GD Constable Anil v. Union of India & Ors.

1. The petitioners challenge the order of 17.05.2013 discharging 2015:DHC:5842-DB W.P.(C)6107/13, 3242/14 Page 2 them from the Sashastra Seema Bal (SSB). The impugned order (hereafter referred to as “discharge order”) invoked Rule 16 of the Sashastra Seema Bal Rules, 2009.

2. The brief facts are that the petitioners were inducted into the SSB and sent for 44 weeks’ training at Debendranagar, Assam. During the period of training, in January 2013, they were granted mid-term break for 14 days. After completion, they boarded Guwahati Sampark Kranti Express on 29.01.2013. When the train halted at Mughal Sarai Railway Station, the petitioners were de-boarded, after being informed that two First Information Reports (FIRs), i.e. 34/2013 and 34(A)/2013 were lodged. These alleged commission of offences punishable under Sections 354/307 IPC. The petitioners were arrested but granted bail on 09.02.2013. The criminal case has not ended. After the petitioners reported for duty on 11.02.2013, a Court of Inquiry was conducted. This culminated in an order which led to Summary Force Court proceedings which resulted in imposition of two months’ imprisonment in force custody and forfeiture of pay and allowance for 14 days. On 17.05.2013, the SSB authorities opined that the imposition of penalty by Summary Force Court proceedings was not in accordance with law since the allegations pertained to commission of criminal offence of which cognizance had been taken by the competent court. In the light of the provisions of the Sashastra Seema Bal Act, 2007, which mandate that in such eventuality, the trial of offences pending before the competent court could be taken over – which was not done, the entire proceedings culminating in the imposition of penalty was illegal. On W.P.(C)6107/13, 3242/14 Page 3 the same day, the respondents issued the discharge order; the discharge order in respect of both the petitioners (Anil and Sonu Yadav) inter alia stated as follows: In respect of Anil: “AND WHEREAS, in accordance to the powers available to the undersigned as per Section 132 of SSB Act, 2007 read with Rule 185 of SSB Rules, 2009, I have annulled the proceedings of SFC vide order No.08/JAG/FTR-GHY/13/7810-19 dated 17.05.2013 on the ground that the said proceedings were illegal as the SFC has been convened without taking over the case from concerned Police/Judicial authorities for invoking the concurrent jurisdiction available to the Force Courts. NOW THEREFORE, in terms of clause-4 of Part-II (Condition of Service) of Appendix-I under Rule 16 of SSB Rules, 2009, I the undersigned hereby order to discharge RCT/GD constable No.120793943 Anil from service from the date of receipt of this order as he has failed to conduct himself as an efficient member of the Force.”

XXXXXX XXXXXX In respect of Sonu Yadav: “AND WHEREAS, in accordance to the powers available to the undersigned as per Section 132 of SSB Act, 2007 read with Rule 185 of SSB Rules, 2009, I have annulled the proceedings of SFC vide order No.08/JAG/FTR-GHY/13/7810-19 dated 17.05.2013 on the ground that the said proceedings were illegal as the SFC has been convened without taking over the case from concerned Police/Judicial authorities for invoking the concurrent jurisdiction available to the Force Courts. NOW THEREFORE, in terms of clause-4 of Part-II W.P.(C)6107/13, 3242/14 Page 4 (Condition of Service) of Appendix-I under Rule 16 of SSB Rules, 2009, I the undersigned hereby order to discharge RCT/GD constable No.120796498 Sonu Yadav from service from the date of receipt of this order as he has failed to conduct himself as an efficient member of the Force.”

3. The petitioners contend that the impugned order is in a sense a stigmatic one because it relies upon the materials which formed the basis of abortive summary court proceedings. Having once decided to initiate disciplinary proceedings and even continue with the process up to the imposition of penalty, the respondents could not legitimately have sought recourse to the power to discharge or terminate them simpliciter. It is argued secondly that even though the petitioners were indicted for the alleged criminal offence in that they have been named in the charge sheet before the police, their case is no different from eight others who are continuing in the force. Characterizing the respondents’ position as discretionary, learned counsel submitted that in similar circumstances where other SSB personnel also alleged to have been involved in some incident were discharged, this Court directed their reinstatement. Learned counsel cites the judgment of the Court in W.P.(C) 4804/2014 - Sonu Kumar v. UOI and Ors., (decided on 28.11.2014). Lastly, it was contended that the SSB cannot rely upon Rule 16 of the Sashastra Seema Bal Rules, 2009, to invoke the power of discharging a personnel simpliciter. Alternatively, it is submitted that the reference to Clause 4 of the Conditions of Service contained in the appointment letter is also of no consequence.

4. Learned counsel for the respondents submits that the power to discharge any personnel in the SSB who is not even a probationer was W.P.(C)6107/13, 3242/14 Page 5 validly invoked in the circumstances of the case. It is highlighted that even though the proceedings were drawn and resulted in imposition of penalty by Summary Force Court, the fact remained that they were without jurisdiction as the entire proceedings had to be taken over from the criminal court in accordance with law. In such circumstances, the material which formed the basis of that process or proceedings always remained and could be validly considered. These were in the form of serious allegations of misbehaviour by the petitioners, among other SSB personnel who were traveling in the train. The misbehaviour in question was directed against some NCC women cadets who were co-passengers.

5. Rules 15 and 16 of the SSB Rules, 2009 reads as follows:

6. The facts reveal that the initial Summary Force Court proceedings, that resulted in the imposition of two months’ W.P.(C)6107/13, 3242/14 Page 7 imprisonment in force custody and forfeiture of pay and allowance for 14 days, was correctly considered, on 17.05.2013- by the SSB itself to be irregular and without jurisdiction, given that the allegations were seized of by the competent criminal court which had taken cognizance of the offence. Quite correctly, the SSB cancelled those proceedings and the penalty. The question is whether the SSB ought to have initiated a fresh domestic proceeding, to determine the misconduct. The petitioners would urge that the SSB cannot; the latter asserts to the contrary.

7. The conditions of service which the petitioners agreed to in the contract which they entered into with the SSB at the time of engagement inter alia states as follows:

This is undeniable, because the condition forms part of the appointment letter/order, which was accepted by the petitioners. It is evident that the events which preceded the petitioners' termination cast their shadow. They were arrested and later tried by the Summary Force Court. That proceeding was insupportable in law and set aside. The contention that the material which formed the basis of that proceeding could not have been taken into account has to be seen in the context of whether the foundation of the termination order is misconduct, or if it is merely unfitness of the petitioners to hold the post. W.P.(C)6107/13, 3242/14 Page 8

8. It is established law that a probationer does not possess the right to hold her or his post and can be terminated from employment in terms of the rules (Purshottam Lal Dhingra v Union of India AIR 1958 SC 826). The decision in State of Bihar v Gopi Kishore Prasad AIR 1960 SC 689 is authority for the proposition that termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is not penal. However, if inquiry is held without following full procedure, and that forms the basis of termination, the discharge (or termination) is penal and stigmatic. It was also observed that "But, if the employer simply terminates the services of the probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause." Shamsher Singh v. State of Punjab AIR 1974 SC 2192 is authority for the proposition that motive for a termination order is irrelevant. If the foundation of the order is some misconduct, its seemingly innocuous nature does not protect it; the court can declare it to be punitive.

9. In Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre (1999) 3 SCC 60 one of the questions which arose for consideration before the Supreme Court was in what circumstances, the termination of a W.P.(C)6107/13, 3242/14 Page 9 probationer's services can be said to be founded on misconduct and in what circumstances could it be said that the allegations were only the motive. The Court observed as under:- "If findings were arrived at an inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations will be bad. But if the inquiry was not held, no findings were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid." In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (2002) 1 SCC 520 it was held that: "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."