Punjab-Haryana High Court
The Punjab State And Anr. vs Shri Resham Singh, Ex-Constable No. ... on 5 March, 1999
Equivalent citations: (1999)122PLR39
JUDGMENT V.K. Jhanji, J.
1. At the request of learned counsel, the appeal is taken on Board for final disposal.
2. This is defendant's second appeal directed against the judgment and decree of the Courts below whereby on appeal preferred by the plaintiff, judgment and decree of the trial Court has been modified and in consequence thereof, his suit partly decreed.
3. Plaintiff was enrolled as a Police Constable on 21.5.1990. Plaintiff alleged that while undergoing training course in R.T.C., PAP, Jalandhar Cantt. the arm of the plaintiff got fractured. Plaintiff averred that after 'obtaining permission from the Drill Instructor, he proceeded on leave on medical grounds, but was granted one day leave. He further averred that he remained under the treatment of various doctors and the period during which he remained under treatment, was treated as absence from duty and he was ordered to be discharged from service vide order dated 17.9.1991. Plaintiff contended that the order of discharge is null and void and against the principles of natural justice and has been passed as a punishment without following the procedure provided under rule 16.24 of the Punjab Police Rules (hereinafter referred to as the PP Rules). Defendants, upon appearance inter alia pleaded that the plaintiff remained absent without sanction of leave and show-cause notice was served upon him as to why he be not discharged from service under rule 12.21 of PP Rules and after giving him an opportunity of being heard, he was discharged from service. Defendants claimed that the order has been passed in accordance with law.
4. Trial Court decreed the suit, but on appeal preferred by the plaintiff, first appellate Court partly allowed the appeal, thereby modifying the judgment and decree of the trial Court. The operative part of the judgment and decree of first appellate Court reads as under: -
"The suit of the plaintiff/appellant to the extent, it relates to the declaration that the order dated 17.9.1991 is illegal, void and inoperative against his rights and liable to be set aside, is decreed, whereas the suit with regard to the consequential benefits is dismissed. The plaintiff/appellant shall not be "reinstated into service forthwith on account of setting aside the order dated 17.9.1991. He shall be deemed to be continuing under suspension. The competent authority shall hold a regular inquiry under the provisions of Rule 16.24 of the Punjab Police Rules, 1934, and pass a fresh order, within a period of six months, from today. The plaintiff/appellant shall not be entitled to salary and other monetary benefits between the date of discharge and the date of judgment in appeal. As to what treatment should be meted out to the period of absence from duty and the period of suspension shall also be decided, by the competent authority, at the time of passing fresh orders. Decree-sheet be prepared and the file be consigned to the Record Room."
5. Learned counsel appearing on behalf of the defendants contended that the order passed against the plaintiff was under rule 12.21 of PP Rules and being an order of discharge, no regular enquiry was required to be held. Learned counsel further contended that sufficient opportunity was given to the plaintiff but he failed to explain his misconduct and, therefore, he was discharged from service. In answer to these submissions, Mr. H.S. Gill, Senior Advocate, appearing on behalf of the plaintiff has contended that order dated 17.9.1991 passed against the plaintiff is not an order simplicitor but has been passed on the basis of alleged misconduct on his part. He contended that in such a situation, the competent authority was required to hold a regular enquiry under the provisions of Rule 16.24 of the PP Rules and in absence thereof, the first appellate Court has rightly decreed the suit of plaintiff to that extent.
6. After hearing the learned counsel and on going through the record, I am of the view that there is no merit in this appeal. It is well settled law that even in the case of temporary officiating government employee, his service cannot be terminated by way of punishment casting a stigma on him in violation of the provisions of article 311(2) of the Constitution of India.
7. In State of Maharashtra v. Veerappa R. Saboji and Anr., A.I.R. 1980, S.C. 42, it has been held by the Apex Court that where services of temporary or probationer government servant, are terminated and the order discloses, that a stigma is cast on the government servant or that it visits with penal consequences, then plainly the case is one of punishment.
8. In State of Haryana and Anr. v. Jagdish Chander, J.T. 1995(2) S.C. 108, Rule 12.21 of the PP Rules came up for consideration. In the said case, constable was discharged under rule 12.21 and in the order of discharge, the Superintendent of Police recorded that he is unlikely to prove an efficient police officer because he is habitual absentee, negligent to his duties and indisciplined. From this order, the Apex Court held that it is not an order of discharge but on the other hand, the Superintendent of Police considered the record and found him to be habitual absentee, negligent to his duty and indisciplined. The findings of habitual absentee and indiscipline necessarily cast stigma on, his career and there would be an impediment for any future employment. Under these circumstances, it was held that the principles of natural justice do require that he should have been given an opportunity to explain the grounds on which the Superintendent of Police proposed to pass order of discharge.
9. The order passed in the present case shows that the same was passed on the basis of misconduct alleged to have been committed by the plaintiff. It is not an order of discharge simplicitor but it casts a stigma on his competence and affects his future career. English translation of the order passed reads as follows:-
Order "Recruit Constable Rashem Singh No. 80/238, while doing Basic Training at R.T.C./P.A.P, Jalandhar Cantt. was found to be absent from roll call on 5.6.1991 without permission. A report of absence was recorded in the Daily Diary at Serial No. 40 dated 5.6.1991. He reported on duty after remaining absent for three days, vide report No. 36 dated 7.6.1991.
Besides he proceeded on one day sanctioned leave on 11.6.1991 from the R.T.C. and he was due to report back on 12.6.1991 before general roll call, but he did not report in time due to which report of absence was recorded in the Daily Diary at Serial No. 28 dated 12.6.1991 and he, after remaining absent for 36 days, 13 hours and 30 minutes, came back vide report No. 4 dated 19.7.1991. Being a member of the disciplined force, his repeated absence is against the Police Rules. The Commandant, P.R.T.C. has also sent a report regarding his conduct to this office which I have carefully perused and considered and it is recorded therein that he is careless about his duty. He was orally warned to improve by the C.D.I.R.T.C., P.A.P. It has also been mentioned that he is careless about the directions given to him regarding his duties and it is also recorded that he himself absents and during training, he remained absent for five days and again absented from 12.6.1991 onwards and he is not likely to become a good police officer.
In addition, I have also gone through his previous service record and the particulars of his earlier absence are as under:-
1. As per O.B. No. 16/91, period of absence for two days was treated without pay.
2. As per OB No. 91/91, one day absence was treated as without pay.
It is clear from the above, that he is habitual of absenting himself again and again and not fit to become a good police officer.
Due to this absence and keeping in view his previous record of service, he was issued a show cause notice vide No. 505/ST dated 30.7.91 and this notice was sent to him at his home through a special messenger because of his absence, but the said recruit. Constable having not been found at his house, this notice was given to his father Shri Gurjant Singh on 31.7.91 in the presence of Shri Mukhtiar Singh, Sarpanch. One copy of the notice was also received by the recruit Constable himself on 31.7.91 from the office and submitted his reply within the stipulated period and comments on his written reply are as under:-
In his reply in the first para, he has mentioned that during the training period, his arm was fractured and he was under treatment in PAP Hospital, but, there was no improvement and then for showing himself to an expert (Siana), he had requested his Instructor for one day leave which was not allowed. He was given permission for one day and later on he was marked absent. I do not accept this argument of the Recruit Constable because if he had not been sanctioned leave, he should have appeared before the high officers to tell about his difficulties for getting leave. He, however, did not get the leave and intentionally absented and later on made an excuse of getting permission from the Instructor in order to conceal his absence.
In second para of his reply, Recruit Constable Rashem Singh, No. 238, has mentioned about the treatment of his fractured arm from an expert and submission of application by him for leave for ten days and sanction of one day leave and subsequent absence and giving of intimation for extension of leave. In this connection, he had also mentioned that no intimation was conveyed to him for submission of medical certificate by him. I do not agree with this submission of Recruit Constable because as per application for leave, he had requested for five days casual leave on which he was sanctioned one day leave. As regards prayer for extension of leave, his application was received in the office, but, he had not requested for extension of leave. He had written that there was no improvement in the condition of his arm and that he was getting treatment for the same from the Government Hospital, Talwandi Sabo and that he will report for duty when his arm is alright. In this connection, intimation was sent to his house vide this office No. 8673/OSI dated 11.7.91 through special messenger and he was asked that he should get his treatment at Civil Hospital, Jalandhar instead of Government Hospital, Talwandi Sabo. However, since the Recruit Constable Rashem Singh No. 80/238, was not present at his house, this notice was delivered to his father on 15.7.91. Therefore, his submissions in this regard are baseless and without merit. The medical certificates submitted by him are not of Jalandhar Civil Hospital.
In the end, he has submitted in his reply that keeping in view his illness, the period of absence may be treated as leave, but, he has not said anything in his defence. Therefore, it needs no comments.
This Recruit Constable Rashem Singh, No. 80/238 appeared before me in person on 4.9.91 and again on 5.9.91. He was heard at length although at present, he appears to be having medical problem, but his service record is not good. His Training Officers have also given adverse remarks regarding his interest in the work. He is not likely to become a good Police Officer. Recruit Constable Rashem Singh No. 80/238 is discharged from service, under Police Rule 12.21 with effect from 17.9.91 after noon. The period of absence of 36 days 13 hours and 30 minutes, total 40 days is treated without duty.
The order may be registered and issued.
Sd/- Commandant, 80th Battalion, PAP, Jalandhar Cantt.
10. The above mentioned order if viewed in the light of the decision of the Apex Court in State of Haryana v. Jagdish Chancier (supra), it would be clear that it is not an order of discharge simplicitor. The impugned order being stigmatic, should have been passed after holding regular enquiry and giving an opportunity to the plaintiff to prove his defence. It is the conceded case of the parties that neither the memorandum of charges was served upon the plaintiff nor was he given an opportunity to lead evidence in defence. The order thus has rightly been quashed by the first appellate Court.
11. Consequently, no interference is called for in this second appeal. Appeal is dismissed. However, as already directed by the first appellate Court, the defendants shall be at liberty to pass fresh order after holding enquiry against the plaintiff in accordance with law, within six months from the date of furnishing of certified copy of this judgment.