Punjab-Haryana High Court
Constable Hansraj vs State Of Haryana And Others on 16 September, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.2934 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.2934 of 2010 (O&M)
Date of Decision: September 16.09.2013.
Constable Hansraj
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Sanjiv Gupta, Advocate for the petitioner.
Mr. Sunil Nehra, Sr. DAG, Haryana.
Notes: 1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The question framed by this Court on 23.11.2012 in the interim order for answer is as to what would be the consequences of failure to pass the Recruit Basic Training Course, which is necessary for retention in service and confirmation of a constable, in the total chances prescribed by rule when such constable is retained in service beyond the period of three years prescribed in rule 12.21 of the Punjab Police Rules, 1934 as applicable to the State of Haryana; and what action could be taken if an order of discharge is not passed within the time frame stipulated in rule 12.21. The further question which arises is whether non-passing of the qualifying examination/tests prescribed in the syllabus of the Recruit Basic Training Course (RBTC) in the prescribed chances amounts to misconduct justifying dismissal from service on ground that such a failed constable is unlikely to make an efficient police officer but after three years provided as outer limit under rule 12.21 have long run out. Khan Md. Firoz 2013.10.29 13:02 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.2934 of 2010 (O&M) 2 The broad facts necessary for deciding the case have been mentioned in the interim order which are as follows:-
The petitioner was recruited as a temporary Constable under the sports quota on 20.08.2001 and was deputed to the Recruit Basic Training Course in Batch No.57. The period of training was from 1.09.2001 to 3.06.2002. Despite availing the maximum chances given to clear the examinations the petitioner failed to clear the Recruit Basic Training Course itself but the petitioner was continued in service for two years thereafter. The maximum period of probation prescribed in rule 12.21 of Punjab Police Rules, 1934 is three years to form opinion for continuation in service. There is little doubt that in case of failure to pass Recruit Basic Training Course within a period and chances prescribed the petitioner could have been discharged under rule 12.21 of Punjab Police Rules, 1934. The petitioner was, however, continued in service as a temporary Constable. For reason of not passing the examinations on the syllabus of the Recruit Basic Training Course a departmental inquiry was initiated again the petitioner by serving upon him a charge-sheet dated 10.04.2007 on the allegations that since he had failed to clear Recruit Basic Training Course despite being given maximum three chances he was unlikely to prove an efficient police officer. Rule 12.21 reads as follows:-
"Discharge of Inefficient:- 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 enrollment. There shall be no appeal against an order of discharge under this rule."
The inquiry was conducted and concluded and the report was submitted to the Disciplinary Authority finding the charge proven. A show cause notice was then issued to the petitioner on 30.08.2007, whereby he was held guilty of the charges levelled against him and he was asked to show cause as to Khan Md. Firoz 2013.10.29 13:02 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.2934 of 2010 (O&M) 3 why a penalty of 'Dismissal from Police Force' be not inflicted upon him.
Aggrieved by the show cause notice the petitioner approached this Court challenging the show cause notice. The writ petition was disposed of on 17.09.2007 with the direction to the petitioner to submit a reply to the show cause within one week. In case, any such reply is filed, then the same shall be considered by the competent authority in accordance with law before passing any final order. It was also ordered that entire service record of the petitioner will be given due consideration. He filed reply. It did not find favour of the disciplinary authority.
The petitioner was dismissed from service on 16.11.2007. His appeal before the Inspector General of Police, Haryana Armed Police, Madhuban was dismissed on 14.01.2008 and the revision petition before the Director General of Police, Haryana was rejected on 29.01.2009. The Petitioner moved the State Government against the order but that did not also find any favour and his request for reinstatement was rejected on 3.12.2009. Against the order of dismissal the petitioner has approached this Court invoking article 226 of the Constitution of India.
As a matter of fact, the petitioner by then had rendered five years of service from 2002 to 2007. The petitioner says that he was not communicated any information by the respondents in writing that he had failed in RBTC or of its consequences during service and till 2007. He pleads that he had earned 13 good entries in his service record by then and was conferred commendation certificates with cash awards of Rs.100/- for doing conspicuously good work, honestly, diligently, efficiently, with great zeal and devotion to duty for maintenance of peace and law and order as recorded in OB No.162/2005. He was given a commendation certificate of Class-III with a cash award of Rs.50/- vide OB No.48/2007 by the Commandant, 4th Battalion, Haryana Armed Police, Madhuban, Karnal for good performance while on duty during the year 2007. He Khan Md. Firoz 2013.10.29 13:02 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.2934 of 2010 (O&M) 4 was awarded another commendation certification. The Inspector General, Haryana, Armed Police, Madhuban himself conferred on him a Class-I certificate with cash amount of Rs.150/- on 10.04.2007 in recognition of his services.
He submits that in 2006, he had approached the authorities to give him one more chance to appear in the examination as a special case but that did not find favour with the superior authorities. He pleads that Constable Jitender Singh, Vijay Singh, Paramjeet Singh etc. also failed to appear in the same examination but they were giving various chances up to five to appear in the RBTC and ultimately they were retained in service. In order to lend support to his case for another chance he has placed reliance on a order dated 22.05.1996 passed in the case of Constable Baij Nath. He claimed similar treatment.
The learned counsel for the petitioner submits that after serving for five years beyond the maximum period of three years prescribed in rule 12.21 the petitioner could not have been dismissed on the sole ground of non-passing the examinations of RBTC which cannot be construed even remotely as misconduct justifying a full fledged dress rehearsal of a regular inquiry. Holding an inquiry in such a case was farcical and unjustified and was a sheer wastage of time which could have been better spent pursuing other pressing needs of the department. Resort of rule 12.21 could not have been had beyond the period of three years which was sufficient time for the Police Department to make up its mind for continued utility in the police force. In any case the petitioner could have been discharged for failure to pass test but not dismissed from service to carry the stigma forever. Inefficiency in rule 12.21 cannot be linked with incompetence, lack of will or knowledge in passing the RBTC course. The Commandant, IInd Battalion, Haryana Armed Police, Madhuban in his dismissal order dated 16.11.2007 has cited paragraph No. 5.2 of the Standing Order governing the functioning of the Haryana Police Academy. It has been Khan Md. Firoz 2013.10.29 13:02 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.2934 of 2010 (O&M) 5 prescribed therein that any candidate who fails for the second time in any training course shall not be given any additional chance to appear in any re- examination and shall be returned to his/her parent unit for appropriate action under Punjab Police Rules of probation. Paragraph No.5.2 are clearly instructions which cannot override rule 12.21 which provides for discharge from service within three years for inefficiency of a person not likely to make an efficient Police Officer.
Be that as it may, the foundation of the dismissal order appears actually to lie elsewhere for which there was no charge laid. This was that the entry of the petitioner itself in service under the sports quota was fraudulent. This is found in the impugned order which to much surprise reads as under:-
"It is also mentioned that the defaulter was recruited as Constable under Sports Quota, but he does not have requisite sports achievements as enumerated in the notification issued by the Director General of Police, Haryana, at the time of recruitment under Sports Quota. As such, his appointment was not in proper way of selection and he got recruited himself on invalid certificates. For his misconduct, a regular departmental enquiry has already been ordered against him which is pending".
If the petitioner entered service under Sports Quota based on invalid documents then that may alone justify dismissal. It is stated that pending departmental inquiry on this score the petitioner has been dismissed to meet the ends of natural justice.
It is difficult to say how natural justice has entered into the decision making process in a case built around failure to pass the RBTC. However, if the motive of dismissal is to truncate the regular departmental inquiry into the nature of entry to service, the petitioner, a temporary Constable Khan Md. Firoz 2013.10.29 13:02 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.2934 of 2010 (O&M) 6 has been left with stigma attaching to him till he lives. If the impugned order is based on such reasoning it would be difficult to sustain the order since it is stigmatic in nature, which situation perhaps could have been avoided if the result of dismissal could be reached de hors introduction of extraneous matter other than the charge laid of failure to pass the examination. However, at the same time, passing of the RBTC itself cannot be discounted or brushed aside as the examination is designed to test a temporary constable's knowledge of the Evidence Act, IPC, Code of Criminal Procedure, the Punjab Police Rules etc. which were formative in discharge of duties in the police service in times to come. A simpliciter discharge order may have been sufficient to meet the ends of the RBTC failure. I can have no doubt that the passing of RBTC is a pre- condition for deployment of constable on general duty on permanent basis.
The petitioner's case built on parity of treatment with other recruit constables mentioned in the petition who were given extra chances has been explained in the written statement filed by the department and not much can be said on that question with any definiteness. There may however not be enough indication to the contrary in the instances cited by the petitioner and specially with respect to ex-constable Baij Nath since his request was accepted by the DGP, Haryana subject to passing of the remaining examination which may have resulted as a fall out of this Court's order disposing of Baij Nath's CWP NO. 14834 of 1993 against the order of discharge permitting him to move a mercy petition before the competent authority for relief. But there was no direction of this Court that the mercy petition if filed may be allowed or decided in any particular manner.
The cases of Constable Jatinder Singh, Vijay Singh and Paramjit Singh have not been explained for want of complete information with respect to them for want of relevant record which could not be traced in department record and thus respondents are unable to answer the question of parity raised qua them. Khan Md. Firoz 2013.10.29 13:02 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.2934 of 2010 (O&M) 7 There are also cases of some other constables which have been explained away for reason that the final examination could not be taken by some of them after qualifying the five outdoor subjects, namely, Weapon Training, Drill, Field Craft, Crowd Control and Miscellaneous for reasons of illness etc. The question which arises for consideration is whether any relief is lawfully admissible to the petitioner as prayed for. I have no doubt that other than the issue raised in the impugned order as to the false entry of the petitioner in service via sports quota, the petitioner could not have been dismissed from service for failure to pass the examination/s//test/s. He could either have been discharged from service or could have been reverted to his parent unit for it to take appropriate action under the rules of probation or he could possibly be given another special chance to appear in the examination of RBTC mostly for the reason that the department retained him in service for two years beyond the three years prescribed under rule 12.21 for no fault of his other than failure to pass RBTC. This could be dispensed as last and final chance. Or he could have been converted to a Special Police Officer or adjusted on some other ministerial post if rules and qualifications would permit.
Looking to his five years spent in service during which he earned commendation certificates and awards, for valuable services rendered to the Police Department as certified by senior officers some allowance deserves to be given on account of it. No other misconduct has been imputed other than the separately pending regular inquiry on the issue of his entry into service in the sports quota. However, no final order has been passed in that inquiry which has been left in limbo following the dismissal. Be that as it may, it would not be for this Court to express any opinion thereon. In case his entry into service was proved fraudulent no relief can be granted to the petitioner whatsoever. But that question would depend only on a positive finding recorded after giving a fair chance to the petitioner to explain his sports certificates relied upon to gain entry Khan Md. Firoz 2013.10.29 13:02 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.2934 of 2010 (O&M) 8 into service. If his entry into service was bad then the question of conversion to a Special Police Officer (SPO) or to any other post also would not be justified as that would be putting premium on misconduct of fraudulent entry to the uniformed force.
I have given my thoughtful consideration on all the issues raised before me as argued by Mr. Sanjiv Gupta, learned counsel appearing for the petitioner and Mr. Sunil Nehra, learned Sr. DAG for the State in defence of the impugned orders.
I dare say that I find no quick fix answers to the rather vexed questions arising for consideration and determination in this case in view of the rule position which shed little light where a constable is continued in service for two years beyond the three prescribed under rule 12.21 for discharge. Therefore, equity may enter the field of decision making under article 226 of the Constitution. There is a 'moral dimension' to it when articles 14, 16 are involved. The frontiers of jurisdiction of this Court may require to be extended to secure the ends of justice when no clear legal provision provides an answer to fit the facts of the case or of the relief claimed or lawfully available. This moral dimension in decision making has been succinctly stated in M. Nagaraj v. Union of India, (2006) 8 SCC 212 (240) though on a different canvas when the Constitution Bench of the Supreme Court observed:
"Constitutional adjudication is like no other decision making. There is a moral dimension to every major Constitutional case; the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities, and because of the good sense of the Judges when interpreting it. It it that informed freedom of action of the Judges that helps to preserve and protect our basic document of governance"
Khan Md. Firoz 2013.10.29 13:02 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.2934 of 2010 (O&M) 9 Quite apart from that, at least one thing appears to be certain is that the dismissal order is founded more or less on the dominating negative presence of the alleged illegal entry of the petitioner in service under the sports quota which looks as it is the prime mover and motive of adverse action taken. Therefore, the impugned order of dismissal, the appellate order and the order passed in revision do not strictly appear to be legally sustainable and therefore, they deserve to be set aside. They are accordingly set aside.
The result of the setting aside of the dismissal order would, however, not entitle the petitioner to automatic reinstatement to service or back salary. The respondents would take up the second charge sheet on which departmental proceedings were pending on the date of dismissal and to complete them within reasonable time say four months from the date of receipt of certified copy of this order. The petitioner would remain under deemed suspension till conclusion of the inquiry, his fate hanging on the result thereof. In case the petitioner is found innocent of the charge then the respondents may consider putting the petitioner to the next RBTC examination/test as a special case by providing him one last opportunity to clear the examination or instead to consider the case of the petitioner as a Special Police Officer or by adjustment on some other ministerial post in case qualifications and rules permit or past precedent, if any, justifies or perhaps by creating a new precedent consistent with efficiency of administration, exigencies of service and public interest. These may be hybrid solutions but equitable considerations may demand such thinking looking to past experience gained for five years of service, time, effort and money spent on training, commendation certificates awarded which all may not go waste, his failure to pass the RBTC examinations notwithstanding. Insofar as failure to pass the examinations is concerned I feel almost certain that it may never amount to misconduct meriting severe penalty of dismissal from service which affects future employment under the State and in the private sector as Khan Md. Firoz 2013.10.29 13:02 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.2934 of 2010 (O&M) 10 well. To that extent the impugned orders are clearly in excess of jurisdiction and in abuse of power to dismiss. Alternatively, the respondent department may consider converting dismissal to discharge simpliciter leaving the petitioner free to reorganize his future career without the burden of past baggage.
With this the petition is partly allowed with the directions aforesaid but without any order as to costs.
16.09.2013 (RAJIV NARAIN RAINA)
Manoj Bhutani/MFK JUDGE
Khan Md. Firoz
2013.10.29 13:02
I attest to the accuracy and integrity
of this document
punjab and haryana high court
chandigarh