R.M. Sahai, J. - (1.) IN this Plaintiff's second appeal the only controversy that survives for consideration is if the discharge from service of Appellant, a police constable, was by way of punishment or in accordance with service rules. It has been found that Appellant was appointed as constable in 1963 against whom proceedings under Section 161 Indian Penal Code and Section 5(4) of the Prevention of Corruption Act were taken but the Investigating Officer submitted a final report in 1967 as the evidence was not sufficient for submission of charge -sheet. It appears the Appellant was discharged from service on same day. He filed an appeal but it was dismissed by Deputy Inspector General of Police. He repelled the contention of Appellant that discharge was by way of punishment. It was observed that the action was not taken against him because of any departmental proceedings but because his services were no longer required. And as he could apply, subsequently, it did not cast any stigma on him. In Civil Court the Appellant claimed that he was appointed on probation and the period of probation having expired he became a permanent employee. It was also claimed that under police regulations he could not be appointed temporarily. Reliance was placed on various paragraphs of Police Regulations. But the appellate Court repelled these contentions on strength of a Full Bench decision in Nanak Chand v. State of U.P., 1971 AWR 431. Although the submissions were reiterated by Appellant who appeared in person but it is devoid of any substance.
(2.) BUT the services of temporary employees also enjoy the protection of Article 311 of Constitution of India. In Nepal Singh v. State of U.P., AIR 1980 SC 1456, it was held: It is now settled law that an order terminating the services of a temporary government servant and ex -facie innocuous in that it does not cast any stigma on the government servant or (sic) him with penal consequences must be recorded as effecting termination simplicitor, but if it is discovered on the basis of material adduced that although innocent order in its terms, the order was passed in fact with a view to punishing the government servant, it is a punitive order which can be passed only after Constitution...enquiry called for in such a case has been outlined one of his in State of Maharashtra v. Veerpopa R. Saboji, AIR 1981 SC 42:, 1979 Lab. IC 1389. But question which calls for determination in all such cases is whether on such facts satisfied the criterion repeatedly laid down by this Court that an order is not passed by way of punishment, and is merely an order of termination simplicitor, if the material imposed the government servant on which the superior authority has acted constitutes motive and not the foundation for the order. The application of the test is not always easy.... Entire ranging of facts carefully and considered whether in the light of those facts the Superior authority intended to punish the government servant, or, having regard to his character, conduct and by him it was intended simply to terminate his services. The function of the Court is to discover the nature of the order by attempting to ascertain what was motivating consideration in the mind of the authority which prompted the order. From a combined reading of paper numbers 47K/18 and 47K/22 it appears Ram Prasad and others sent a complaint by post in October, 1965 to Superintendent of Police under Section 161 IPC and Section 5A of U.P. Prevention of Corruption Act against Appellant but as no action was taken they sent another complaint to District Magistrate in December, 1965. Probably its was at the initiative of District Magistrate, although that is hardly of any consequence, but the machinery was set in motion and in the bottom of complaint received in the office of Superintendent of Police the following order was passed by him, C.I.II Kindly refer to your note dated 25 -1 -1966. 2. Two applications of Ram Prasad s/o Musai Ahir, resident of village Injani and others in original alongwith your enquiry report (13 pages in all) are enclosed. 2A. A case may kindly be registered at once and copy of the FIR sent to me so that permission for investigation could be obtained from a first class Magistrate. Encls. As above (13 pages) No. Complaint -228/65. Sd. V. Panjani, Supdt. of Police 4 -2 -60. After sanction was obtained the Superintendent of Police directed the CI II to finish the investigation as early as possible. The CI II, however, submitted a final report. And the trial Court found from paper No. 3 of the summoned file of criminal case No. 14 of 1965, that a letter was sent by someone to Public Prosecutor for putting draft for departmental action against Appellant. And some draft was put before Superintendent of Police but he on 3rd of January, 1967 discharged the Appellant from service. The trial Court found following note recorded. a case on Crime No. 14 under Section 161 IPC, 5(2) Prevention of Corruption Act was registered against C/CP Rana Pratap Singh of P.S. Pipri, which was investigated by the CI with the permission of the ADM(J). The case has ended in final report as the evidence was not found sufficient for a charge -sheet. Evidence for departmental proceedings against the constable was enough. C/Rana Pratap Singh has been discharged from service, and so the question of taking departmental action against him does not arise. The portion evidence for departmental proceedings against the constable was enough has been cut off.
(3.) ON 7 -1 -1967 a note was submitted to District Magistrate that the recommendation of S.P. for accepting final report be accepted as the investigation by the CI revealed that there was truth in the allegations but that prosecution cannot be successful for want of sufficient evidence (Paper No. 47K/8). On 10th January the report was accepted and the following order was passed on 16th January, 1967 on Paper No. 47/Ka/8, The final report is accepted. Ex Constable Rana Pratap Singh, be debarred from future permanent employment.;