Punjab-Haryana High Court
The Deputy Inspector General vs Manjit Kaur And Others on 1 October, 2012
Bench: A.K.Sikri, Rakesh Kumar Jain
LPA No.7 of 2012 [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.7 of 2012
Date of decision:01.10.2012
The Deputy Inspector General, Railway Protection Force,
Baroda House, New Delhi and others ...Appellants
Vs.
Manjit Kaur and others ...Respondents
CORAM: Hon'ble the Chief Justice A.K.Sikri
Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Nitin Kumar, Advocate,
for the appellants.
Mr. P.S.Goraya, Advocate,
for the respondents.
*****
Rakesh Kumar Jain, J.
Roor Singh (deceased) was a Constable in the Railway Protection Force (RPF) at Ferozepur. He was arrested in a case registered vide FIR No.66 under Section 120/121 of the Indian Railways Act, 1989 and placed under suspension w.e.f. 05.07.1985 vide order dated 10.07.1985. During the period of suspension, he absented from RPF Line, Ferozepur from 11.11.1985 to 09.12.1985 on his own, without intimation to his superiors. He was charge sheeted as per Rules on 09.01.1986 and served with a notice dated 29.11.1985 for reporting on duty, which he joined on 10.12.1985. In the regular inquiry, charges were proved against him and order of removal from service was passed on 08.09.1986. Roor Singh LPA No.7 of 2012 [2] ***** (deceased) challenged the order of removal from service by way of appeal. Since it was not being decided in time, therefore, he preferred CWP No.3916 of 1988 which was disposed of on 11.05.1988 with the direction to decide the appeal expeditiously. Consequently, the appeal was decided/dismissed on 03.09.1988 which lead to the filing of CWP No.7762 of 1989 impugning both the orders of removal from service dated 08.09.1986 and order dated 03.09.1988 by which his appeal was dismissed.
Roor Singh died on 31.03.1990 during the pendency of the writ petition. Legal representatives of Roor Singh (deceased) filed CM No.2481 of 2010 which was allowed on 29.04.2010. Thereafter the writ petition was allowed on 06.09.2011 holding the order of removal from service to be illegal. It was further held that Roor Singh shall be paid suspension allowance upto the maximum period that is permissible under Rules and for the succeeding period, he shall be treated to be in service till the date of his death or his year of superannuation, whichever is earlier and all the emoluments payable to him, if he had been in service, should be calculated and given including the terminal benefits which were accrued to his estate. The respondents were directed to calculate the amount and pay it to Roor Singh's heirs within 8 weeks from the date of receipt of certified copy of the order with interest @ 6% from the date when the emoluments fell due till the date of payment.
Aggrieved against this order, present appeal has been preferred in which counsel for the appellants has made two fold submissions, firstly, that in view of paras 1 and 4 of the RPF Regulation, 1966 [for short "Regulation"], the deceased was required to stay in the RPF Line LPA No.7 of 2012 [3] ***** throughout the period of suspension and since he absented without intimation, therefore, the order of removal from service, after due inquiry, cannot be faulted with and secondly, the writ petition had already abated as Roor Singh (deceased) expired on 31.03.1990 and the application was filed for bringing the legal representatives on record on 15.02.2010.
In support of his contentions, learned counsel for the appellants has relied upon the judgments of the Supreme Court in the cases of State of Punjab and others v. Charanjit Singh, 2003 AIR (SC) 4984, Mahendra Prasad Singh @ Mahendra Singh v. State of Bihar and others, 2011 AIR (SC) 1790 and State of Punjab v. Dharam Singh, 1997 AIR (SC) 1905.
In support of his submission that the writ petition had abated, he has relied upon decisions of this Court in the case of Smt. Goman Wanti v. Darshan Singh and another, 2006(2) PLR 356 and Kartar Singh (Dead) through LRs v. Jaswant Singh (Dead) through LRs, 2005 (3) PLR 78.
On the other hand, learned counsel for the respondents has argued that during the period of suspension there cannot be any compulsion for the suspended employee for doing any work. In this regard, he has relied upon the decisions in the cases of Ramesh Chander Chug, Assistant Engineer (Civil) v. The Haryana State Electricity Board, 1986(3) SLR 1, Chittaranjan Ghose v. I.G. of Police W.B. and others, 1979(2) SLR 194 and Zonal Manager, Food Corporation of India and others v. Khaleel Ahmed Siddiqui, 1982(2) SLR 779.
LPA No.7 of 2012 [4]
***** We have heard counsel for the parties and perused the record. The facts are not much in dispute. Para 4 of the Regulation reads as under:-
"4. When a member of the Force is placed under suspension, he should not normally leave headquarters without permission of the Asstt. Security Officer concerned. Head Rakshaks, Senior Rakshaks & Rakshaks are required to live, during the period of their suspension, in the Lines, provided there is one at the place of their posting. They should be allowed to leave the lines to consult their legal advisers or to prepare defence. If there is no lines and it is necessary to shift him from the place of his posting, the Assistant Security Officer will fix the headquarters for the member under suspension, who will not leave it without permission of the Assistant Security Officer concerned. Ordinarily during suspension, no leave should be granted unless warranted by special circumstances."
In terms of the aforesaid regulation, Roor Singh (deceased) was not supposed to have left the headquarters without permission. However, he absconded from RPF Line from 11.11.1985 to 09.12.1985 and returned only on 10.12.1985 after a notice dated 29.11.1985 was served upon him. He was charge sheeted for the aforesaid lapse and after a thorough inquiry, order of removal from service has been passed.
The question is thus whether the impugned order dated LPA No.7 of 2012 [5] ***** 06.09.2011 could be maintained as per judgments relied upon by the respondents wherein it has been held that as the suspended employee is not to do any work, therefore, he cannot be compelled to stay at a particular place.
Before proceeding further, it would be suffice to say that none of the precedents relied upon by counsel for the respondents contain a provision akin to the one involved in the present case. In Ramesh Chander Chug's case (supra), the petitioner, was an employee of the Haryana State Electricity Board, directed to report for duty daily at the headquarters to enable himself to the grant of subsistence allowance during the period of suspension. In Chittaranjan Ghose's case (supra), the petitioner was an Assistant Sub Inspector in the West Bengal Police. When he was placed under suspension, he was directed to attend usual roll calls during the period under suspension at Police Lines, Sealdah. Notice was issued that if a person, during suspension, do not attend the roll calls, his subsistence allowance will be kept "hold over". In Zonal Manager, Food Corporation of India and others' case (supra), the employee was put under suspension and ordered not to leave the headquarters without prior permission of the Senior Regional Manager in charge. In Regulation 66 of the Staff Regulations, 1971, which was relied upon by the Food Corporation of India, there was no such provision. However, in the case of State of Punjab and others v. Charanjit Singh (supra) relied upon by counsel for the appellants, reference has been made to Rule 16.21 of the Punjab Police Rules, 1934 which is pari materia with Regulation 1 of Chapter XVI of the LPA No.7 of 2012 [6] ***** Regulation which read thus:-
Rule 16.21 of the Punjab Para 1 of the Regulation
Police Rules
16.21 - Status and treatment 1. Suspension. - The
of Officer under suspension - conditions of suspension are
(1) A police officer shall not specified in Rule 40. Under by reason of being suspended Section 16 of the Act, a from office cease to be a member does not, by reason police officer. of being suspended from During the term of such Office, cease to be a member suspension the powers, of the Force. During the functions and privileges terms of such suspension, the vested in him as a police power, functions and officer shall be in abeyance, privileges vested in him as a but he shall continue subject member are in abeyance, but to the same responsibilities, he continues subject to the discipline and penalties and to same responsibilities the same authorities, as if he discipline and penalties and to had not been suspended. the same authorities as if he had not been suspended.
It has been held by the Supreme Court that even during the period of suspension, the police officer is required to attend the roll calls and parades and be available to the authorities but it does not mean that in case is he not being paid subsistence allowance, he can absent himself from duty.
We are, thus, of the considered opinion that a conjoint reading of paras 1 and 4 of Regulation clearly provides that during the period of suspension, the suspended employee is supposed to be present at the headquarters of his place of posting and cannot leave the station without due permission.
Insofar as the second submission made by learned counsel for the appellants about abatement of the writ petition is concerned, it is pertinent to mention that the writ petition was filed in the year 1989 by LPA No.7 of 2012 [7] ***** Roor Singh who unfortunately passed away on 31.03.1990. The appellants filed an application bearing CM No.24805 of 2008 for dismissal of the writ petition on the ground that it has been abated as the legal representatives of Roor Singh have not been impleaded within the period of limitation. The said application was not pressed by the appellants, rather the widow of Roor Singh filed CM No.2481 of 2010 for impleading the legal representatives of Roor Singh. The said application was allowed on 29.04.2010 with the following order:
"The petitioner is died and the application is filed to implead the legal representatives of the petitioner.
Application is allowed.
Legal representatives are added as parties subject to all just exceptions and the registry shall carry out the amendment to the memo of parties."
Counsel for the appellants has submitted that in case of death of the sole plaintiff/petitioner, the application for impleadment of legal heirs can be filed within 90 days from the date of death as per Article 120 of the Limitation Act, 1963 and according to Order 22 Rule 3(2) of the CPC and as the application is not filed within the period of limitation, the writ petition should have been dismissed as abated. He has also submitted that even the application for dismissal of the writ petition having been abated was filed prior to the application filed by the respondents for impleading legal representatives of Roor Singh but that was not decided by the learned Single Judge rather the application for impleading the legal representatives was allowed subject to all just exceptions, which has now been raised in the LPA No.7 of 2012 [8] ***** present appeal.
Counsel for the respondents, however, has submitted that the appellants cannot take the plea of the abatement of the writ petition as the application for impleadment has already been allowed and that the abatement, if any, in substance is deemed to have been set aside without even there being any separate prayer in that regard. In support of his submission, he has relied upon a decision of the Supreme Court in the case of Mithailal Dalsangar Singh and Ors. v. Annabai Devram Kini and Ors., 2003(10) SCC 691.
It is further argued that the widow of Roor Singh, who is a rustic and illiterate lady, was not even aware of the fact that in case of death of her husband, during the pendency of the writ petition, his legal representatives were required to be brought on record. In this regard, he has relied upon a decision of the Supreme Court in the case of Ram Sumiran v. D.D.C. and others, 1985 AIR (SC) 606. It is also submitted that since the appellants have not pressed the application for dismissal of the writ petition having been abated nor did they argue it before the learned Single Judge at the time when the application for impleading the legal representatives was allowed, therefore, the application i.e. CM No.24805 of 2008 is deemed to have been dismissed as not pressed. In this regard, he has relied upon a decision of this Court in the case of State of Punjab and another v. Rajinder Jain and another, CR No.6956 of 2009, decided on 04.03.2011.
In reply, counsel for the appellants has submitted that the plea of writ petition having been abated due to non-impleadment of the legal LPA No.7 of 2012 [9] ***** representatives of the deceased Roor Singh within the period of limitation is available to them despite the fact that the application for legal representatives was allowed because it was allowed subject to all just exceptions.
We have heard learned counsel for the parties and perused the record in this regard.
After hearing learned counsel for the parties, we have found that a very interesting issue has cropped up for adjudication in which we would like to express our opinion with regard to term "subject to all just exceptions" which is generally being used and expressed while deciding such like applications. The term "subject to all just exceptions" in the decision of an application for impleadment of legal representatives is used by the Courts when the non-applicant is not sure about the status of the persons who are being impleaded as legal representatives and an opportunity is reserved by the Court for him to file an appropriate application for modification of that order in case of discovery of any fact which is found to be contrary to the one which is pleaded by the applicant in the said application but the term "subject to all just exceptions" is not to be exploited by the non-applicant who is present in Court and has contested the application for impleadment of legal representatives if he had knowledge of any defect in the application filed by the applicant. Like in the present case, the appellants had already filed CM No.24805 of 2008 for dismissal of the writ petition on the ground of having been abated for non-impleadment of legal heirs of deceased Roor Singh within the period of limitation in terms of Article 120 of the Limitation Act, 1963. This application could have LPA No.7 of 2012 [ 10 ] ***** easily been pressed at the time when the order dated 29.04.2010 was passed by the learned Single Judge while allowing the application bearing CM No.2481 of 2010 by which legal representatives of Roor Singh have been impleaded but for the reasons best known to the appellants, the said application bearing CM No.24805 of 2008 was neither pressed nor it is argued before the learned Single Judge that the application for impleading legal representatives has become time barred and the legal representatives could not be brought on record as the writ petition itself has already been abated. It is also matter of record that no endeavour was made by the appellants in moving an application before the learned Single Judge for modification of the order dated 29.04.2010. It is a matter of concern that the parties to the lis on either side, who keeps on filing various applications from time to time but fail to press them during the course of hearing, after the final order passed by the Court, makes a complaint to the Higher Court about the non-disposal of the said application and advantage is taken either by seeking remand of the main case or by way of finding a fault with the main judgment itself. In this background, in State of Punjab and another's case (supra), a question was framed by this Court "as to whether an application not argued/pressed at the time of disposal/decision of the main case remains alive and could be revived by a separate application or it is deemed to have been declined/rejected as not pressed". The question was answered in affirmative and it was held that such an application cannot be revived by another application. Thus, it is the duty of the counsel appearing on behalf of the parties to bring to the notice of the Court all the LPA No.7 of 2012 [ 11 ] ***** applications on which they want adjudication and if an application is not pressed during the course of hearing and remain alive on record, then it is deemed to have been disposed of as not pressed. Otherwise, the matter should be brought to the notice of the Court concerned immediately for taking a decision afresh on the said application.
Insofar as the judgments relied upon by counsel for the appellants in Smt. Goman Wanti's case (supra) and in Kartar Singh (Dead) through LRs' case (supra) are concerned, in Smt. Goman Wanti's case (supra) she died during the pendency of the appeal in this Court and when an application was filed for bringing her legal representatives on record, an objection was raised about the abatement of the appeal on which an application for condonation of abatement was filed but the said application for impleadment of legal representatives was dismissed on the basis of observations made by the Supreme Court in Mithailal Dalsangar Singh's case (supra) that abatement of suit for failure to move an application for bringing the LRs on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for.
Similarly, in Kartar Singh (Dead) through LRs' case (supra), application for bringing legal representatives on record of Kartar Singh was filed during the pendency of the second appeal. Thereafter, another application for seeking condonation of delay was filed but the non- applicant in that case filed an application under Order 22 Rule 3(2) CPC for dismissing the appeal having been abated. Thus, the application for LPA No.7 of 2012 [ 12 ] ***** bringing on record the legal representatives on record was not allowed in the said case on the ground that the abatement is automatic as held by the Supreme Court in Mithailal Dalsangar Singh's case (supra).
There is no quarrel with the view expressed in the aforesaid judgments by the learned Single Judge but the facts of those cases are altogether different because in the present case, the application for impleadment of legal representatives was allowed by the learned Single Judge and it has been held in Mithailal Dalsangar Singh's case (supra) that "a prayer for bringing the LRs on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic approach in such cases is not called for".
As we have observed in the earlier part of the order that the appellants cannot take the plea that the application for impleadment of legal representatives was allowed, subject to all just exceptions because the disposal of the application subject to all just exceptions was pertaining to discovery of a new fact after the order is passed and not relating to the fact which is already in the knowledge of the appellants which could have been pressed at the time when the order allowing the application for impleadment of legal representatives was passed specially when the application under Order 22 Rule 3(2) of CPC was already pending, which too was not even pressed at that time.
For the reasons recorded here-in-above, the second plea of the LPA No.7 of 2012 [ 13 ] ***** appellants with regard to abatement of the writ petition is hereby rejected. However, in view of the first plea that the appellants was required to be present in station during the period of his suspension in terms of paras 1 and 4 of the Regulations, no fault can be found with the order of punishment having been passed. Consequently, the appeal is hereby allowed and the impugned order is set aside.
(A.K.Sikri) (Rakesh Kumar Jain)
Chief Justice Judge
01.10.2012
vinod*