Employee Found Unsuitable For Job Can Be Dismissed Without Notice During Probationary Period : Supreme Court

The Supreme Court recently reiterated the distinction between simpliciter termination and punitive termination. This distinction is crucial since if the order of termination is punitive or stigmatic in nature, it becomes mandatory to conduct an inquiry following the procedure and an opportunity to be heard has to be given. Failure to do so may make such termination/discharge illegal and in violation of principles of natural justice.

The Court relied on the State of Punjab v. Balbir Singh, (2004) which emphasized that if an enquiry or assessment is conducted with the aim of uncovering any misconduct by an employee and results in their termination, it is considered punitive in nature. Whereas, if it is focused on evaluating an employee's suitability for a specific job, the termination is considered termination simpliciter and not punitive.

The Court had observed “If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simpliciter and not punitive in nature. This principle was laid down by Shah, J. (as he then was) as early as 1961 in the case of State of Orissa v. Ram Narayan Das, (1961). It was held that one should look into “object or purpose of the enquiry” and not merely hold the termination to be punitive merely because of an antecedent enquiry. Whether it (order of termination) amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry.”

The Supreme Court bench comprising Justices J.K Maheshwari and Justice K.V. Viswanathan was hearing an appeal against a judgment of the Punjab & Haryana High Court which dismissed the plea challenging the orders of courts below holding that the discharge of the probationary constable(respondent) was illegal and he was entitled to receive all service benefits.

The Respondent was appointed as a constable and joined duty on 12th November 1989. During his probation period, he remained absent without any communication. The Superintendent of Police at the Training Centre recommended his discharge on the ground that he was unlikely to become an efficient police officer under Rule 12.21 of the Punjab Police Rules, 1934.

The respondent challenged the order before the trial court which held the discharge order to be illegal since it was passed in violation of the principles of natural justice. Thereafter, the first appellate court held that he was entitled to receive all service benefits as accrued. Aggrieved by the same, the state filed an appeal before HC which was also dismissed. Then, they approached the Supreme Court.

The Court at the outset referred to Rule 12.21 of the Punjab Police Rules, 1934.

“12.21 – A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment. There shall be no appeal against an order of discharge under this Rule.”

The Court referenced a full Bench of the P&H High Court in the case of Sher Singh, Ex-Constable v. State of Haryana( 1994)which had held that the SP can invoke Rule 12.21 based on the performance and suitability of the probationary.

It had opined “If on a consideration of the relevant material, the SP finds that a particular constable is not active, disciplined, self-reliant, punctual, sober, courteous, straightforward or that he does not possess the knowledge of the technical details of the work required to be performed by him, he can reasonably form an opinion that he is not likely to prove an efficient police officer. It further held that in such a situation, the SP can invoke his power under Rule 12.21 of PPR and can discharge the constable from the force.”

Such a view was also approved by the Apex court in Superintendent of Police v. Dwarka Das, (1979).

Furthermore, the Supreme Court reiterated the principle in Sukhwinder Singh's case that if an employee is found unsuitable during the probationary period, the employer retains the right to terminate their service without the need for a punitive inquiry.

“If he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during the period of probation. The mere holding of a preliminary inquiry where an explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24 of the Rules.”

The Court cited the case of Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (2002) which reiterated the importance of language in termination orders and held that “In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.

The Court found that the foundational grounds for discharge in this case did not involve any serious allegations or acts of misconduct. Instead, it was based on the prolonged absence of the probationary constable from training without any intimation.

Therefore, it held “In our considered view, all the three Courts misconstrued Rule 12.21 of PPR and decreed the suit filed by the respondent. Looking to the contents of the order of discharge, in the considered opinion of this Court, there is no foundation of misconduct alleged in the order and it is an order of simpliciter discharge of a probationer constable.”

In light of the above, the court allowed the appeal and held that the view taken by the High Court and also by the two courts below is completely erroneous in law and must be set aside.

Case title: State of Punjab v. Jaswant Singh

Citation: 2023 LiveLaw (SC) 761, 2023INSC798

Click Here To Read/Download Judgment