Punjab-Haryana High Court
Kuldeep Singh Constable vs State Of Haryana And Others on 26 April, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 7600 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 7600 of 2012
Date of Decision : April 26, 2012
Kuldeep Singh Constable
.... PETITIONER
Vs.
State of Haryana and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. Hemen Aggarwal, Advocate,
for the petitioner.
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has approached this Court impugning order dated 08.02.2007, vide which the petitioner was discharged under Rule 12.21 of Punjab Police Rules, 1934 and also order dated 03.05.2007 (Annexure P-4) passed by the Inspector General, Haryana Armed Police, Madhuban, vide which his appeal against the order of his discharge has been rejected on the ground that the order of discharge is punitive in nature as the same is based upon his absence from duty which is a misconduct under the Punjab Police CWP No. 7600 of 2012 2 Rules and for taking punitive action, departmental action should have been initiated against the petitioner, which the respondents have not resorted to. On this basis, counsel for the petitioner contends that the impugned orders cannot sustain and deserve to be set aside.
I have considered the submissions made by the counsel for the petitioner and with his assistance, have gone through the records of the case.
The contention of the petitioner that the order of discharge is based upon his absence from duty which would be a misconduct and, therefore, the order of discharge although appears to be simpliciter but is in fact a punishment imposed upon him, cannot be accepted. In a similar matter (CWP No. 4694 of 2010 titled as Harish Kumar vs. State of Haryana and others decided on 27.03.2012) this Court has held as follows:-
" Facts as stated by the counsel for the petitioner are not in dispute. The only question which needs to be considered and decided is whether the impugned order dated 21.11.2006 (Annexure P-4) passed by the Commandant 2nd Battalion, Haryana Armed Police, Madhuban is punitive in nature or is an order passed in accordance with Rule 12.21 of the Rules?
The contention of the counsel for the petitioner that the order of discharge is not simpliciter in nature and has been cloaked in such a language which although does not reflect any stigma on the career of the petitioner but is CWP No. 7600 of 2012 3 based upon his absence from duty as is apparent from the show cause notice dated 23.10.2006 (Annexure P-2) and, therefore, passing of such an order would be violative of the principles of natural justice as the petitioner has not been given an ample opportunity to prove his stand before the Appointing Authority cannot be accepted for the simple reason that show cause notice itself is required to contain the reasons on the basis of which a prima facie opinion has been formed by the Appointing Authority for taking action against an employee. If no reasons are assigned therein, the employee would not come to know as to which aspect he has to respond to, which may then be violative of the principles of natural justice. To fulfil the mandate of this universally accepted principle of law, the Appointing Authority is required to indicate the basic facts and the reasons for forming a particular opinion which may be provisional. The intent is to comply with the principle of audi alteram partem and to avoid miscarriage of justice. If that be the intention for issuance of a show cause notice, the same cannot be said to be violative of the principles of natural justice or violative of Article 311 of the Constitution. If the Statutory Rules governing the service provide with a power to discharge a Constable who in the CWP No. 7600 of 2012 4 opinion of the Competent Authority is found unlikely to prove an efficient police officer at any time within three years of the enrolment, the same cannot be said to be vitiated merely because reasons have been given in the show cause notice calling upon the employee to put-forth his explanation. Perusal of the impugned order would show that it is a simple order of discharge as required under Rule 12.21 of the Rules.
It need to be referred here that in a short span of his service career of two and a half years, petitioner had remained absent on five occasions, the details of which are as follows:-
Sr.No. Absence date Absent Days Hrs. Decision from Mins.
04.07.04 to 10.07.04 GRC 06 06 06 days sanctioned
1 30 as LWP
25.07.04 TO GRC 04 20 04 days sanctioned
30.07.04 30 as EL & 20.30 Hrs
sanctioned as
2 LWP.
15.06.05 TO GRC 02 14 03 days sanctioned
17.06.05 30 as CL & awarded
05 days
3 Punishment Drill.
17.06.05 to 22.06.05 GRC 05 -- 03 days sanctioned
-- as C.L. & awarded
5 days Punishment
4 Drill.
27.08.06 to 31.08.06 GRC 03 16 04 days
-- Sanctioned as
5 LWP.
CWP No. 7600 of 2012 5
This is apart from the last spell of absence without intimation when according to him, he was admitted in hospital. Police is a disciplined force and a member of this force is required to maintain discipline at all costs which would include following of the rules and regulations strictly and punctuality is one of the traits of discipline.
Absence without information or permission cannot be tolerated in a disciplined force. First three years of enrolment as a Constable is a period in which the compatibility of a person to fit into the system of the force is under observation. His traits are watched and are under constant scrutiny so as to assess his capability to prove himself to be worthy of being a member of the disciplined police force. It is keeping in view this aim that powers have been conferred on the Competent Authority to assess a constable to form an opinion with regard to his likelihood to prove an efficient police officer. If in the opinion of the Competent Authority a constable is found unlikely to prove an efficient police officer, he may be discharged at any time within three years of his enrolment."
Similar is the position in the present case. A perusal of the show cause notice would show that the details of the absence CWP No. 7600 of 2012 6 have been specified therein, which are 15 in number. Details of the absence are as follows:-
"S.No Absence Absent Day Hrs. Mins. Decision Date from
1. 15.5.05 to GRC - 12 45 01 day 16.05.05 sanctioned as CL
2. 04.06.05 to Evening - 01 35 File 4.6.05 Parole
3. 27.06.05 to Evening - - 30 File 27.6.05 parole 09.10.05 to Morning - 04 - File 09.10.05 parole
4.
5. 11.11.05 to Morning - 02 30 File 11.11.05 parole
6. 04.02.06 to Evening 04 03 35 04 days as 08.02.06 parole Sanctioned as LWP
7. 15.04.06 to Evening - 15 25 Awarded 16.04.06 parole 02 days PD & 01 days Sanctioned as CL.
8. 22.06.06 to EL 03 23 26.06.06 30
9. 07.08.06 to GRC 09 22 30 10 days 17.08.06 sanctioned as LWP
10. 18.08.06 GRC 25 23 - 26 days to 13.09.06 sanctioned as LWP
11. 14.09.06 to Duty 14 - 01 14 days
28.09.06 sanctioned as LWP CWP No. 7600 of 2012 7 "S.No Absence Absent Day Hrs. Mins. Decision Date from
12. 3.10.06 to GRC 12 22 - 13 days 16.10.2006 sanctioned as LWP
13. 18.11.06 to Fatigue 01 23 - 2 days 19.11.06 sanctioned as LWP
14. 27.11.06 to Ref/APTS 04 14 - 5 days 2.12.06 sanctioned as LWP
15. 24.12.06 to Ref/APTS 17 12 - Present 11.01.07 case"
In the light of the above, the contention of the counsel for the petitioner cannot be accepted. Order dated 08.02.2007 (Annexure P-2) is an order of discharge simpliciter, which is in consonance with the Rule 12.21 of the Punjab Police Rules, 1934, and does fulfil the requirement of law.
That apart, petitioner has approached this Court after a period of more than five years, which delay has also not been explained by the petitioner. On this ground as well, the present writ petition deserves dismissal.
Ordered accordingly.
(AUGUSTINE GEORGE MASIH )
April 26, 2012 JUDGE
pj