Punjab-Haryana High Court
The State Of Punjab And Another vs Pardeep Kumar on 1 March, 2012
RSA No.2316 of 1998 -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
RSA No.2316 of 1998
Date of Decision : 1.3.2012
The State of Punjab and another
..Appellants.
Vs.
Pardeep Kumar
..Respondent.
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI
Present : Mr. S.S.Gill, DAG Punjab for the appellants.
None for the respondent.
***
1.Whether Reports of local papers may be allowed to see the judgment?|
2.To be referred to the Reports or not? | Yes
3.Whether the judgment should be reported in the Digest? |
AJAY TEWARI J. (Oral)
Even on 28.2.2012 none had appeared for respondent despite the fact that name of the learned counsel had appeared in the list. Resultantly this appeal is being taken up for consideration in the absence of learned counsel for the respondent.
This appeal has been filed against the concurrent judgments of the Courts below whereby the suit of the respondent challenging the termination under Rule 12.21 of the Punjab Police Rules was decreed. The respondent was appointed as a Constable and during training, remained absent on two occasions, firstly, from 11.9.1990 to 9.12.1990 and then again from 10.12.90 to 1.2.1991 i.e. for 54 days. After four days, he again went RSA No.2316 of 1998 -2- absent from 5.2.1991 till 23.4.1991. It would be seen that from 11.9.1990 to 23.4.1991 during training he remained absent except for 4 days in between. Consequent to this, order dated 3.8.1992 was passed.
Both the Courts while placing reliance on a show cause notice issued to him in respect of the absence held that since the termination order was preceded by the show cause notice an enquiry should have been held against him and consequently set aside the orders. This is how the State is in appeal in this Court.
When State filed the appeal, no question of law was proposed. However, learned Deputy Advocate General, Punjab has proposed the following question of law:
(i)Whether the Courts below was justified in treating the order of discharge as a stigmatic order.
He has relied upon Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others (1999) 3 SCC 60 where Hon'ble the Supreme Court held as follows:
"This Court in that connection referred to the principles laid down by Krishna Iyer, J. in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha. As to "foundation", it was said by Krishna Iyer, J. as follows:
termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law otherwise. Whether, in such a case, the grounds are recorded in different proceedings from the formal RSA No.2316 of 1998 -3- order, does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non injurious terminology is used."
and as to motive:
"54. On the contrary, even if there is suspicion of misconduct , the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismsisal but termination simpliciter, if no injurious record of reasons or punitive cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge."
As to motive, one other example is the case of State of Punjab v. Sukh Raj Bahadur where a charge-memo for a regular enquiry was served, reply given and at that stage itself, the proceedings were dropped and a simple termination order was issued. It was held, the order of simple termination was not founded on any findings as to misconduct. In that case, this court referred to A.G. Benjamin v. Union of India where a charge-memo was issued, explanation was received, an enquiry officer was also appointed but before the enquiry could be RSA No.2316 of 1998 -4- completed, the proceedings were dropped and a simple order of termination was passed. The reason for dropping the proceedings was that "departmental proceedings" will take a much longer time and we are not sure whether after going through all the foundation, we will be able to deal with the accused in the way he deserves". The termination was upheld."
If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would not be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
He has also placed reliance upon a judgment reported in Union of India and others Vs. Mahaveer C. Singhvi 2010 (8) SCC 220 wherein also, Hon'ble the Supreme Court approved the decision in Dipti Prakash Banerjee (supra). As regards the point of show cause notice, learned RSA No.2316 of 1998 -5- Deputy Advocate General has argued that in view of the conduct of the respondent, there was no reason to have issued him the show cause notice but the disregard which the respondent had or the discipline of the force can further be gauged by the fact that he never bothered to file reply thereto.
In my opinion, the arguments of learned Deputy Advocate General cannot be brushed aside.
Consequently, the appeal is allowed. Decree of both the Courts below is set aside and the suit of the respondent is dismissed. No order as to costs.
( Ajay Tewari ) Judge 1.3.2012 Meenu