Punjab-Haryana High Court
Mahabir Singh(Since Deceased) Through ... vs State Of Haryana & Others on 7 September, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No.6281 of 1994 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.6281 of 1994
Date of decision:07.09.2012
Mahabir Singh(since deceased) through his LRs .....Petitioner
Versus
State of Haryana & others .....Respondents
CORAM : HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Kushagra Mahajan, Advocate, for
Mr.Amit Jain, Advocate, for the petitioner,
Mr.Saurabh Mohunta, DAG, Haryana.
*****
G.S.SANDHAWALIA J. (Oral)
1. The present writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari/mandamus for declaring the order of discharge dated 23.04.1992 passed under Rule 12.21 of the Punjab Police Rules, 1934 (hereinafter to be referred to as the 'Rules') as applicable to the State of Haryana on the ground that the order of discharge was punitive in nature and illegal. Further prayer for reinstatement and for grant of consequential benefits of service was made.
2. The pleaded case of the petitioner who is now represented through his legal representatives, is that he was enlisted as a Constable in the 2nd Battalion, H.A.P. Madhuban on 02.11.1991 and was deputed for basic recruit course at Police Training College, Madhuban on 04.11.1991. During the course, he proceeded on 4 days leave and during that period, became seriously ill and had to be admitted in Kapil Hospital, Yamuna Nagar on 08.12.1991 where he remained under treatment upto 15.12.1991. On being declared medically fit on 15.12.1991 by the concerned Doctor, CWP No.6281 of 1994 2 the petitioner reported for duty and on the basis of the medical certificate, 6 days casual leave on special report was sanctioned. Since the petitioner had not recovered fully from illness, he again made a request for 3 days casual leave but was granted 2 days leave by the Officer-in-charge and accordingly, the petitioner proceeded on leave on 28.02.1992 and was due to join on 02.03.1992. On the night of 01.03.1992, the condition of the petitioner again became serious and he was rushed to General Hospital, Chandigarh where he remained under treatment upto 11.03.1992 and was further advised to rest for another week. On the basis of medical certificate, 10 days casual leave was sanctioned by the Director, Police Training College, Madhuban. The petitioner had also consulted the Medical Officer, H.A.P. Hospital, Madhuban who referred the petitioner to Medical Officer, General Hospital, Karnal and on the recommendation of the Director, Police Training College, Madhuban, the Principal Medical Officer, General Hospital, Karnal accorded approval for referring the petitioner to the Specialist at P.G.I., Chandigarh for consultation and treatment vide his letter dated 16.03.1992 where the petitioner remained under treatment till 28.03.1992. The Director of Health Services, Chandigarh issued medical fitness certificate to the petitioner on 29.04.1992. On 10.04.1992, without affording any opportunity to the petitioner, the Director, Police Training College, Madhuban repatriated the petitioner to Commandant, 2nd Battalion, H.A.P., Madhuban who discharged the petitioner under Rule 12.21 of the Rules vide impugned order dated 23.04.1992. It was accordingly pleaded that the order was not an order of discharge simplicitor but of alleged misconduct and was illegal and unsustainable. The appeal filed by the petitioner before the Deputy Inspector General of Police, H.A.P., Madhuban CWP No.6281 of 1994 3 was dismissed on 11.09.1992 and another appeal filed before the Inspector General of Police, Madhuban was dismissed on 29.03.1994 without affording any opportunity of hearing to the petitioner. Accordingly, the said orders were challenged on the ground that the petitioner was never given any opportunity of hearing and that the orders were violative of Articles 14 & 16 of the Constitution of India.
3. Respondents, in their written statement, placed reliance upon the Full Bench judgment of this Court in Sher Singh Vs. State of Haryana & others 1994 (1) PLR 456 to contend that the appointment of a Constable is initially for 3 years and during this period, he is under surveillance and he has no right to the post. In case the Superintendent of Police finds him not fit to be an efficient Police Officer, he could be discharged and he was rightly discharged from service. It was pleaded that the petitioner absented from duty from 09.12.1991 to 15.12.1991, 02.03.1991 to 12.03.1992 and 29.03.1992 onwards without any cause and without obtaining any permission. It was pleaded that no leave was allowed to the petitioner after 29.02.1992 and that he had no interest in training as he remained in training for 146 days and out of the said period, he remained either on leave or absented for a period of 76 days and, therefore, he was not fit to serve in the Police Department. It was further pleaded that he had absented himself from duty without any intimation and no medical certificate from the authorised Doctor was produced by the petitioner before the authorities and the petitioner was discharged from P.G.I. on 28.03.1992 but he did not resume his duties till his discharge from service. Accordingly, the order of discharge was defended on the ground that no irregularity was there in discharging the petitioner from service. It was further pleaded that no CWP No.6281 of 1994 4 appeal lay against the order of discharge in view of the language of the statute and, therefore, there was no violation of any provision of the Constitution of India.
4. Counsel for the petitioner has submitted that a perusal of the order dated 23.04.1992 would show that the same is stigmatic in nature and, therefore, the said order was liable to be set aside since it was passed at the back of the petitioner without any proper enquiry and adversely affected the petitioner. Accordingly, he placed reliance upon the judgment of the Hon'ble Apex Court passed in the case of Major Singh Vs. State of Punjab & others (2000) 9 SCC 473 to contend that the order was punitive in nature and was liable to be set aside.
5. On the other hand, counsel for the State submitted that the petitioner was discharged from service under Rule 12.21 of the Rules and on the ground that the petitioner had absented from training and, therefore, the Commandant, 2nd Battalion, H.A.P., Madhuban had taken into consideration the factors that the petitioner was not liable to become an efficient Police Officer and had rightly discharged him during his probation period, i.e., within 3 years of his enrolment and, therefore, the order was not stigmatic in nature.
6. The submission made by the counsel for the petitioner cannot be accepted in view of the settled position of law. A Full Bench of this Court in Sher Singh (supra) had, after taking into consideration the relevant case law, came to the conclusion that a Constable could be discharged from service under Rule 12.21 of the Rules within 3 years from his enrolment in spite of specific allegation which may even amount to misconduct against him. The order of discharge would not be a punishment as such since the CWP No.6281 of 1994 5 Superintendent of Police can form a opinion regarding the making of a good Police Officer on the basis of the relevant material. The order of discharge, in the present case, reads as under:
" ORDER (Discharge under PPR 12.21) No. Dated Rect.Const.Mahabir Singh No.2/454 was recruited as a Constable on 2.11.91 and was deputed for basic recruit course at PTC Madhuban on 4.11.91. He absented himself from the training on following occasions:-
He was found absent from General Roll Call on 4.12.91 and his absence was recorded vide DDE No.50. He reported back on training on 15.11.91(sic 15.12.91) after remaining wilfully absent for 5 days 11 hours and 30 minutes.
He again absented himself wilfully from the training on 2.3.91(2.3.92) and his absence was recorded vide DDE No.42 dated 2.3.92. He reported back on training on 12.3.92 after remaining absent for a period of 12 days 5 hours and 30 minutes.
The delinquent official again absented himself from training on 29.3.92 and still has not reported on duty.
It has been observed that he has been taking no interest in the training. He oftenly proceeded on leave and where leave was not sanctioned to him in public interest, he tried to procure Medical Test. In the event of his failure to procure Medical rest, he absented from training wilfully. His record shows that he remained in training for 146 days till 29.3.92 out of which he remained in training for 146 days till 29.3.92 out of which he remained either on medical leave on absent for a period of 76 days. Thus the conduct of delinquent recruit remained very unsatisfactory during the training. All these acts of the delinquent official proves that he is not fit to serve in the police department, because he is not fit to serve in the police department, because he has no interest to learn the police working with such a casual attitude even during the basic training. All these acts constitute a grave mis-conduct, indiscipline on his part which can not be tolerated in the police department. I, therefore, order his discharge under 12.21 with immediate effect. CWP No.6281 of 1994 6
Sd/-
Commandant, 2nd Bn. HAP, Madhuban"
7. Thus, the petitioner remained on training for 146 days from 09.12.1991 upto 29.03.1992 till his discharge. Out of the said period, he remained on leave for 76 days. Though justification was sought to be made that he was on medical leave and that he was also admitted in the P.G.I., Chandigarh but it is also on record that he absented from duty from 29.03.1992 and did not report to the authorities till the order or discharge was passed. Reference was made to the medical fitness certificate issued to the petitioner by Dr.B.R.Verma which has, however, not been placed on record. All these factors only go on to show that the authorities had came to the conclusion that the petitioner was not liable to become an efficient Police Officer and, therefore, was rightly discharged from service. The Full Bench of this Court in the case of Sher Singh (supra) has held that the Superintendent of Police has to form an opinion regarding a Constable and while answering the question referred to it regarding the discharge of a Constable within 3 years of his enrolment, it was held as under:
"39. 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 enrolment 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."CWP No.6281 of 1994 7
8. The Hon'ble Apex Court in State of Punjab & others Vs. Balbir Singh 2004 AIR (SC) 4655 also, while examining Rule 12.21 in a case where the Constable had consumed liquor and misbehaved with a lady Constable held that the nature of enquiry was preliminary and not a full scale formal enquiry to determine the guilt on the basis of discharge and not misconduct. Accordingly, it was held that the order was not punitive in nature and the enquiry was held to determine the suitability of the Constable within the meaning of Rule 12.21 of the Rules.
9. Reliance of the petitioner on Major Singh's case (supra) also does not support him as perusal of para No.4 of the said judgment goes on to show that in that case, an adverse order of 5 pages was against the said Constable. The Hon'ble Apex Court had noticed the adverse part of the comments against the said Constable and thus, came to the conclusion that it was stigmatic in nature. The said portion reads as under:
"4. Having heard learned counsel for the parties, in our view, it is impossible on the facts of this case to sustain the impugned order of the High Court. The reason is obvious. A mere look at the termination order shows that aspersions regarding the conduct of the appellant have been cast in the order. Not only that but the order which consists of five pages read as a whole shows that the appellant is completely stigmatised. We may quote relevant extracts from the said impugned order of termination. In the first para it is stated that having considered the conduct and the work of the appellant it is mentioned that his knowledge of law and police rule is much less. He remains loose and weak on his duty. He is in the habit of remaining absent from his duty and in this connection his in-charge has warned him so many times. No special thing came to mind about his good character..... He is of violent type and confronting his companions. Then a list mentioning his earlier service record and punishments imposed on him is given. Three instances where censure punishment was CWP No.6281 of 1994 8 imposed on him are mentioned. Thereafter, a detailed narration is made about his unsatisfactory work and then in the sixth para, referring to the appellant's own stand before the authorities, it is mentioned that in the opinion of the authority passing the order the appellant could not control himself and had made hooliganism after consuming liquor in the barracks. In the penultimate paragraph, it is mentioned that in the details given above, it is proved that he is not fit to become a good police officer and he failed to submit a sound ground in his defence by appearing before him in person thus keeping him for more time in the Department is not in the interest of Department as well as of the nation (public) thus he dismissed Constable Major Singh No.80/173 under Rule 12.21 on 14.2.92 afternoon from government service."
10. It was, subsequently, in State of Punjab & others Vs. Sukhwinder Singh AIR 2005 SC 2960 a three Judge Bench of the Hon'ble Supreme Court, while examining Rule 12.21, approved the reasoning given by the Full Bench in the case of Sher Singh (supra) and noticed that a Constable, for the first 3 years, has no right to the post and his service can be terminated as it is basically a period of probation whereof the master observes the work of the probationer and makes up his mind as to whether he is to keep the employee in service. Relevant paragraph of the judgment reads as under:
"18. It must be borne in mind that no employee whether a probationer or temporary will be discharged or reverted, arbitrarily, without any rhyme or reason. Where a superior officer, in order to satisfy himself whether the employee concerned should be continued in service or not make inquiries for this purpose, it would be wrong to hold that the inquiry which was held, was really intended for the purpose of imposing punishment. If in every case where some kind of fact finding inquiry is made, wherein the employee is either given an opportunity to explain or the inquiry is held behind his back, it is held that the order of discharge or termination from service is punitive in nature, even a bona fide attempt CWP No.6281 of 1994 9 by the superior officer to decide whether the employee concerned should be retained in service or not would run the risk of being dubbed as an order of punishment. The decision to discharge a probationer during the period of probation or the order to terminate the service of a temporary employee is taken by the appointing authority or administrative heads of various departments, who are not judicially trained people. The superior authorities of the departments have to take work from an employee and they are the best people to judge whether an employee should be continued in service and made a permanent employee or not having regard to his performance, conduct and overall suitability for the job. As mentioned earlier a probationer is on test and a temporary employee has no right to the post. If mere holding of an inquiry to ascertain the relevant facts for arriving at a decision on objective considerations whether to continue the employee in service or to make him permanent is treated as an inquiry "for the purpose of imposing punishment" and an order of discharge or termination of service as a result thereof "punitive in character", the fundamental difference between a probationer or a temporary employee and a permanent employee would be completely obliterated, which would be wholly wrong."
Accordingly, the appeal of the State was allowed in the said case and it was held that the High Court was in error in holding that the respondent's absence from duty was the foundation of the order which necessitated inquiry.
11. Counsel for the petitioner has also submitted that the orders in appeal passed by the authorities were non-speaking. Rule 12.21 of the Rules reads as under:
"12.21. Discharge of Inefficients. - 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 enrolment. There shall be no appeal against an order of discharge under this rule."
CWP No.6281 of 1994 10
12. In view of the specific bar, the appeal itself was not maintainable before the competent authority. A Division Bench of this Court in Mukesh Kumar Vs. State of Punjab & others 2009 (2) RSJ 438, in such circumstances, has held that an appeal is not maintainable when there is a discharge under Rule 12.21 of the Rules.
13. Accordingly, keeping in view the said cumulative facts, the writ petition is dismissed in view of the above settled principles of law.
07.09.2012 (G.S.SANDHAWALIA) sailesh JUDGECM No.12778-CWP of 2012