RSA No. 345 of 1999 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 345 of 1999 Date of decision: January 29,2009 State of Punjab and another ..Appellants. Versus Ex.Constable Kulwinder Singh ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Rajesh Garg, Addl.A.G.Punjab for the Appellants. Mr. N.K.Banka, Advocate for the Respondent. ... Rakesh Kumar Garg,J. As per the averments made in the plaint, plaintiff-respondent was recruited as a Constable on 28.5.1990 and was attached with 36 Battalion, PAP, Bahadurgarh, Patiala. When he was undergoing training in R.T., P.A.P. Jalandhar Cantt., his mother fell ill and he after informing his incharge proceeded to his village on 5.1.1991 to see his mother. Again on 12..3.1991, the plaintiff fell ill and after informing his in charge he went to his village. He also applied for leave. The orders passed on his leave were never conveyed to him. However, the plaintiff reported back for his duty on 18.5.1991. The Commandant 36th Battalion, Bahadurgarh, Patiala issued a show cause notice dated 11.7.1991 to plaintiff proposing punishment of discharge under Rule 12.21 of the Punjab Police Rules( for short the 'Rules'). The plaintiff submitted detailed reply. However, vide impugned order dated 4.10.1991(Exh. P2), the plaintiff was discharged from service under Rule 12.21 of the Rules and his period of absence was treated as non-duty period. The plaintiff filed a suit for declaration challenging the aforesaid order being null and void, illegal and not binding on him on the ground that Rule RSA No. 345 of 1999 2 12.21 of the Rules under which he was discharged from service amounts to removal from service and was not applicable in the facts and circumstances of the case and since compliance of Rule 16.24 of Punjab Police Rules was not made as no opportunity of hearing was given to him,therefore, the impugned order was liable to be set aside and he was entitled to all the benefits. The defendant-appellant in the written statement denied the allegation of the plaintiff and inter alia pleaded that the work of the plaintiff was not satisfactory and he remained absent for a number of times and was also awarded punishment of Censure four times. It was further alleged that it was found by the department that the plaintiff was not likely to prove himself to be a good officer and that he was rightly discharged under Order 12.21 of the Rules. It was also stated that show cause notice was given to him and after considering his reply, the impugned order was passed. Other objections were also taken in the written statement. From the pleadings of the parties, the following issues were framed by the trial Court:- 1.Whether the plaintiff is entitled to the declaration prayed for ? OPP 2.Whether the civil court at Jalandhar has no jurisdiction to try the suit ?OPD 3.Whether the suit of the plaintiff is not maintainable in the present form ?OPD 4.Whether the suit of the plaintiff is pre-mature ?OPD 5.Whether the suit of the plaintiff is not properly valued for the purpose of Court fee ?OPD 6.Whether the plaintiff has failed to serve notice under Section 80 C.P.C ?OPD 7.Relief. After considering the evidence on record and hearing the parties, RSA No. 345 of 1999 3 the trial Court held that the plaintiff-respondent had been discharged on the specific allegation of willful absence from duty and this fact was also incorporated in the impugned order, therefore, the impugned order being stigmatic passed under Rule 12.21 of the Rules discharging the plaintiff from service was not liable to be sustained. While setting aside the impugned order dated 4.10.1991 passed by the Commandant 36 Battalion, PAP, Bahadurgarh (Patiala), the trial Court further issued a direction to the defendant/appellant to hold a departmental inquiry against the plaintiff respondent and to conclude the same within six months from the date of the judgment and decree. Appeal filed by the defendants against the aforesaid judgment and decree of the trial Court was also dismissed being without any merit by the Additional District Judge, Jalandhar vide impugned judgment and decree dated 19.8.1998. While dismissing the appeal, the lower Appellate Court observed as under:- “The facts are not in dispute. Admittedly, the plaintiff was working as a constable in Punjab Armed Police and show cause notice was issued to him and that he was discharged from service. The perusal of discharge order Ext. P2 shows that it is punitive in nature. It is clearly mentioned in the impugned order that the plaintiff is negligent in performing his duties and appears to be lazy and is habitual of committing mistakes and is incorrigible. It is further stated that he does not take interest in the police service and is unfit to become a good police officer. These remarks show that the order of discharge is not a simplicitor discharge order; rather a stigma has been cast upon him. Therefore, the order amounts to dismissal or removal from service on the ground of misconduct. Now it is settled law that if the order is not simple order of discharge and is stigmatic, the same cannot be passed except after holding inquiry and affording the petitioners due and reasonable opportunity of hearing. Rajinder Kaur Vs. Punjab RSA No. 345 of 1999 4 State, Air 1986 Supreme Court 1772; State of Haryana Vs. Jagdish Chander, 1995(1) SLR 696; Suresh Kumar Vs. State of Haryana, 1996(1) SLR 195; Y.N. Krishna Murthy Vs. Karnataka Silk Industries Corporation Ltd. 1996 (8) Services Law Reporter 662, and Allahabad Bank Officers Association and another Versus Allahabad Bank & others, 1996(4) Services Law Reporter 22 (Supreme Court); are the authorities on this proposition of law. The authorities referred to by the learned Govt. Pleader are distinguishable and are not applicable to the facts of the present case. In the case of Shagan Lal Vs. State of Punjab (Supra), it was found that the order did not cast a stigma and, therefore, no inquiry was required to be held. In the present case as already discussed above, the order cast a stigma and is punitive in nature. In the case of State of Haryana Vs. Jagdish Chander (supra), it was also held that when the order cast a stigma, the rules of natural justice are to be observed and direction was issued to hold inquiry and to give an opportunity to the constable to defend himself. This authority was also considered by the Hon’ble Mr. Justice V.K. Jhanji, along with other several authorities of the Supreme Court in the case of Suresh Kumar, Constable Vs. State of Haryana, 1996(1) S.L.R. 195; and it was held that the impugned orders were not simple orders of the discharge but were stigmatic and could not have been passed except after holding inquiry and affording the petitioner due and reasonable opportunity of hearing and the order of dismissal was thus quashed on this ground. In the present case also, as discussed above, the order is stigmatic and as such could be passed only after holding an inquiry. The learned Govt. Pleader has not been able to cite any rule of law under which the order could be passed only after giving show cause notice. Discharge from service is a major punishment and, RSA No. 345 of 1999 5 therefore, holding of inquiry is requirement of law as held above. The trial Court has, therefore, rightly set aside the impugned order and directed the authorities to hold inquiry. The findings of the trial Court on these issues are, therefore, correct and are affirmed. Still not satisfied, the defendants have filed the present appeal challenging the impugned judgment and decrees of the courts below on the ground that the courts below have not properly appreciated the impugned order passed under the provisions of Rule 12.21 of the Rules, which provides that the police officer who puts in less than three years in service and where it appears from the conduct of that officer that he was not likely to prove to be an efficient police officer, he can be discharged from service under this Rule. Vide order dated 8.2.1999, notice in this appeal was issued and operation of the impugned judgment and decree was stayed. The appeal was admitted and order dated 8.2.1999 was ordered to be continued vide order dated 26.10.1999 passed by this Court. During the course of arguments, it was brought to the notice of the Court that no substantial question of law arising out of this appeal had been framed by the appellant so far in this appeal. However, on the oral request of the counsel for the appellant and after hearing arguments, the following question of law which is said to be arising in this appeal was framed:- “Whether the impugned order dated 4.10.1991 discharging the plaintiff-respondent from service had been passed in accordance with law?” To substantiate his argument, the counsel for the appellant has vehemently argued that the impugned order of discharge was not punitive in nature as it is clearly mentioned in the impugned order that it appears from the conduct of the appellant that he was not likely to prove himself to be an efficient police officer and therefore, the impugned order was perfectly legal. Elaborating his argument, learned counsel has argued that the officer was not likely to prove RSA No. 345 of 1999 6 to be an efficient police officer as his conduct was seen by the competent authority as incorporated in the impugned order only for assessment of the officer and it cannot be said that the same is stigmatic and as such, the impugned order of dismissal amounts to discharge under Rule 12.21 of the Rules and the plaintiff had no case and the appeal is liable to be accepted and the suit of the plaintiff-respondent be dismissed. On the other hand, learned counsel appearing on behalf of the plaintiff-respondent has contended that the present order was passed on the specific allegations of absence from duty, as according to the defendants themselves, the plaintiff was found to be habitual absentee and the perusal of the impugned order also shows that a verdict was also recorded by the competent authority vide the impugned order that the plaintiff remained willfully absent from time to time. The learned counsel for the respondent has contended that as the present order vide which the plaintiff was discharged is a stigmatic order as the same had been passed by way of punishment, therefore, Rule 12.21 of the Rules was not applicable in the present case and the plaintiff- respondent could not have been dismissed from service without complying with the provisions of Rule 16.24 of the Rules as it was incumbent upon the department to hold a departmental inquiry against the plaintiff and an opportunity should have been given to him to defend himself. In support of his contentions, learned counsel for the plaintiff-respondent has relied upon State of Haryana and another Versus Jagdish Chander 1995(1) SLR (SC) 696. I have heard learned counsel for the parties. In Jagdish Chander's case (supra), it was held by the Apex Court that if a police constable is discharged from service on the ground that he is habitual absentee, negligent to his duty and indisciplined, the orders castes stigma and the rules of natural justice must be observed before passing the order of discharge. Hon’ble Supreme Court further ruled that a departmental inquiry was necessary to be directed in that very case. However, it was also observed by their lordships in that very case that an employee should not be RSA No. 345 of 1999 7 reinstated straightway but the best course is to issue a direction to the defendants to hold inquiry against the delinquent official. It is useful to refer to Rule 12.21 of the Rules, which reads as under:- “ 12.21. Discharge of inefficient.- A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent of Police at any time within three years of enrolment. There shall be no appeal against an order of discharge under the rule.” While interpreting this rule, the Hon'ble Apex Court in the case of State of Punjab Versus Rajesh Kumar (2006) 12 Supreme Court Cases 418 held as under:- “Departmental inquiry is not required before passing an order under Rule 12.21 of the Punjab Police Rules to discharge a constable on ground of his unauthorized absence and being habitual absentee who is not suitable to become a police officer. The order of discharge passed by the Senior Superintendent of Police was not based on misconduct of the respondent and, therefore, no opportunity of hearing is necessary as per law. In the instant case, a simple order of discharge has been passed. The respondent was on probation. The period of probation gives an opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant. In the instant case, the department officials found the respondent not suitable for the post and, therefore, they always reserve a right to dispense with his services in any manner during or at the end of the prescribed period which is called period of probation. The order of termination was not punitive in nature.” In the instant case, the respondent was an unauthorized absentee RSA No. 345 of 1999 8 and the Superintendent of Police found him unlikely to prove an efficient police officer as per high standard of discipline as being expected from police personnel. The respondent was on probation and his services were dispensed with under Rule 12.21 of the Rules. In a similar case, titled as State of Punjab Versus Balbir Singh (2004) 11 SCC 743, a constable was discharged from service under Rule 12.21 on the basis of specific charge of consumption of liquor in office and misbehaviour with a lady constable. The Hon'ble Supreme Court while affirming the order of discharge passed the following order:- “ Order of termination cannot be held to be punitive in nature. The misconduct on behalf of the respondent was not the inducing factor for the termination of the respondent. The preliminary inquiry was not done with the object of finding out any misconduct on the part of the respondent, it was done only with a view to determine the suitability of the respondent within the meaning of Punjab Police Rule 12.21. The termination was not founded on the misconduct but the misbehavior with a lady constable and consumption of liquor in office was considered to determine the suitability of the respondent for the job, in the light of the standards of discipline expected from police personnel.” A Full Bench of this Court in Sher Singh Versus State of Haryana (1994) 2 SLR 100 (P&H) (FB), has held that a constable can be discharged from service under Rule 12.21 of the Punjab Police Rules, 1934 at any time within three years of his enrolment in spite of the fact that there is a specific allegation which may even amount to misconduct against him. It was further held by the Full Bench that a Superintendent of Police can form his opinion on police officer not only on the basis of the periodic reports contemplated under Rule 19.5 but also on the basis of any other relevant material. The Hon'ble Supreme Court in the case of State of Punjab and others Versus Bhagwan Singh (2002) 9 Supreme Court Cases 636, held that RSA No. 345 of 1999 9 when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma. Now adverting back to the instant case, it is the admitted case of both the parties that the plaintiff was working on the probation period when he was discharged from service. The plea of the defendant is that the plaintiff had not as yet completed his probation period and therefore, he was rightly discharged by the punishing authority under Rule 12.21 of the Rules as he used to remain willfully absent from duty and he was not likely to become a good police official and his absence etc. was considered only for the purpose of assessment of the officer, whereas the plea of plaintiff is that the order is by way of punishment and therefore stigmatic. Keeping in view the various authoritative pronouncements referred to above, the only point to be decided in this case is whether the impugned order of discharge of the respondent is punitive in nature casting a stigma upon him or a simpliciter order of discharge under Rule 12.21 of the Rules. True translation of the impugned order is reproduced as under:- “Kulwinder Singh recruit constable No.36/661 son of Shri Narinder Singh resident of village Tandi, Police Station Bhogpur, District Jalandhar was recruited as Constable on 28.6.1990 in P.A.P./36th Battalion and was sent at P.A.P./R.T.C. Jalandhar Cantt. For doing basic recruit course. During the course of his training on 5.1.1991, he become absent without leave, without permission during the counting made in the evening from P.A.P./R.T.C. Jalandhar Cantt., whereupon his absence was recorded in the Roznamcha vide report No. 32 dated 5.1.1991. He come present on 26.1.1991 vide report No.3 after a period of absence of 20 days 15 minutes. Once again on 12.3.1991 Kulwinder Singh recruit constable No.36/661 during the course of training became absent without RSA No. 345 of 1999 10 permission and without leave from R.T.C./P.A.P. Jalandhar Cantt., whereupon the report regarding his absence was recorded in the Roznamcha of R.T.C../P.A.P. Jalandhar Cantt. Vide report No.14 dated 12.3.1991. After remaining absent for a period of 67 days 12 hours 40 minutes he came present vide report No.38 dated 18.5.1991. In this way the said act of Kulwinder Singh recruit No.35/661 being a member of Discipline Forum during the course of very short period of job during training for remaining absent time and again during very short period of job at his will, without any reason is a proof of gross violation of discipline, carelessness and irresponsibility. It has been proved in the very first sight on account of remaining absent for longer period at his own will and creating indiscipline by Kulwinder Singh recruit constable No.36/661 during the course of his training that this official do not possess qualities of becoming a good Police Officer in future. After perusing and examination of the documents relating to his remaining absent from duty it has been found out that he has not shown interest in his training, service and police discipline. Therefore, according to my temporary view a show cause notice No. 12020/Steno dated 11.7.1991 was issued to recruit constable Kulwinder Singh No.36/661 under Rule 12.21 of Punjab Police Rules to discharge him from Police Department and treating the period as absent from duty. As this constable was again absent from 18.7.1991 from R.T.C./P.A.P. Jalandhar Cantt., therefore, this show cause notice was sent at his residential address through S.I. Piare Lal No. PAP/104 (Control room) to serve upon him, but constable Kulwinder Singh was not met at the house and as such this notice was served upon his sister Amarjit Kaur on 23.7.1991, who told that whenever constable Kulwinder Singh come home, he would be RSA No. 345 of 1999 11 sent (back) on his duty. Kulwinder Singh recruit Constable No.36/661 come present on 26.7.1991 at Battalion Headquarters. A show cause notice bearing No. 12020/Steno dated 11.7.91 was served upon him, he himself received the same on 26.7.91. The said notice was read over and explained to him. He was given a period of seven days to file a reply. Vide the said notice, he was also informed that in case he wanted to say anything in his defence verbally, he may do so by appearing before the undersigned. Recruit constable Kulwinder Singh No.36/661 filed a written reply to the said show cause notice, which I perused minutely and examined the same. In his reply, he disclosed that on 5.1.1991, his mother was ill and he went absent in order to see her as leave was not granted to him. I do not agree with the reason given by recruit constable Kulwinder Singh No.36/661 because in case, his mother was ill, he should go after getting his leave granted. In case he was not granted leave, he should get the same granted by appearing before Senior Officers, but he remained absent for about 21 days continuously of his own. During this long period of his absence, he did not send any information at the place of his posting or Battalion Headquarters. Besides, he did not submit any medical certificate etc. with regard to the illness of his mother, which proves that recruit constable Kulwinder Singh No.36/661 has fabricated the fact. Regarding his second absence w. e. f. 12.3.91 to 18.5.91 i.e. 67 days 12 hours and 40 minutes, he has disclosed that he was suffering from fever and as such went home. The said reason given by him is also baseless and unbelievable. Recruit constable Kulwinder Singh No.36/661 R.T.C. was recruited at PAP Jalandhar and during the period of his training he remained absent for about 68 days deliberately of his own. In case, he was suffering from fever, he should have brought the said fact into the notice of RSA No. 345 of 1999 12 his Senior Officers and should get his treatment done from PAP Hospital, where the medical services are provided round the clock or should get his treatment done at Civil Hospital Jalandhar through the department, if the same was required. But, he went absent after leaving his training of his own and remained absent for a long time. During the long time of his absence, he did not send any information to his department and did not submit any medical certificate with regard to his illness, which reveals that he did not fall ill and has belied on account of covering up his absence. The recruit constable Kulwinder Singh No.36/661 has remained absent for long time, time and again of his own during his short period of service while doing a course of recruit which proves that he does not want to serve in the Police Department and does not possesses the ability/qualities to become a competent Police Officer in future. Therefore, as proposed in the show cause notice No.12020/Steno dated 11.7.91, I discharge recruit/constable Kulwinder Singh No.36/661 from the Police Department according to Punjab Police Rules 12.21 w. e. f. Today, i.e., 4.10.1991, A.N. And treat the period his absence as non-duty period. Order may be entered in the book and a copy of the said order may be supplied to recruit/constable Kulwinder Singh No.36/661, free of cost.” From perusal of the aforesaid order, it is clearly made out that the said order has not been passed by way of punishment. However, it is correct that while making assessment of the respondent, the competent authority has referred to his willful absence from work without any reason as a proof of gross violation of discipline, carelessness and irresponsibility from which it can be made out that he did not possess the ability/ qualities to become an efficient police officer in future. Thus, it cannot be said that the aforesaid impugned order was passed by way of punishment and therefore, the same is stigmatic and RSA No. 345 of 1999 13 compliance of Rule 16.24 of the Rules should have been made. Thus the substantial question of law as framed is answered in favour of the appellant and against the respondent and it is held that the impugned order is a simpliciter order of discharge passed under Rule 12.21 of the Rules and therefore, the judgment and decrees of the courts below are erroneous. For the reasons recorded above, the appeal is accepted, judgment and