and as a result, a departmental enquiry was also started and a criminal prosecution was launched against the petitioner. But the departmental enquiry was dropped as the allegations were found to be baseless. Similarly the criminal Court discharged the petitioner by observing that the allegations regarding a criminal offence were baseless and mischievous. It has been contended by the petitioner that as no departmental action or legal action in a Court of law could be taken, the order of termination of services has been passed so as to bypass those impediments. As such it is contended that the socalled order of termination of services is a fraud on the provisions of Article 311 (2) of the Constitution of India and the rules and regulations by which the petitioner is governed.
(2.) ON behalf of the State, the stand is that the petitioner has been a temporary employee, and not a probationer. It is admitted that a criminal prosecution was launched and a departmeatal enquiry was also instituted. But as the allegations were found to be without foundation, the departmental enquiry was dropped and the criminal Court discharged the petitioner. It is further alleged that the action taken for terminating the services has nothing to do with the departmental enquiry or with the criminal charge. As the petitioner is a temporary Sub-Inspector, his services can be terminated on one month's notice and the order passed does not cast any reflection on the petitioner in his capacity as a public servant. Therefore, the same cannot be challenged in a writ petition, The law on this aspect is more or less settled by the pronouncement of their Lordships of the Supreme Court in Champaklal Chimanlal Shah v. The Union of India(AIR 1964 SC 1854). I may summarise the conclusions of their Lordships by stating that the services of a temporary servant can always be terminated in the terms of the contract. Such termination would not be actionable in a Court of law unless it is found that a fraud on the statute has been committed. But all the same, a public servant cannot be dismissed or removed without complying with the requirements of Article 311 of the Constitution. Similarly, if the services of a probationer are dispensed with during the period of probation on the ground that he is not found fit or he is not upto the standard, such order dispensing with his services also cannot be actionable unless it is established that a fraud on the statute has been committed. However, even a probationer cannot be dismissed or removed without complying with the provisions of Article 311 of the Constitution. In the present case, the order of appointment (to be found at page 73 of the paper book) is prima facie an order of appointment of the petitioner as a temporary Sub-Inspector with effect from 1-1-1959. Similarly, the order of termination of services, dated 8-7-1963 (to be found at page 41 of the paper book) is also a simple order of termination of service on one month's salary in lieu of notice. Thus the order terminating the services cannot be said to be for any ulterior purpose, or it cannot be construed to be a fraud on the statute. If the petitioner's appointment be a temporary Sub-Inspector, the State would have the right to terminate his service on one month's notice. But another question arises whether the petitioner was in fact a temporary Sub-Inspector or a probationer Sub-Inspector. It is necessary to examine this question in some details as some confusion is created on account of the fact that the petitioner has been described as a temporary Sub-Inspector by the Inspector-General of Police, while in some other correspondence made on behalf of the State Government and the Superintendent of Police, he has been described as a probationer Sub-Inspector. We are also required to scrutinise whether a temporary Sub-Inspector could be appointed by the State Government. In this connection, the petitioner's contention is that although described as a temporary Sub-Inspector, his appointment should be held to have been on a probationary basis.
(3.) THE agreement between the petitioner and the Inspector-General of Police (annexure I) (to be found at page 71 of the paper book) after he passed from the M. P. Police College, Sagar, would indicate that the petitioner's appointment would be more or less on a probationary basis. Rule 48 of the Police Regulations framed by the State Government by virtue of powers conferred by section 46 (2) read with sections 2 and 7 of the Police Act, 1861 would indicate that Sub-Inspectors can be appointed in two ways only. One is a category of Departmental Sub-Inspectors, who are promoted from the grade of Assistant Sub-Inspectors or Head Constables. In their case, it is not necessary to keep them on probation. It is discretionary with the authorities whether to keep them on probation or otherwise. But as regards candidates, who pass from the Sagar Police College they have to be kept on probation for a period of two years or for such extended period as the appropriate authority may think proper. THEy are described as outsider Sub Inspector in the Police Regulations. THE Police Regulations at least do not provide for appointment of outside candidates as temporary Sub-Inspectors. THErefore, the position is that unless the respondent is able to invoke the provisions of the Civil Service Regulations, which provide for the appointment of temporary employees, any outsider candidate appointed as a Sub Inspector will undoubtedly be a probationary Sub-Inspector. Prior to the enactment of the 1950 Constitution, Police Services were excluded from the operation of the Civil Service Regulations. They had a separate Code of their own. But they were only subjeet to the provisions of section 240 (3) of the Government of India Act, 1935. But in the 1950 Constitution that distinction has been abolished and every Police Officer is deemed to hold a civil post either under the Union or under the State. As such the post of a police officer being a civil post under an appropriate Government, the State Government or its officers can certainly make temporary appointment of police officers in case it is found that relevant provisions of the Civil Service Regulations have been applied by the State Government to the Police Department. On the facts of this case, it is also clear that if the petitioner be a temporary Sub-Inspector validly appointed in that capacity, the order of termination of his services calls for no interference. But if on the other hand, it be found that the petitioner's appointment is in a probationary capacity, in that event the order of termination cannot be sustained either on facts or in law ; and it will have to be quashed. The appointment was with effect from 1-1-1959, while the purported termination was on 8-7-1963, that is much after the period of probation had ended and there does not appear to be on record any material to indicate that the period of probation was ever extended. The service of a probationary employee cannot be terminated after the period of probation unless it is extended. His services can, however, be discharged during the period of probation. But such is not the present case ; and, therefore, the present case solely depends on the fact whether the petitioner's appointment should be construed to be in a probationary or a temporary capacity.;

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