Punjab-Haryana High Court
The Punjab State Through The Collector vs Harjinder Singh on 21 October, 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 874 of 1987
Date of Order: October 21, 2009
The Punjab State through the Collector, Ferozepur
...Appellant
Versus
Harjinder Singh
....Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
Present: Mr. Rajesh Garg, Addl. AG, Punjab,
Ms. Sudeepti Sharma, DAG, Punjab,
for the appellant.
Mr. Nikhil Chopra, Advocate,
for the respondent.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the
Digest?
M.M. KUMAR, J.
The only substantive question of law raised in this appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the 'Code') is "Whether an order of discharge in respect of a probationer police constable under Rule 12.21 of the Punjab Police Rules, 1934 (for brevity, 'the Rules) is liable to be set aside for want of regular departmental enquiry contemplated by Rule 16.24(IX) of the Rules". The aforesaid question has been considered by Hon'ble the Supreme Court in the context of same rules, facts and circumstances in the cases of State of Punjab v. Balbir Singh, (2004) 11 SCC 743; State of Punjab v. Sukhwinder Singh, (2005) R.S.A. No. 874 of 1987 2 5 SCC 569; State of Punjab v. Avtar Singh, (2008) 7 SCC 405 and State of Punjab v. Rajesh Kumar, (2006) 12 SCC 418. In Sukhwinder Singh's case (supra), Rajesh Kumar's case (supra) and Avtar Singh's case (supra) the view taken by a Full Bench of this Court in Sher Singh v. State of Haryana, 1994(2) SLR 100, has been approved. It has been held that an order discharging a probationer constable cannot be set aside merely on the ground that no enquiry has been held. In para 8 of the judgment in Rajesh Kumar's case (supra) their Lordships have observed as under:-
"8. The Full Bench of the High Court of Punjab and Haryana has held in Sher Singh v. State of Haryana, (1994) 2 SLR 100 (P&H)(FB) that a constable can be discharged from service under Rule 12.21 of the Punjab Police Rules, 1934 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. It was further held by the Full Bench that a Superintendent of Police can form his opinion on 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. In view of the above decision, the constable can be discharged from service even if there is specific allegation which may amount to misconduct against him."
2. Similar view has been taken in Sukhwinder Singh's case (supra). In para 7 of the judgment following opinion has been expressed:-
R.S.A. No. 874 of 1987 3
"7. A Full Bench of Punjab and Haryana High Court in Sher Singh vs. State of Haryana and others 1994 (1) PLR 456 (FB), has examined the content and scope of Rules 12.21, 19.3 and 19.5 of the Rules in considerable detail. It has been held in that case that the effect of the Rules is that for a period of three years a constable is under surveillance. He is being watched and is kept in close supervision. He has no right to the post and his services are terminable at any time during this period of three years. He can secure his position in the service only if he convinces the Superintendent of Police that he is likely to prove an efficient police officer. The Full Bench has further held that the Rules contained the necessary guidelines for the Superintendent of Police, on the basis of which, he has to form an opinion regarding a constable. If on a consideration of the relevant material, the Superintendent of Police finds that a particular constable is not active, disciplined, self-reliant, punctual, sober, courteous or straight-forward or that he does possess the knowledge or the technical details of the work required of him, he can reasonably form an opinion that he is not likely to prove an efficient police officer. In such a situation the Superintendent of Police can invoke his power under Rule 12.21 and can discharge the constable from the force. We are in agreement with the view taken by the Full Bench of the High Court. In fact, this view is in consonance with the decision of this Court R.S.A. No. 874 of 1987 4 rendered in Supdt. of Police v. Dwarka Das, (1979) 3 SCC 789 where it was observed that if Rules 12.21(3) and 12.21 are read together, it will appear that the maximum period of probation in the case of a police officer of the rank of constable is three years, for the Superintendent of Police concerned has the power to discharge him within that period. It was also held that the power of discharge cannot be exercised under Rule 12.21 after the expiry of the period of three years and consequentially if it is proposed to deal with an inefficient police officer after the expiry of that period, it is necessary to do so in accordance with Chapter XVI of the Rules, which makes provisions for the imposition of various punishments including dismissal from the police force. No simple order of discharge under Rule 12.21 can be passed after the expiry of the period of three years for that will attract Article 311 of the Constitution."
3. In the light of the preface of the statement of law the facts of the present case may first be examined which have lead to the filing of the instant appeal. The defendant-State of Punjab, has challenged the judgment and decree passed by the learned lower Appellate Court, dated 22.11.1986, allowing the appeal filed by the plaintiff-respondent by reversing the judgment and decree dated 14.12.1985 passed by the learned Trial Court vide which suit for declaration filed by the plaintiff-respondent was dismissed.
4. The plaintiff-respondent joined service as a Constable in the Punjab Police on 20.2.1980 (F.N.). On 28.3.1982, the Senior R.S.A. No. 874 of 1987 5 Superintendent of Police, Ferozepur passed an order discharging the plaintiff-respondent from service by invoking the provisions of Rule 12.21 of the Rules on the ground that he was unlikely to prove a good police officer. Challenging the discharge order dated 28.3.1982, the plaintiff-respondent filed a suit for declaration. The defendant- appellant contested the suit asserting that proper legal procedure was adopted before passing the impugned discharge order. The following issues were framed by the trial Court:
"1. Whether the plaintiff is entitled to the declaration prayed for? OPP.
2. Whether the suit is bad for want of a valid and legal notice? OPD.
3. Relief."
5. The trial Court after discussing the evidence brought on record and by referring to Rule 12.21 of the Rules returned the finding that the validity of order could not be challenged in any manner because the plaintiff-respondent was discharged on the ground of inefficiency and he had worked for less than three years in the department at the time of passing of discharge order. Consequently, the trial Court dismissed the suit with costs, vide judgment dated 14.12.1985.
6. The plaintiff-respondent then filed an appeal before the lower Appellate Court. After noticing the aforementioned factual position, the lower Appellate Court proceeded to discuss the Ex. P.1- service file of the plaintiff-respondent. The relevant portion of paras 5 and 6 of the observations/findings recorded by the lower Appellate Court, being relevant are reproduced as under:-
R.S.A. No. 874 of 1987 6
"5. Harjinder Singh plaintiff appeared as P.W.2 and has stated that there was no adverse entry ever has been communicated to him throughout his service and there is no rebuttal to this effect and P.W.1 has placed on record Ex. P.1 service file of the plaintiff. The learned counsel for the appellant has taken me through the service file Exh. P.1. There is no adverse entry or any report against the plaintiff till 8.3.1982 i.e. D.R (D.D.R?) recorded by the A.M.H.C in which it has been alleged that Harjinder Singh has stated in the presence of Mehal Singh Constable that he has relations with his sister. As such there was quarrel between Mehal Singh and Harjinder Singh in which other constables intervened and the matter was settled. There was also allegations that he has informed F.C.I people regarding nakabandi in case F.I.R No. 62, dated 22.2.1982 under Sections 379/411/408/465 I.P.C. As such the A.M.H.C made a prayer that he should be transferred before departmental action is taken against the plaintiff-appellant. There is a letter dated 9.3.1982 to the same substance by S.I. Bichhu Ram to Deputy Superintendent of Police, Fazilka which was forwarded to the Senior Superintendent of Police, Ferozepur by the D.S.P vide endorsement dated 9.3.1982. There is further endorsement on the file "in my view he is not likely to become good police officer, S.S.P may like to consider his case for discharge from service dated 11.3.1982." As such it is apparent that the action has R.S.A. No. 874 of 1987 7 been taken on the basis of D.D.R dated 8.3.1982 in which serious allegation regarding character amounting to stigma has been made against the plaintiff-appellant and shelter under Rule 12.21 of the Punjab Police Rules has been taken by the police department just to avoid regular enquiry. Though the order of dismissal is really made on basis of misconduct alleged in D.D.R dated 8.3.1982. No other service record has been taken into consideration while passing the order of dismissal under Rule 12.21 of Punjab Police Rules. No charge sheet has been framed against the appellant-plaintiff. No enquiry was held and he was not given opportunity to defend the allegations made against him by the A.M.H.C in D.D.R dated 8.3.1982. The impugned order is merely a camouflage for dismissal on the ground of misconduct alleged in the D.D.R dated 8.3.1982 and no other matter has been taken into consideration, while passing the above said order. No proper procedure has been followed......
6. From the discussion above, it is apparent that the order of Senior Superintendent of Police, Ferozepur dated 28.3.1982 is passed solely on the basis of D.D.R dated 8.3.1982 and without taking into consideration of previous record of the plaintiff-appellant and as such is merely a camouflage for order of dismissal for misconduct. As such the appeal of the appellant-plaintiff is accepted and the suit of the plaintiff for declaration to R.S.A. No. 874 of 1987 8 the effect that the order dated 28.3.1982 passed by the Senior Superintendent of Police, Ferozepore by virtue of which the plaintiff was discharged from service, is illegal, wrong, wanton, cryptic, capricious, without jurisdiction, against the terms and conditions of employment and against the Punjab Police Rules and against the procedure, precedent and therefore, null and void and the plaintiff continues to be in the service of the Punjab State on the same emoluments and benefits admissible to him from time to time is decree with costs in favour of the plaintiff-appellant and against the defendant-respondent. Decree sheet be prepared accordingly and the file of appeal be consigned to the record room. Lower court record be returned."
7. Against the judgment and decree passed by the lower Appellate Court the defendant-State of Punjab has preferred the instant appeal. An application under Order XLI Rule 5 read with Section 151 CPC for stay was also filed along with the appeal. However, the said application was dismissed vide order dated 26.10.1987.
8. During the course of hearing a specific query was put to the learned State counsel as to whether the plaintiff-respondent has been granted the benefit of the impugned judgment passed by the lower Appellate Court since no stay was granted by this Court. Accordingly, the learned State counsel has placed on record report of the Assistant Civil Suit Clerk, office of the Senior Superintendent of Police, Ferozepur, dated 6.10.2009 along with a letter dated R.S.A. No. 874 of 1987 9 5.10.2009, which are taken on record as Mark 'A'. A perusal of para 6 the said report shows that the plaintiff-respondent was reinstated in service on 28.8.1990 and all arrears of back wages were also given to him in pursuance of directions issued by the Executing Court on his Execution Application. It has further been mentioned that the plaintiff-respondent is still serving in the Police Department, Punjab.
9. I have heard learned counsel for the parties and perused the record with their able assistance. The controversy in the present case revolves around Rule 12.21 of the Rules, which reads thus:
"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."
10. It has already been noticed above that Rule 12.21 of the Rules has not only been upheld but the order passed by the punishing authority discharging the Constable has also been found to be lawful on the rationale that the object of holding any preliminary inquiry was limited to find out whether the Constable was likely to prove as an efficient police officer. When the facts of the present case are examined, the aforesaid principles are applicable in all fore. The extracted para from the judgment of the lower Appellate Court shows that the Deputy Superintendent of Police vide endorsement dated 9.3.1982 had recommended that in his opinion the plaintiff- respondent Constable was not likely to become good police officer and the appointing authority-S.S.P. may consider his case for discharge from service. Therefore, the lower Appellate Court is not R.S.A. No. 874 of 1987 10 right in holding that a regular departmental inquiry on the basis of D.D.R. dated 8.3.1982 levelling allegation concerning character of the plaintiff-respondent Constable amounted to stigma. The aforesaid D.D.R. cannot be considered as foundation of the order of discharge and the order cannot be dubbed as an order of dismissal. Therefore, the view taken by the lower Appellate Court is liable to be set aside and that of the trial Court is liable to be restored.
11. The question then is what relief could be granted to the plaintiff-respondent. According to the report submitted by the appellant department, the plaintiff-respondent was reinstated in service on 28.8.1990 and all arrears of back wages have been paid to him. He is still continuing in service. The decree passed by the lower Appellate Court dated 22.11.1986 stand implemented. Therefore, it may not be possible at this stage to set aside the decree which stand executed because a person who has continued in service for about 20 years after passing of the judgment and decree and the stay was declined by this Court, cannot be put to a situation which would entail the result of discharging him from service after such a long time. I answer the question of law in favour of the defendant- appellant, yet, the appeal is dismissed as the decree passed by the lower Appellate Court stand executed.
(M.M. KUMAR)
October 21, 2009 JUDGE
Pkapoor