Punjab-Haryana High Court
State Of Punjab And Anr. vs Ex-Constable Jagraj Singh on 4 May, 2004
Equivalent citations: (2004)137PLR514
Author: Jasbir Singh
Bench: Jasbir Singh
JUDGMENT V.K. Bali, J.
1. (4th May, 2004) - This appeal under Clause X of the Letters Patent has been filed against judgment of learned Single Judge recorded in C.W.P. No. 5840 of 1992, dated August 28, 2001 vide which, Ex-Constable Jagraj Singh, the petitioner in the original lis, succeeded in his endeavour to quash order dated 4.5.1991 passed by the Senior Superintendent of Police, Amritsar, terminating his services by way of discharge, applying Rule 12.21 of the Punjab Police Rules, 1937 (for short 'the 1937 Rules').
2. Brief facts of the case, culminating into the filing of the present Letters Patent Appeal, reveal that the petitioner was recruited as a Constable in Punjab Police on 11.11.1989. It has been the case of the petitioner, as made out in the pleadings of the writ petition, that after completing training course, he was put in active duty in the police lines, Amritsar, as well as at other police stations. Before, however, he could complete the period of probation, he was discharged from service under Rule 12.21 of the 1937 Rules as, in the opinion of Senior Superintendent of Police, Amritsar, he was unlikely to prove an efficient police officer It has been the case of the petitioner that, in fact and in reality, the impugned order discharging him from service applying provisions of Rule 12.21 of the 1937 Rules, was on the basis of misconduct and, therefore, such an order could have been passed only after holding a regular departmental enquiry giving him an opportunity to prove his innocence.
3. The matter was contested by the appellant-State primarily on the basis that under Rule 12.21 of the 1937 Rules a Constable can be discharged, at any time, within a period of three years of his enrollment if the Constable is found unlikely to prove an efficient police officer. It was the case of the State that the order passed against the petitioner is innocuous.
4. Learned Single Judge after taking into consideration the contents of paragraph 4 of the written statement to the effect that a secret report from Deputy Superintendent of Police, CID Department, Gurdaspur was received regarding the antecedents of the petitioner, with a reference that the petitioner has very close links with extremists during his education and further that Balwinder Singh, resident of Shahpur, Police Station, Sri Hargobindpur, who was a tailor and at that time was an absconder, used to visit the house of the petitioner and that the relatives of the petitioner were the followers of Shri Bhindrawala and further that integrity of the petitioner had become doubtful and he was not likely to become a good police officer, held by lifting the veil, that the order of discharge shall have to be termed as punitive and, therefore, the same could not be passed without holding a regular departmental enquiry. In holding so, learned Single Judge relied upon a judicial precedent in Prithpal Singh v. State of Punjab and Ors., 2001(1) Service Cases Today 459 wherein it was observed that "Even where an order of discharge looks innocuous, but on close scrutiny, by looking behind the curtain, and if any material exist of misconduct and, which is the foundation of passing of the order of discharge, or such could be reasonably inferred, then it leaves no room of doubt that any consequential order, even if discharge would be construed as stigmatic. Then opportunity has to be given. It is also not in dispute that no opportunity was given to the respondent before passing the impugned order of discharge."
5. Ms. Nirmaljit Kaur, learned Additional Advocate General, Punjab, appearing on behalf of the appellant-State on the basis of a Full Bench decision of this Court in Sher Singh v. State of Haryana and Ors., (1994-1)106 P.L.R. 456 (F.B.) vehemently contends that the judgment of learned Single Judge cannot possibly sustain in view of the diametrically opposite view taken by the Full Bench.
6. We have heard learned counsel representing the parties and examined the records of the case. We find considerable merit in the contention raised by Ms. Niramljit Kaur, learned Additional Advocate General, Punjab. The Hon'ble Full Bench was dealing with the question referred to it by one of us (V.K. Bali, J.) in C.W.P. No. 17637 of 1991. The same reads thus:
"The crucial question that needs adjudication in this case is as to whether there has to be a regular enquiry for discharging a constable under Rule 12.21 of the Punjab Police Rules, 1934 when he has been found unlikely to prove an efficient police officer by the Superintendent of Police at any time within three years of his enrollment if such discharge is on account of some allegations. Before, the view point of the contesting parties is noticed, it requires to be mentioned that petitioner No. 1 was found absent from June 19, 1991 to July 1, 1991 and for yet another period from August 11, 1991 to August 21, 1991. Vide report dated September 11, 1991, Station House Officer, Police Station, Hansi, informed the Superintendent of Police, Hisar that Raj Pal petitioner No. 1, who was posted in Police Station City Hansi, was habitual in remaining absent without any leave or information. He was careless towards his duties given to him and he paid no heed to the duties given by the M.H.C. of the Police Station and will always say that he be marked absent. The details of all the absence of petitioner No. 1 and reports of daily diaries had already been sent to the Superintendent of Police. It was further stated in the report/letter aforesaid that Raj Pal Constable would make lame excuses and was not fit to serve the police department. He recommended action against petitioner No. 1. Once again vide report (Annexure R3), Shiv Ram, ASI, Incharge, Security Branch, Hisar addressed a letter to the Superintendent of Police, Hisar mentioning therein that Constable Raj Pal (petitioner No. 1) was habitual in remaining absent and was seen wandering in Police Stations and Police lines. It was also stated in the report aforesaid that said constable incites others against senior officers and he could even revolt against police department. On the basis of the aforesaid reports, as is positive case of the respondents, petitioner No. 1 was discharged from service by applying Rule 12.21 of the Punjab Police Rules. The position with regard to petitioner No. 2 is also no different. Vide report, (Annexure R2) dated September 11, 1991, Lal Chand, Station House Officer of Police Station, Hansi reported to the Superintendent of Police, Hisar that Kalmi Ram Constable who was posted at Police Station City, Hansi was habitual in remaining absent time and again. He was careless in respect of every duty given to him and he remained absent without any information. It was further mentioned that said constable was deputed on August 27, 1991 to the office of Deputy Superintendent of Police, Hisar to convey immediate correspondence (DAK) but he did not report so far. He was not bothered of being marked absent and he openly challenged the officers that they could do nothing against him. The details of all the absence of this constable as well had been sent to the Superintendent of Police. In the report aforesaid it was recommended that severe action be taken against him. Once again vide report (Annexure R4), Shiv Ram, ASI, Incharge, Security Branch, Hisar informed the Superintendent of Police that Kalmi Ram (petitioner No. 2) was habitual of absenting himself and was being seen wandering time and again in Police Lines, CIA Staff and Police Stations. This constable too would incite others against senior Police officers and could revolt in Police department. Petitioner No. 2 as well, on the basis of the aforesaid reports, was discharged from service by applying Rule 12.21 of the Punjab Police Rules.
Sarv. Shri H.S. Mann and K.G. Chaudhary, learned counsel appearing for the petitioners, on the basis of two judgments of the Supreme Court in Rajinder Kaur v. Punjab State and Anr., 1986(3) S.L.R. 78 and Hardeep Singh v. State of Haryana and Ors., 1988(1) S.L.J. 206 submit that once there are specific allegations against the petitioners, discharge under Rule 12.21 would be violative of Article 311 of the Constitution of India if no regular enquiry was conducted to prove such allegations. In support of their contention aforesaid, learned counsel also rely upon two Division Bench Judgments of this Court in Dinesh Kumar v. State of Haryana, 1992(1) S.L.R. 582 and C. Kaptain Singh v. State of Haryana, in CWP No. 5846 of 1992, decided on July 28, 1992. They also reply upon Single Bench Judgments in Surinder Kumar v. The State of Haryana and Ors., 1993(1) R.S.J. 754, Jai Bhagwan and Anr. v. The State of Haryana and Anr., 1993(2) R.S.J. 286 and Rajinder Singh v. State of Haryana and Ors., 1989(1) S.L.R. 451 and some other judgments as well.
Mr. Monga, learned Deputy Advocate General, Haryana appearing for the respondents, very forcefully contends that all these judgments, referred to above, are distinguishable as also a Full Bench judgment of this Court squarely dealing with the point in issue, was not noticed in any of these judgments.
After hearing learned counsel for the parties, I am of the considered view that this matter requires adjudication by a larger bench. It is, no doubt, true and is also conceded by learned counsel for the parties that the judgment of Full Bench of this Court in Jai Singh, Ex.Constable v. State of Haryana and Ors., 1977(2) S.L.R. 371, was not noticed in any of the judgments rendered by either Division Bench of this Court or Single Bench. I also find considerable force in the point raised by Mr. Monga that there has to be distinction between the allegations which are of general nature and which have nothing to do with a Police Officer in so far his efficiency is concerned and the one which directly reflect on his efficiency as police officer. It will be altogether a different case where the allegations against a police reflect upon his efficiency. Insofar as the judgments rendered by Supreme Court are concerned and which have been noted above, the facts reveal that in one case, i.e., Rajinder Kaur v. State of Haryana and Anr., 1986(3) S.L.R. 78, the allegations against the lady Constable were that she was absent for two days and those two days were spent by her with a Constable. That allegations, if proved, the things would have been different but inasmuch as the discharge was under Rule 12.21 without holding an enquiry, the order of discharge was set aside. The allegation that was made, even if held to be proved against the lady Constable, had nothing to do with her efficiency as Police Constable, even though it might have been enough to discharge her from service but in that case a regular enquiry had to be held. In another case of Hardeep Singh v. State of Haryana and Ors., 1988(1) S.L.J. 206, the allegation against the police Constable was that he was indulging in union activities, although catch words of the said judgment show that it was a case of repeated absence. Insofar, as the judgments of the Supreme Court, as noticed above, are concerned, in my considered view the same are distinguishable. The Division Bench judgments, as noticed above, were recorded only by following the judgments of the Supreme Court. That apart in none of the Division Bench judgments, the decision of the Full Bench of this Court in Jai Singh Ex.Constable v. State of Haryana and Ors., 1977(2) S.L.R. 371 (supra) was considered. It requires to be mentioned that Rule 12.21 of the Punjab Police Rules was held to be intra-vires in the judgment rendered by the Full Bench of this Court. In case on all kind of allegations, whether they pertain with regard to efficiency of a police officer or otherwise, it is to be held that he is unlikely to prove an efficient police officer, the order of discharge would be punitive and violative of Article 311 of the Constitution. It would render the Rule itself to be ultra-vires.
For all what has been said above, I deem it appropriate that this case should be referred to a larger Bench and preferably a Full Bench. Papers of this case be laid before Hon'ble the Chief Justice for constituting a larger bench. Since, on the question aforesaid, there are a number of petitions pending in this Court, Hon'ble the Chief Justice may consider the desirability of listing these cases as early as possible."
7. The Full Bench made no distinction between the allegations which may be of general nature and as such may have nothing to do with a Police Officer insofar as his efficiency is concerned and the one which directly reflect on his efficiency as police officer. To put it differently, no distinction was made where the deficiency or short-comings that may be pointed out, may have direct bearing upon the duties that may be performed by a police officer or for that matter a particular allegation that may have nothing at all to do with the duties that the police officer has to discharge. The question that, however, came to be framed by the Hon'ble Full Bench pertained to distinction between discharge and dismissal on the contention raised on behalf of the employee that every order of termination results in removal from service and such an action must conform to the basic principles of natural justice and the rules prescribing the procedure for taking punitive action in contrast to the stand taken by the employer that it had a right under the contract of employment or the rules governing the service to maintain that when the employee has no right to the post, he can be sacked without ceremony. Relying upon number of judgments of Hon'ble Supreme Court and this Court, the Full Bench in Sher Singh's case (supra) in paragraph 23 observed as follows:-
"Even in a case where the work and conduct of the employee have remained satisfactory for a certain duration of time, but suddenly a complaint is received against him, the employer/has the two-fold choice. The employer can either proceed to terminate the services of the employee in accordance with the terms of appointment and the rules governing the service or if the employer feels that the allegations are serious and the employee does not deserve to be merely discharged from service and should be punished so that he is unable to join any other service, it can proceed in accordance with the Rules to take penal action. In the latter case, if the employer decides to impose a major penalty, the procedure prescribed in Chapter 16 and more particularly Rule 16.24 and the requirements of Article 311 of the Constitution of India have to be complied with. However, if the employer decides not to punish the employee and to merely take action in accordance with the terms of appointment, the procedure as laid down under Rule 16.24 or Article 311 of the Constitution of India is not required to be followed."
8. It was further observed by the Hon'ble Full Bench in paragraph 36 that "It is not necessary to multiply the number of decisions on this point especially in view of the fact that various constitution benches of the Supreme Court have consistently taken the view that when an employee has no right to a post and the competent authority is satisfied that his work is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it can either terminate his service in accordance with the terms of appointment or the rules governing the service or it may decide to make punitive action against him."
9. The conclusion drawn by the Hon'ble Full Bench reads thus:
"In view of the above it is held that:-
(1) A constable can be discharged from service under Rule 12.21 at any time within three years of his enrollment in spite of the fact that there is a specific allegation which may even amount to misconduct against him;
(2) A Superintendent of Police can form his opinion regarding the likelihood or otherwise of a constable making a good police officer not only on the basis of the periodic reports contemplated under Rule 19.5 but also on the basis of any other relevant material; and (3) The provisions of Rule 16.24 and Article 311 shall be attracted only when the punishing authority decides to punish the constable."
10. The conclusion drawn by the Hon'ble Full Bench in paragraph 39(1) clinches the issue and, therefore, the impugned order challenged in the writ petition has to be sustained. Learned counsel representing the respondent, Mr. S.D. Bansal, however, relies upon a Single Bench judgment of this Court in Suresh Kumar v. State of Haryana, 1996(1) S.C.T. 420, wherein, according to the counsel, even after making a reference of the Full Bench in the case of Sher Singh (supra) a different view has been taken. This contention of learned counsel representing the respondent cannot possibly be accepted. While referring to the Full Bench in the case of Sher Singh (Supra) and the conclusions drawn, as reproduced above, learned Single Judge proceeds to hold that "in view of the finding that the impugned orders are not orders of discharge simplicitor but have been passed by way of punishment, it is not necessary to go into other contentions of learned counsel for the petitioners, namely, that the petitioners have been discriminated as against the other persons who have been allowed to continue in service and also that orders have been passed mechanically without any application of mind. It shall remain open to the petitioners to raise the matter with regard to discrimination before the Authorities in case the Authorities intend to hold an enquiry". While dealing with the facts of the case, learned Single Judge reproduced order that was challenged before it in CWP No. 670 of 1992. The same reads thus:-
"That you, Constable Suresh Kumar No. 1038 having been indulging in the activities prejudicial to the maintenance of discipline amongst the members of the Police Force and spreading disaffection amongst the Police Ranks and exhorting them to resort to general disobedience of the orders of the competent authorities. You participated in the procession and unionist activities and also stage dharna in front of the Deputy Commissioner's office-cum-residence on 16.10.1991. You are therefore, unlikely to prove an efficient Police Officer. You are, therefore, discharged from service w.e.f. 6.10.1991 under Rule 12.21, of P.P.R. Vol.I"
11. The order impugned in the case aforesaid was certainly stigmatic and even as per observations made by the Full Bench such an order could not sustain unless a regular departmental enquiry was made. The judgment of learned Single Judge cited by learned counsel representing the respondent is, thus, of no help to the petitioner. Insofar as the present case is concerned, concededly, the order of discharge was innocuous. The same reads thus:
"Constable Jagraj Singh No. 1592/ASR son of Shri Gurnam Singh, R/O Village Balrampur, Police Station Sri Hargobindpur Police District Batala is discharged from service with effect from 15.4.91 as he is not likely to become an efficient Police Officer.
Issue orders in O.B. and all concerned to note for necessary action."
12. An order of the kind, as has been passed in the present case, according to the law laid down by the Full Bench of this Court in the case of Sher Singh (supra), would not necessarily entail a regular departmental enquiry.
13. Finding merit in this appeal, we thus, allow the same by setting aside the judgment of learned Single Judge. 14. Before we may part with this order, we would like to mention that the motion Bench, while admitting the Letters Patent Appeal, had stayed the operation of the order passed by learned Single Judge and, therefore, the petitioner is out of service ever-since his discharge, i.e., 1991.
Sd/- Jasbir Singh, J.