IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 81 of 1999 Date of Decision : May 02, 2008 The Punjab State and others ....Appellants Versus Balwinder Singh .....Respondent CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. R.S. Rawat, Assistant Advocate General, Punjab for the appellants. Mr. H.S. Gill, Senior Advocate with Mr. Vivek Goyal, Advocate for the respondent. T.P.S. MANN, J. Suit for declaration filed by plaintiff-respondent was decreed by the learned trial Court, which decision was upheld in appeal by the learned first appellate Court. Aggrieved of the same, the appellants filed the present appeal, which was dismissed on July 05, 2001. The appellants challenged the decision by moving the Hon’ble Supreme Court. After the grant of Special Leave, the consequential civil appeal was disposed of by the Hon’ble Supreme Court on February 16, 2006 by remitting the matter to this Court for fresh consideration on merits. Hence, the matter Regular Second Appeal No. 81 of 1999 -2- is once again before this Court for disposal of the appeal. In his suit, the plaintiff-respondent sought a declaration that the order dated 5.7.1995 passed by the Deputy Inspector General of Police, PAP, Jalandhar Cantt., dismissing his appeal against order dated 31.8.1994 passed by the Commandant, 13th Bn., PAP, Jalandhar Cantt., was illegal, void, unlawful, unconstitutional, arbitrary, capricious, null, wanton, discriminatory and malafide and, therefore, not binding on him and that he continued to serve the department as Head Constable as before and entitled to all rights, privileges and other service benefits attached to that post. Vide order dated 31.8.1994, the Commandant had dismissed the plaintiff from service, treating the period from 8.2.1994 to 16.3.1994 and from 19.4.1994 to 24.4.1994 of his absence as non-duty and without pay period, besides treating the entire period of suspension as period of suspension for all purposes. The case of the plaintiff was that he joined the Punjab Police Department as Constable in the PAP, Jalandhar Cantt. on 27.7.1981. He was promoted as Head Constable in June, 1990. On 8.2.1994, when he was posted as Guard Incharge at the residence of an M.L.A., he was suddenly taken ill. He informed the Incharge Security and went to his village for treatment. He remained under the treatment of various doctors. He made several applications for grant of leave on medical Regular Second Appeal No. 81 of 1999 -3- ground. However, he was not informed of the orders passed on his applications. When he was declared fit, he reported back for duty on 26.4.1994 and treated as absent from duty for 77 days. A complaint was made by Senior Superintendent of Police (Rural), Jalandhar that on 8.2.1994, one Constable Gurdip Singh and Smt. Balwinder Kaur, wife of the plaintiff, hired one Maruti car from Taxi Stand, Phillaur and robbed its driver at gun point. It was also complained that the service weapon of the plaintiff was used in the commission of the said crime. A departmental enquiry was conducted by Assistant Commandant, 13th Battalion, PAP, Jalandhar against the plaintiff on the allegations of absence from duty and actively aiding and abetting the robbery. On receipt of the findings of the Enquiry Officer, the Commandant dismissed him from service vide order dated 31.8.1994. The period from 8.2.1994 to 16.3.1994 and from 19.4.1994 to 26.4.1994 was treated as non-duty and without pay period. However, the period from 17.3.1994 to 18.4.1994 was treated as leave on medical ground. An appeal was, thereafter, preferred by the plaintiff but the same stood rejected by Deputy Inspector General of Police, PAP vide order dated 5.7.1995. It was pleaded that the plaintiff was not absent from duty and had gone on leave. As such, no enquiry could be conducted against him. No sanction of the District Magistrate was obtained for conducting the departmental enquiry as per Rule 16.38 of the Punjab Police Rules, 1934 (hereinafter referred to as ‘the Rules’). The plaintiff was not given the copy of Regular Second Appeal No. 81 of 1999 -4- documents and also not allowed to cross-examine the witnesses. The impugned order was passed by the Commandant in contravention of Rule 16.2. In their written statement, the defendants-appellants stated that the plaintiff absented himself on 8.2.1994 without any prior permission. On that very day, FIR No. 8 was registered at Police Station, Phillaur under Sections 392/34 IPC and 25/27 of the Arms Act. Though, the said FIR did not relate to the plaintiff, yet an enquiry was conducted against him as per the Rules. On submission of findings of the Enquiry Officer, the Punishing Authority issued a show cause notice to which a reply was filed, which was rejected by the Punishing Authority and the plaintiff was dismissed from service vide impugned order. The enquiry was conducted as per the rules and both the impugned orders were legal and valid, having been passed as per service rules and principles of natural justice. Provisions of Rule 16.38 were not applicable, as the plaintiff was not directly involved in the offence of robbery. All the copies of documents were supplied to him and he was given an opportunity to cross-examine the witnesses produced by the department. Even the provisions of Rule 16.2 were also complied with. Regular Second Appeal No. 81 of 1999 -5- From the pleadings of the parties, learned trial Court framed the following issues :- 1. Whether the plaintiff is entitled to declaration as prayed for ? OPP. 2. Whether a legal and valid notice under Section 80 C.P.C. was served before institution of the present suit ? OPP. 3. Whether the suit is bad for non-joinder of necessary parties ? OPD. 4. Whether the suit lies within the jurisdiction of this Court ? OPP. 5. Relief. Learned lower Courts held the dismissal of the plaintiff- respondent to be invalid on the ground that he stood promoted as Head Constable by the Deputy Inspector General of Police, therefore, he could be dismissed only by the Deputy Inspector General of Police and not by the Commandant, as done in the present case. Learned counsel for the appellants submitted that the Appointing Authority of the Head Constable is Superintendent of Police Regular Second Appeal No. 81 of 1999 -6- and, therefore, the order passed by the Commandant, 13th Battalion, PAP, Jalandhar which officer was equivalent in rank to that of Superintendent of Police, was a valid order. Thus, there was no illegality in the passing of the impugned order against the plaintiff-respondent. This argument was repelled by learned counsel appearing for the respondent by submitting that when the order promoting the respondent as Head Constable was passed/approved by the Deputy Inspector General of Police, who was higher in rank than the Commandant, the punishment of dismissal could only be imposed by he Inspector General of Police and not by the Commandant. Rule 12.1 specifies the authorities empowered to make various appointments in police heirarchy. As per the table, appointments of Constables and Head Constables is to be made by Superintendents of Police and the like. Rule 13.3 refers to power to make promotion amongst gazetted and enrolled police officers. Sub-rule (1) vests the power to make promotions from non-gazetted to gazetted rank in the local government with the concurrence of His Excellency, the Governor. No such promotion from Constable to Head Constable and, that too, by the local government comes within the meaning of Rule 13.3(1). However, under Rule 13.3(2), it has specifically been incorporated that promotions to the rank of Head Constables shall be made by Regular Second Appeal No. 81 of 1999 -7- Superintendents of Police. There is another provision in the Rules relating to promotion as Head Constables. All Constables, who passed the lower school course, are considered eligible for promotion to the post of Head Constable. Rule 13.8 requires the maintaining of a list of all the eligible Constables, which list has to contain the marking under Rule 13.5 (2) and notice by the Superintendent himself. This list has to be kept confidentially by the Superintendent, which shall be open to scrutiny and approval by the Deputy Inspector General of Police at the time of annual inspection. However, Rule 13.8(2) clearly states that the promotions as Head Constables shall be made in accordance with the principle described in sub-rules 13.1(1) and (2). A combined reading of all the aforementioned provisions is a clear indication of the fact that it is the Superintendent of Police, who appoints Head Constables or promotes them from the list maintained by himself. The role of the Deputy Inspector General of Police only comes for a limited purpose in respect of the promotion of Constables to the post of Head Constables. He is under duty to scrutinize the list and approve the same at the time of annual inspection. The question then to be considered is whether the order passed by Deputy Inspector General of Police promoting the plaintiff as Head Constable could mean that his Appointing Authority was Deputy Inspector General of Police or the Appointing Authority would still Regular Second Appeal No. 81 of 1999 -8- remain Superintendent of Police and in such a situation the Commandant 13th Battalion, PAP, who was equivalent to the rank of Superintendent of Police could pass an order dismissing the respondent from service. In Punjab State and another Vs. Shri Kirpal Singh 1999 (3) RSJ 664, it was held by this Court that when the Appointing Authority of the respondent therein was Inspector General of Police, then the order of termination could only be passed by the same authority and if the order of termination has been passed by the Commandant, who was lower in rank than the Inspector General of Police, such an order could not survive. The name of the respondent therein, for being brought on Promotion List C-1, was approved by Inspector General of Police, PAP, Jalandhar Cantt. Under these circumstances, Inspector General of Police was considered for all intents and purposes the promoting authority of the respondent as Head Constable and, therefore, the dismissal order could only be passed by the Inspector General of Police or equivalent authority thereto but not by the Commandant, who was equivalent to the rank of Senior Superintendent of Police. In State of Punjab and others Vs. Manohar Lal 1986 (Supp.) Supreme Court Cases 524, it was held that Superintendent of Police was competent under Rule 12.1 to make the appointment to the non-gazetted ranks of Sub Inspectors of Police and Assistant Sub Regular Second Appeal No. 81 of 1999 -9- Inspectors of Police and, therefore, competent to make the order impugned therein of compulsory retirement of the plaintiff from service in public interest. The argument raised by the plaintiff therein that it was Deputy Inspector General of Police, who was competent to make the order of compulsory retirement, was not sustained even when it was shown that the substantive promotion to the rank of Assistant Sub Inspector had been made by Deputy Inspector General of Police in accordance with the principles prescribed in Rule 13.1. In State of Punjab and Another Vs. ASI Balkar Singh (2002) 10 Supreme Court Cases 171, the Hon’ble Supreme Court held that the order of promotion of the respondent therein as Assistant Sub Inspector was passed by the Superintendent of Police and the Deputy Inspector General of Police had only affirmed the same and, therefore, it could not be said that the Senior Superintendent of Police was not competent to pass the order of punishment in question. Support was also sought from the earlier decision in State of Punjab Vs. Manohar Lal (supra). Relevant para 4 of the said judgment is re-produced here-in- below :- “A perusal of the records will clearly indicate that the order of promotion was passed by the Superintendent of Police and the Deputy Inspector General had only affirmed that order appointing Regular Second Appeal No. 81 of 1999 -10- him as Assistant Sub-Inspector. Therefore, it could not be said that the Senior Superintendent of Police was not competent to pass the order of punishment in question. The fact that the Superintendent of Police is competent to pas such an order is also clear from the decision of this Court in State of Punjab v. Manohar Lal.” In State of Punjab Vs. Hari Singh 2008(2) Law Herald (SC) 1390, it was again held that inspite of Director Inspector General of Police approving the list of Constables for promotion as ASIs and signing the same, concerned Senior Superintendent of Police still had the power to impose punishment on the erring official. It was not right to conclude that it was Director Inspector General of Police, who was competent Authority to pass the order impugned therein. Paras 6 and 7 of the aforementioned decision read as follows :- “6. On hearing counsel for the parties and on going through the record of the case, we find that the High Court and the Courts below took a patently wrong view of the matter and the decree passed by the trial Court in favour of the respondent and upheld by the first appellate Court and the High Court is plainly unsustainable. The finding arrived at by the trial Court (that remained undisturbed up to the High Court) that the respondent was promoted by the order of Deputy Inspector General of Police, Regular Second Appeal No. 81 of 1999 -11- Ferozepur is bad both in law and on facts. The finding is solely based on Exhibit P.1 which is the Photostat copy of the order dated 1.4.1990 and which was mistaken by the trial Court as the order granting promotion to the respondent as Assistant Sub Inspector of Police. On a careful examination it would appear that though it was indeed signed by the Deputy Inspector General, it was an order approving the list of constables, who were recommended by the DPC for promotion to the rank of Assistant Sub Inspector of Police. At the end of that order, it is clearly stated that the list (from serial Nos. 47 to 69) was approved for promotion and further that necessary gazette notifications should be issued by the concerned Senior Superintendents of Police. It is clear that the promotion of the respondent as Assistant Sub-Inspector was not legally formalized by the order of the DIG dated 1.4.1990 and the actual promotion was made by orders passed by the concerned Senior Superintendents of Police (in this case, of Ferozepur). The order of Senior Superintendent of Police by which the respondent was actually promoted was not produced by either side. 7. Here, it is important to bear in mind that in the order, dated 1.4.1990 the way the Deputy Inspector General of Police after giving approval to the select list left the actual promotions to be made by the respective Senior Superintendent of Police was Regular Second Appeal No. 81 of 1999 -12- perfectly in accordance with the statutory rules. Rule 12.1 in Chapter XII of the Punjab Police Rules lays down that the appointing authority for Sergeants, Sub-Inspectors and Assistant Sub-Inspectors, is the Superintendent of Police.” It may also be mentioned here that the decision in Kirpal Singh’s case (supra) was upheld by the Hon’ble Supreme Court on March 09, 2004 when it dismissed Civil Appeal No. 3274 of 2001. The said decision was also referred to on behalf of the plaintiff-respondent when the State appeal in the present case was considered and disposed of by the Hon’ble Supreme Court. It was submitted on behalf of the appellants that the relevant rules had not been placed for consideration before the Bench, which was ceased of Civil Appeal No. 3274 of 2001. Under these circumstances, the Civil Appeal No. 5625 of 2002 arising out of the decision rendered by this Court on July 05, 2001 was disposed of by remitting the matter in hand for fresh consideration on merits. None of the relevant rules, i.e. Rules 12.1, 13.3(1) and (2) and 13.8(1) were considered by this Court when it decided Punjab State and another Vs. Shri Kirpal Singh (supra). The Court, after observing the concurrent finding, recorded by the Courts below that as the name of the respondent therein had been approved for promotion to the post of Head Constable, therefore, it was the Inspector General of Police, who Regular Second Appeal No. 81 of 1999 -13- was promoting authority, held that the order of dismissal could only be passed by the Inspector General of Police or equivalent thereto but not by the Commandant equivalent to the rank of Senior Superintendent of Police. As is clear from the aforementioned rules, Appointing Authority of Head Constable is Superintendent of Police. Even the Constables, who have to be promoted as Head Constables, their names have to be contained in list to be maintained by Superintendent of Police. Mere fact that the said list was to be scrutinized and approved by the Deputy Inspector General of Police at his annual inspection did not mean that the Deputy Inspector General of Police became the Appointing Authority of a Head Constable. In coming to such a conclusion, this Court can derive benefit from the decision in State of Punjab and another Vs. ASI Balkar Singh (supra). Though, as per order dated 16.7.1990, it was Inspector General of Police, PAP, Jalandhar Cantt, who approved the names of various Constables, including the plaintiff-respondent for being brought on Promotion List C-1 and then for promotion to the rank of officiating Head Constable yet the actual order to that effect, i.e. for bringing the name of the plaintiff-respondent on list C-1 and promoting him to the rank of officiating Head Constable was passed on 20.7.1990 by Commandant, 75th Bn., PAP, Jalandhar Cantt and the copies of the order were then sent to Commandant, 13th Battalion, PAP, Jalandhar. Regular Second Appeal No. 81 of 1999 -14- It was also submitted by learned counsel for the respondent that provisions of Rule 16.38 were not complied by the appellants. Rule 16.38 requires giving of immediate information to the District Magistrate of any complaint received by the Superintendent of Police, which indicates the commission by the Police Officer of a criminal offence in question with his official relations with the public and in case investigation was to be conducted thereafter, it could only be ordered by the District Magistrate. Without getting any sanction from the District Magistrate, no such investigation could be started. Though FIR No. 8 dated 8.2.1994 was registered under Sections 392/34 IPC and Sections 25/27 of the Arms Act at Police Station, Phillaur, yet same was against Constable Gurdip Singh and Smt. Balwinder Kaur wife of the plaintiff-respondent. The plaintiff- respondent himself was not directly involved in the said criminal case. However, it surfaced later on during the enquiry that he had knowingly handed over his service weapon to Constable Gurdip Singh, who robbed the driver of the Maruti car at gun point. Under these circumstances, there was no requirement of obtaining a formal sanction from the District Magistrate. The departmental enquiry was initiated as per the procedure. Therefore, it cannot be said that the proper course, as required by Rule 16.38 was not adopted by the defendants-appellants. Regular Second Appeal No. 81 of 1999 -15- In view of the above, the findings arrived at by the learned lower Courts that the order of dismissal passed by Commandant, 13th Battalion, PAP, Jalandhar Cantt. being illegal having not been passed by Inspector General of Police, cannot be upheld. These findings are, accordingly, reversed. Resultantly, the appeal is allowed, judgment and decrees passed by the Courts below are set aside and the suit of the plaintiff-respondent is dismissed. No costs. ( T.P.S. MANN ) May 02, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO