GUPTA, J. - (1.) THE facts of this case lie in a narrow compass. THE petitioner was selected for the post of Sub-Inspector Grade II in Railway Protection Force, Western Railway in August, 1966. He was called upon to undergo a training for the period of 15 months and also to execute a bond dated September 20, 1966. THE learned counsel for the parties are agreed that Ex R/l may be taken to be the correct copy of the bond. After undergoing training, the petitioner was appointed as the Sub-Inspector on probation for a period of two years vide order Ex. R/3 dated Nov. 25, 1967 with effect from Nov. 1, 1967. THE petitioner's case is that Shri Chandgi Ram, Inspector, Railway Protection Force was transferred sometime in April, 1968 and Shri Madan Gopal took over charge of the said post as the immediate senior officer of the petitioner and he bore malice and ill-will against him and made certain false reports against him as a result of which the Security Officer, Ajmer gave him a notice dated August 28, 1968 (Ex. 5) under Rule 25 (2) of the Railway Protection Force Rules, 1959 (hereinafter referred as 'the Rules') in which 5 charges were levelled against him and it was alleged that he was negligent and dishonest in the discharge of his duties and that his work and conduct as Sub-Inspector and a member of Railway Protection Force was unbecoming and unsatisfactory. THE petitioner was given an opportunity to submit his representation within 14 days of the date of receipt of the aforesaid notice Ex. 5. THE petitioner submitted his representation on September 11, 1966, but after considering the same, the Security Officer, by his order dated October 9, 1968 (Ex. 7), held that 'the work and conduct' of the petitioner as a member of the Railway Protection Force was 'unsatisfactory' and, therefore, ordered that the services of the petitioner be terminated 'with immediate effect'. THE petitioner filed an appeal against the aforesaid order of the termination of his services before the Chief Security Officer. However, the appeal was dismissed by the Chief Security Officer by his order dated May 29, 1969 in which it was observed that the conclusion arrived at by the Security Officer that the 'work and conduct' of the petitioner has been 'unbecoming and unsatisfactory' was correct and he entirely agreed with the same.
(2.) THE petitioner felt aggrieved by the aforesaid order of termination of his Services and has come up before this Court under Art. 226 of the Constitution of India and has prayed that the order of the termination may be set aside and the respondents may be directed to re-instate him on the post of Sub-Inspector. THE Railway Adminis-tiation has submitted its reply and has contended that the termination of the petitioner's services, who was merely appointed on probation, was in accordance with the provisions of the Rules and the grievance of the petitioner is not justified. Mr. Mehta, learned counsel for the petitioner, has submitted three contentions before me: - (i) That the order of the termination of the petitioners services (Ex. 7), could not have been passed under the provisions of Rule 25 (2) of the Rules as he was appointed on probation for the period of two years and the aforesaid period had not expired when the notice Ex. 5 was given or even when the order of termination Ex. 7 was passed and that his services could have been terminated during the probationary period only in accordance with the provisions contained in the service agreement (Ex. R/l), which provided that the Chief Security Officer could do so by giving him one month's notice or one month's pay in lieu of such notice. As such, it is submitted, that the order of termination Ex. 7 was illegal and without jurisdiction. (ii) That the notice Ex. 5 mentioned five grounds, in which it was Inter alia alleged that the petitioner was reported to be dishonest in the discharge of his duties as Sub-Inspector and that in the order passed by the Security Officer as well as in the order passed on appeal by the Chief Security Officer, it was held that his 'work and conduct' were 'unbecoming and unsatisfactory' and in view of these facts it was not a case of termination simpliciter but was a case in which a stigma was attached to the alleged termination and it was clearly by way of punishment, which attracted the provisions of Art. 311 (2) of the Constitution. But as no disciplinary proceedings were taken against the petitioner, the alleged order of termination was illegal and void. (iii) That the appointing authority in the case of the petitioner was the Chief Security Officer and as such his services could not have been terminated by the lower authority namely, the Security Officer, and on this ground also the order of termination Ex 7 was illegal. Mr. Jain, learned counsel for the Railway Administration, on the other hand, contends that the termination of the petitioner's services was in accordance with the Rules. The notice Ex. 5 was under Rule 25 (2) and so was the order of termination Ex. 7. He submits that as the procedure prescribed in R. 25 (2) has been complied with fully, the order of termination was perfectly valid. He further submits that the Railway Administration did not intend to attach any stigma to the termination of the petitioner's services. As a matter of fact no stigma was cast upon the petitioner, but his services have been terminated strictly in accordance with the provisions of the Service Rules and that the termination of his services under Rule 25 (2) did not amount to a penalty within the meaning of R. 41 on account of clause (viii) of the explanation attached to the said rule. As such the provisions of Art. 311 (2) of the Constitution are not attracted in the present case. Mr. Jain further submitted that under the provisions of sec. 6 of the Railway Protection Force Act, the powers of appointment of a Sub-Inspector were delegated to the Security Officer, in accordance with R. 20 read with Schedule I appended to the Rules and as such the Appointing Authority, in the case of the petitioner, was the Security Officer and not the Chief Security Officer. He, therefore, submits that the Security Officer had the jurisdiction to terminate the services of the petitioner, who was a mere probationer, during or at the end of the period of his probation. In order to decide the contentions raised by the learned counsel for the petitioner, I may read R. 25, which is as under - "25. Probation - (I) All appointments by direct recruitment or promotion shall be on probation for two years subject to the provision that the appointing authority may extend this period in special cases. (2) The appointing authority shall, on the expiry of the period of such probation or such extended period, pass an order declaring that the probationer has completed the period of probation satisfactorily and is suitable for confirmation in that rank. If he considers him unsuitable, the probationer shall be informed in writing of the reasons for terminating his probation and given an opportunity to submit any representation he may wish to make within a reasonable time and any representation submitted within that time shall also be considered and final orders passed by such authority. " Clause (viii) of the Explanation appended to R. 41 may also be noticed in this connection, which runs as under - " (viii) termination of service - (a) of a member of the Force appointed on probation, during or at the end of the period of probation, in accordance with the terms of his appointment or the rules and orders governing probation ; or (b) of a member of the Force employed under an agreement in accordance with the terms of such agreement; (c) of a member of the Force appointed in a temporary capacity or for a specified period on one month's notice or on tender of pay of one month in lieu of notice on the expiry of the period. "
(3.) CLAUSE (2) of the service agreement (Ex. B. 1) runs as under - "2. I understand and agree that my services can be terminated - (a) by the Chief Security Officer at any time on issue of notice of one month or the tender of one month's pay in lieu of such notice; or (b) by the appointing authority without notice on my failure to pass the final examination of the initial training course. " This service agreement was executed on September 20, 1966 in pursuance of the provisions of R. 23 of the Rules. Learned counsel for the petitioner argues that the provisions of R. 25 (2) of the Rules could only be made applicable at the end of the period of probation or the extended period of probation and that the procedure prescribed in R. 25 (2) of the Rules could not be applied, as in the present case, when the termination was during the period of probation. On the other hand, learned counsel for the respondents submits that the termination of services which has been referred to in clause (viii) of the Explanation attached to Rule 41 of the Rules, is to be brought about in accordance with the procedure prescribed in Rule 25 (2) of the Rules and as clause (viii) of the aforesaid Explanation provided that the termination of the services of a probationer could be made 'during or at the end of the period of probation', the provisions of Rule 25 (2) of the Rules could not be limited to be exercised only at the end of the period of probation or the extended period. I may observe that sub-ctause (l) of Rule 25 of the Rules provides that all appointments would be on probation for a period of two years and also confers the power on the appointing authority to extend this period of probation. The first part of sub-rule (2) of Rule 25 of the Rules speaks of satisfactory completion of the period of probation and provides that if at the end of the period of his probation, the Probationer is found suitable for confirmation then the appointing authority shall pass an order to that effect. The second part of clause (2) of Rule 25 of the Rules further provides that if the appointing authority considers the probationer unsuitable, he will be informed in writing of the reasons for terminating his probation and he will be given an opportunity to submit his representation and after considering the representation submitted by him the appointing authority shall pass final orders. How the question is as to whether the two parts of sub-rule (2) of Rule 25 of the Rules envisage different situations, on the expiry of the period of probation or the extended period and during the continuance of the period of probation or that they represent an integrated procedure for deciding the suitability or unsuitability of the probationer at the end of the period of his probation. In case such provisions are dis-junctive, the enquiry about the unsuitability can be made at an earlier stage during the period of probation, but it is not so then such an enquiry could only be made at the end of the probationery period. As I read sub-clause (2) of Rule 25 of the Rules, I have no hesitation in holding that they represented an integrated procedure. The opening words of the second sentence of sub-clause (2) of Ruie 25 of the Rules are indicative of the fact that the procedure prescribed thereafter is applicable to the circumstances envisaged in the first sentence of sub clause (2 ). It is important to notice here that the second sentence in sub-clause (2) of Rule 25 of the Rules begins with the words "he considers him unsuitable". Now, 'he' refers to the appointing authority mentioned in the first sentence of sub-clause (2) and 'him' refers to the probationer also mentioned in the first sentence of the sub-clause (2 ). It has been further provided in the second sentance of this sub-clause that after considering the representation, which may be submitted by the probationer in pursuance of the show cause notice given to him "final orders" shall be passed by such authority. Those words also go to show that reference is made to the situation envisaged in the first sentence of this sub-clause. Learned counsel for the respondents has laid his emphesis on the words 'for terminating his probation' occurring in the second clause of Rule 25 of the Rules and submits that if the enquiry envisaged therein is to be at the end of the period of probation, then the question of termination of probation would not arise. I may, however, observe in this connection that the enquiry regarding satisfactory or unsatisfactory performance of work by the probationer is to be made sometime before the end of the period of probation and after that enquiry, three courses are open to the appointing authority, namely, - (a) if it is found that the probationer has completed the period of probation satisfactorily, then he will be declared suitable for confirmation; (b) if it is found after considering the explanation submitted by the probationer that he is unsuitable then his probation shall be terminated; and (c) if on considering the representation which may be made by the probationer in reply to the show cause notice, which is served upon him, the appointing authority may come to the conclusion that although the work of the probationer may not be satisfactory and he may not be considered suitable for confirmation, yet it would be proper to give him further opportunity and in that event the appointing authority may extend the period of probation. ;