Regular Second Appeal No. 2809 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2809 of 1986 Date of decision: 23.03.2010 State of Punjab ...Appellant Versus Darbara Singh ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Ms. Ambika Luthra, AAG, Punjab for the appellant. None for the respondent. RANJIT SINGH J. Darbara Singh (respondent-plaintiff), who was serving as Constable in the General Reserve Police Force ( in short 'GRP') was discharged from service under Rule 12.21 of the Punjab Police Rules. He filed a suit seeking declaration to the effect that the order of discharge passed on 23.7.1979 by Assistant Superintendent of Police was illegal, arbitrary, ultravires and against the principles of natural justice. Darbara Singh was appointed as Constable on 07.11.1977. As per him, he was discharged while he was performing his official duty efficiently, diligently and honestly. He attributed this discharge to an incident which took place on 07.09.1979 when he was deputed to go alongwith the train from Amritsar to Pathankot. He would accordingly term this order to be punitive one and as such bad in law, as the same was passed without affording any opportunity of hearing to the respondent-plaintiff. Regular Second Appeal No. 2809 of 1986 2 The respondent-plaintiff challenged the order on the ground that the same was not passed by the competent authority i.e. Assistant Superintendent of Police, whereas Rule 12.21 would empower only the Superintendent of Police to pass such an order of discharge. The suit filed by the respondent-plaintiff was contested by the appellant-State. It is stated that the respondent-plaintiff was not diligent in discharging his duties on that particular date when he did not come out of the compartment to inquire as to how person in the other compartment had been injured. Otherwise it is conceded that respondent-plaintiff had been given a commendation certificate in recognition of his non participation in the police agitation launched in May, 1979. On the basis of the pleadings following issues were framed:- 1. Whether the order of removal from service of the plaintiff dated 23.7.1979 is illegal, null and void for the grounds mentioned to para No. 8 of the plaint?OPP. 2. Whether the suit is barred by time? OPD. 3. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD. 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the notice under Section 80 C.P.C. is valid? OPD. 6. Whether the suit is bad for mis-joinder of defendants Nos. 2 and 3? OPD. Regular Second Appeal No. 2809 of 1986 3 7. Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD. 8. Relief. The suit was dismissed by the trial Court against which the respondent-plaintiff filed an appeal. The First Appellate Court reversed the finding and allowed the suit on 12.5.1986. The present Regular Second appeal was filed in October 1986 and was admitted on 2.3.1987. While admitting the Regular Second Appeal, no stay was granted. Even application was moved for recalling the order of admission, which was dismissed by this Court on 6.4.1987. Thereafter, more than one attempt was made to seek stay of the impugned judgment. Despite that, this Court on 4.5.1987 passed the order permitting the respondent-plaintiff to release the amount deposited in the court by furnishing security, which was to be accepted after due notice to the State. Even thereafter, number of applications were moved. Some of these were by the respondent-plaintiff seeking execution of the impugned judgment. However, he was given liberty to file appropriate application for seeking execution of the impugned judgment. Ultimately the respondent-plaintiff was reinstated into service on 14.11.2005. The reinstatement was from the date he was discharged i.e. 23.07.1979. The said period from 23.7.1979 to 14.11.2005 was directed to be counted as on duty. The respondent- plaintiff was also allowed to attend the orientation course from 11 June to 16 June at PRTC Jahan Khelan, District Hoshiarpur. This fact was placed on record by moving application for additional Regular Second Appeal No. 2809 of 1986 4 evidence. It was also pleaded that by virtue of this order, the respondent-plaintiff would be having more than 29 years of service and thus the provisions of Rule 12.21 could not now be put in operation. Apparently, with efflux of time the equities have majorly changed. Though there was a judgment in favour of the respondent- plaintiff passed in the year 1986, but he had to seek the execution of the same on number of years and ultimately succeeded in the year 2005 to get reinstatement. He, however, had been granted benefit of the entire service from the date of his discharge. Obviously, he either is in service or may have by now retired. Though there may be some substance in the submissions made by the learned State counsel, when she points out that the discharge of the respondent-plaintiff may have some relation to the incident in the train but this in itself would not render the order of simpliciter discharge to be bad on that count. In support, she has drawn my attention to State of Punjab and others versus Constable Avtar Singh (dead) through LRs JT 2008 (6) Supreme Court 576. A police Constable in this case was discharged from service because he had remained absent. Relying on the ratio of a case in the case titled State of Punjab and others Vs. Sukhwinder Singh, JT 2005 (6) SC 170, it was held that order of discharge under Rule 12.21 was justified without holding enquiry once it is passed within three years of enrollment. The submission made by the learned State counsel would have support from the ratio of law in the case of Avtar Singh (supra). Regular Second Appeal No. 2809 of 1986 5 However, it would not be fair to interfere in the impugned order at this belated stage, especially so, when the respondent-plaintiff has been reinstated since 2005 and has been paid all the arrears of pay and allowances from the date of discharge. It may be so that arrears were paid to him subject to outcome of the present Regular Second Appeal but it is also to be considered whether it would be fair to discharge the respondent-plaintiff now when he would have nearly 30 years of service to his credit. Even otherwise, the order of discharge has been passed by the Assistant Superintendent of Police. The perusal of Rule 12.21 would show that the power is with the Superintendent of Police to discharge a Constable. The scope of rule as was analysed in Shri Dwarka Dass versus Superintendent of Police, Ludhiana and others, 1968 SLR (2) 760 would show that this is to provide confirmation of temporary police constable. It is held in this case that power to discharge a recruit can only be exercised by Superintendent of Police within three years from the date the Constable is brought on the register of enrolled recruits. A constable who has obtained certificate under Rule 12.22, can not be dealt with under Ruule 12.21 and that he can only be removed by following procedure in Chapter XVI of the Police Rules. In this background, it is emphasized in this judgment that all the recruits who are temporary hands thus are to be confirmed under the powers exercised by Superintendent of Police and that within the period of 3 years. Concededly, the power in this case was exercised by Assistant Superintendent of Police, who apparently would not Regular Second Appeal No. 2809 of 1986 6 have authority or jurisdiction to pass an order of discharge under Rule 12.21. It would also require consideration if the power under the section would have any meaning, when respondent-plaintiff by now have to his credit a service of over 30 years. He has also done training in service from 2005 onwards i.e. more than 5 years. This will require consideration in the light of the fact that the order under Rule 12.21 could be passed only within a period of 3 years. In view of the position as noted above, I am not inclined to interfere in the view taken by the First Appellate Court but would leave the question of law open so far as power to pass the order under Rule 12.21 of the Rules is concerned. The Regular Second Appeal shall stand dismissed. March 23, 2010 (RANJIT SINGH) rts JUDGE