Regular Second Appeal No.2532 of 1994 -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No.2532 of 1994 Date of Decision: December 02, 2010 State of Punjab ---Appellant versus Tek Singh ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Surinder Kapoor, Addl. A.G.Punjab for the appellant *** GURDEV SINGH, J. Tek Singh, respondent-plaintiff, was enrolled as Constable in the Police Department of State of Punjab-appellant No. 1-defendant No. 1 on 15.4.1986. In the year 1987, he was posted in traffic staff, Abohar. Vide office order dated 28.8.1987, he was discharged from service from the date of order itself under Rule 12.21 of the Punjab Police Rules, 1934 (hereinafter referred to as “the Rules”), on the allegation that he was not likely to prove an efficient police officer. He filed suit for declaration to the effect that this order, passed by SSP. Ferozepur, defendant No. 2, was illegal, null and void, unconstitutional, against the rules of natural justice, Regular Second Appeal No.2532 of 1994 -2- the Rules, arbitrary and inoperative inter alia on the following grounds:- 1. The order appears to be innocuous but the real fact behind the same is that FIR No. 88 under Sections 420, 465, 468, 471 and 120-B IPC was registered against him in Police Station Ferozepur Cantt., on the allegation that at the time of enrollment, he produced bogus certificate showing his educational qualification to be Matriculation. The case was still under investigation when that order was passed. No such educational qualification was prescribed as a precondition for appointment as a Constable. Even the appointing authority was not influenced by that certificate at the time of his appointment. 2. The proper procedure was not followed before passing that order. 3. The facts do not make out any case of misconduct. 4. It was essential for the Department to hold enquiry before passing the impugned order. He was not issued any show cause notice before awarding this extreme punishment of discharge which, in fact, amounts to dismissal from service and is penal in nature. The suit of the plaintiff was contested by the defendants. In their written statement they admitted that the plaintiff was so enrolled as a Constable on 15.4.1986 and was posted in traffic staff, Abohar, in 1987, when the impugned order was passed discharging him from service. They denied the other contentions made in the plaint and pleaded that there were Regular Second Appeal No.2532 of 1994 -3- material allegation against the plaintiff, on the basis of which he was validly and lawfully discharged from service. There was no need of any opportunity to be given to him before passing that order. The order is legal, constitutional and has been passed in accordance with the Rules and the principles of natural justice. The suit of the plaintiff is time barred and is not maintainable in the present form and is bad for non-joinder of necessary parties. The plaintiff has no locus standi to file the same. They also challenged the legality and validity of the notice served upon them under Section 80 CPC before filing of the sit. On the pleadings of the parties, following issues were framed by the learned trial court:- 1. Whether the impugned order dated 28.8.1987 passed by the S.S.P. Ferozepur, discharging the plaintiff from service is illegal, null and void. If so, its effect? OPP 2. Whether the plaintiff is entitled to the consequential relief of reinstatement in service, arrears of pay, seniority etc.?OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is not time barred? OPP 5. Whether the notice under Section 80CPC is not legal and valid?OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Relief. Regular Second Appeal No.2532 of 1994 -4- To succeed in the suit, plaintiff examined himself as PW-2 and Gurlabh Singh, Constable PW-1. On the other hand, no evidence was produced by the defendants. After going through the evidence so produced by the plaintiff and hearing learned counsel on his behalf and Government Pleader for the defendants, the learned trial court decided all the issues in favour of the plaintiff and resultantly decreed his suit, for the declaration prayed for as well as for the consequential relief in the form of reinstatement in service with arrears of pay and seniority etc., vide judgment and decree dated 28.9.1991. The defendants preferred first appeal against that judgment and decree, which was dismissed by Additional District Judge, Ferozepur, vide judgment and decree dated 25.3.1994. I have heard counsel for the State. It has been submitted by the State counsel that the findings recorded by the lower courts cannot be sustained as there is complete misinterpretation of Rule 12.21 of the Rules and that is the substantial question of law involved in the present appeal. According to him, no enquiry was required to be held nor any show cause notice was required to be issued to the plaintiff for discharging him from service on the grounds mentioned in that Rule. He also submitted that efficacious remedy of filing the appeal under the Rules, was available to the plaintiff and he could not have filed the suit without resorting to that remedy. For proper appreciation, Rule 12.21 is reproduced below:- “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 enrollment. Regular Second Appeal No.2532 of 1994 -5- There shall be no appeal against an order of discharge under this rule.” A perusal of this Rule makes it clear that the Superintendent of Police at any time, within three years of the enrollment of a Constable, discharge him, if it is found that he is unlikely to prove an efficient police Officer. No doubt, this discretion is unfettered but there must be some material available on the record for reaching at that conclusion. The decision has to be arrived at on the objective analysis of the service record of the concerned constable. If there is no material available on the record to form such an opinion, the order can certainly be quashed on the ground that the decision has been arrived at without any basis. This rule does not confer arbitrary powers on the Superintendent of Police to discharge a Constable, by merely recording a finding to that effect in the absence of any record to support that finding. The departmental file, pertaining to the plaintiff, forms part of the record of the trial court, and the impugned order is contained in that file and the same is Ex. P-1. This file contains the copy of the FIR, so mentioned in the plaint by the plaintiff. This FIR was got registered against him on the ground that the educational qualification certificate, purported to have been issued by the Punjab School Education Board and which was produced by the plaintiff at the time of his enrollment, was found to be forged. It is the case of the plaintiff that after trial he was acquitted in the criminal case, which fact has not been denied by the defendants. In case that FIR is taken into account, the impugned order becomes pragmatic in nature. In that Regular Second Appeal No.2532 of 1994 -6- eventuality an opportunity was to be given to the plaintiff to explain his position before passing that pragmatic order. Concurrent findings of fact were recorded by both the courts below against the defendants. There is no merit in the argument of the State counsel that the plaintiff could not have filed suit without first resorting to the remedy by ay of appeal. The Rule itself lays down that no appeal lies against such an order. There is no ground for setting aside those findings and no substantial question of law arises in the present appeal. There is no merit in this appeal and the same is hereby dismissed. (GURDEV SINGH) JUDGE December 02, 2010 PARAMJIT