CWP No. 10958 of 1993 & CWP No. 11108 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 10958 of 1993 Date of Decision : 17.5.2010 Satbir Singh .....Petitioner Vs. State of Haryana and others ....Respondents And CWP No. 11108 of 1993 Vijay Kumar .....Petitioner Vs. State of Haryana and others ....Respondents ****** CORAM : HON'BLE MR. JUSTICE PERMOD KOHLI. Present: Mr. R.K.Malik, Senior Advocate with Mr. Jatinder Beniwal, Advocate for the petitioners. Mr. R.S. Kundu, Addl. A.G. Haryana. PERMOD KOHLI, J. This order shall dispose of CWP No. 10958 of 1993 and CWP No.11108 of 1993 as both are arising out of the same FIR. Petitioners were enrolled as Constables in November 1991. On 16.9.1992, an FIR No.221, under Sections 363,376 and 34 of IPC, came to be registered at Police Station Kaithal. Petitioners were also accused in the said FIR. Petitioners were arrested and placed under suspension on 18.9.1992. While in jail they were served with a show cause notice dated 17.9.1992 and even without their reply being received, they were discharged under Rule 12.21 of the Punjab Police Rules vide impugned order dated CWP No. 10958 of 1993 & CWP No. 11108 of 1993 2 30.9.1992. This order is under challenge in the persent petition. The petitioners were acquitted of the charge vide judgment dated 4.1.1993, copy whereof is placed on record as Annexure P-4. On their acquittal from the criminal case, the petitioners made a representation dated 4.1.1993 for their reinstatement but without any response. Both these petitions have been filed seeking a direction for the reinstatement of the petitioners with all consequential benefits. In the reply filed by the State, it has been stated that on registration of the FIR the services of petitioners were dispensed with under Rule 12.21. The power under this rule has been upheld by the Full Bench of this Court in 1997(2) SLR 371. Except the registration of FIR, there was no material against the petitioners for dispensing the service under Rule 12.21. Similar issue has been examined by the Hon'ble Supreme Court in the case of "Rajinder Kaur vs. Punjab State & Anr.", 1986(3) SLR 78. The appellant-petitioner in said case was a lady constable. She was discharged under Rule 12.21. She filed a civil suit challenging the order of discharge. The suit was dismissed by the trial Court; and an appeal preferred also came to be dismissed. Regular second appeal filed before the High Court met the same fate. However, in the special leave petition filed before the Hon'ble Supreme Court, the controversy was examined and Hon'ble Supreme Court made following observations:- "On a conspectus of all these decisions mentioned hereinbefore, the irresistible conclusion follows that the impugned order of discharge though couched in innocuous terms, is merely a camouflage for an order of dismissal from service on the ground of CWP No. 10958 of 1993 & CWP No. 11108 of 1993 3 misconduct. This order has been made without servicing the appellant any charge-sheet, without asking for any explanation from her and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross- examine the witnesses examined, that is, in other words the order has been made in total contravention of the provisions of Article 311 (2) of the Constitution. The impugned order is, therefore, liable to be quashed and set aside. A writ of certiorari be issued on the respondents to quash and set aside the impugned order dated 9.9.1980 of her dismissal from service. A writ in the nature of mandamus and appropriate directions be issued to allow the appellant to be reinstated in the post from which she has been discharged. The appeal is thus allowed with costs. The authorities concerned will pay all her emoluments to which she is entitled to in accordance with the extent rules as early as possible in any case not later than eight weeks from the date of this judgment. Appeal allowed." In another case reported as 1991(1) SLR 756, an ad hoc employee was terminated during pendency of the criminal proceedings though later acquitted. Hon'ble Supreme Court while considering the validity of the termination in para 8 observed :- "Moreover, from the sequences of facts of this case the inference is irresistible that the impugned order CWP No. 10958 of 1993 & CWP No. 11108 of 1993 4 of termination of the service of the appellant is of penal nature having civil consequences. It is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside." In view of the ratio of the aforesaid judgments, the impugned order (Annexure P-3) is not sustainable in law and is liable to be set aside. Mr. Malik submits that petitioners will not claim any arrears of pay and they may only be granted notional benefits. In view of the statement, these petitions are allowed by setting aside the impugned orders of discharge and respondents are directed to reinstate the petitioners on receipt of the copy of this order. They will not be entitled for any monitory benefit though their salary etc. shall be fixed on notional basis. A photocopy of this order be placed on the record of connected case. (PERMOD KOHLI) May 17, 2010 JUDGE Anand