Probationer In Police Dept Can't Be Terminated On Grounds Of Misconduct Sans Inquiry Under Karnataka Civil Service (Probation) Rules: High Court

A division bench of Justice S.G. Pandit and Justice Anant Ramanath Hegde said,

"It is true that the petitioner has no right to hold the post and he can be terminated at any time during or at the end of the probationary period for general unsuitability, but a probationer cannot be discharged imputing allegations amounting to misconduct. If any misconduct is alleged, then enquiry under Rule 7 of '1977 Rules' is necessary."

The bench allowed the petition filed by one Ramesh Malli and quashed the order of discharge. It also set aside the order passed by the Karnataka State Administrative Tribunal at Belgavi, upholding the discharge order.

Case Background:

The petitioner was selected and appointed as Police Constable (Wireless) in 2017. In 2018, the Police Department invited applications from eligible candidates to fill up posts of Sub Inspector (Civil) (Male and Female) and it also provided an opportunity to the in-service candidates. The petitioner being the in-service candidate made an application for the post of Sub Inspector, on obtaining no objection from the Department. He was issued with the admission ticket for the competitive examination.

The CCB Police, Bengaluru had received information that some persons had conspired for leakage of the question paper. In that regard Crime No. 291/2019 came to be registered and the petitioner was arrested along with others for interrogation. The next day, he was remanded to judicial custody and was subsequently granted bail. Thereafter, the petitioner was not taken to duty.

The department obtained a report from the Police Inspector (Wireless), District Control Room, Bengaluru, against the petitioner. Based on the said report, order was passed under Rule 6 of Karnataka Civil Service (Probation) Rules, 1977, discharging the petitioner from service. The same came to be challenged by the Tribunal which dismissed the petitioner's application. Following which he approached the court.

Petitioner submissions:

Advocate Gangadhar. J.M, appearing for the petitioner said that the Tribunal failed to appreciate the contention of the petitioner that the order of discharge is a stigmatic order. Further, it said that the impugned order is not an order of discharge simplicitor, but it alleges that the petitioner is irresponsible in his duty and the petitioner has exhibited misconduct by involving himself in criminal proceedings.

It was also contended that when the authority alleges misconduct, it is mandatory for the appointing authority to conduct enquiry and thereafter to discharge the petitioner. Rule 7 of '1977 Rules' provides for conducting enquiry where misconduct is alleged against a probationer.

Respondents opposed the plea:

Advocate G.K. Hiregoudar submitted that the petitioner had been involved in a serious criminal case which related to leakage of question paper of Police Sub Inspector competitive examination. The petitioner being a Police Constable, a personal belonging to the disciplinary force involved in a question paper leakage case, would be against the interest of the Police force and against the interest of the State.

Court findings:

The court going through the rules said, "Rule makes it abundantly clear that at any time during the period of probation the appointing authority could discharge a probationer from service on account of his unsuitability for the service or post or on grounds arising out of conditions imposed by the Rules or in the order of appointment with the approval of the next higher authority, except when it is passed by the Government."

It added, "From a careful reading of the above rule (Rule 7), it is clear that when misconduct is alleged against a probationer no order of termination shall be passed except in accordance with CCA Rules by conducting enquiry."

The court then went through the order of discharge and noted when the misconduct is the foundation for discharge it requires enquiry as contemplated under Rule-7 of 1977 Rules. The Apex Court has held that if the misconduct is the foundation for discharge, such order becomes bad in law.

It then observed, "From a reading of the above order it can be said that it is not an order of discharge simplicitor and it is a stigmatic order. The recital in the order of discharge refers to involvement of petitioner in commission of crime and his detention in judicial custody, which itself would be stigmatic. Moreover, a reading of the order of discharge also indicates that the respondent No.2 had obtained a report from the Police Inspector with regard to the alleged incident."

It added, "The said report was also the basis for discharge. The Tribunal failed to appreciate the basis or foundation on which the order of discharge was passed."

The court then held, "Definitely the order of discharge is an order of discharge imputing serious allegations against the petitioner which are not proved in any enquiry as required under Rule 7 of '1977 Rules'. Rule 6 of '1977 Rules' would be inapplicable to the facts of the present case. The petitioner is not discharged on account of general unsuitability as concluded by the Tribunal."

It opined, "On the face of the order of discharge, it is manifest that the order of discharge is a camouflage for order of dismissal for misconduct." Following which the court allowed the petition and granted liberty to the respondents to proceed against the petitioner in accordance with Rule 7 of '1977 Rules'.

Case Title: Ramesh Malli v. The Deputy Inspector General Of Wireless

Case No: W.P. No. 104944/2021

Citation: 2022 LiveLaw (Kar) 41

Date of Order: 28th Day Of January 2022

Appearance: Advocate Gangadhar J.M, for petitioner; Advocate G.K. Hiregoudar, a/w Advocate Girija S. Hiremath, for respondent

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