REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 29, 2010 State of Haryana and another .....Appellants VERSUS Dharambir Singh ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sunil Nehra, Sr.DAG, Haryana, for the appellants. Mr. S.K.Garg Narwana, Advocate, for the respondent. **** RANJIT SINGH, J. Being unsuccessful before the Trial Court as well as the first Appellate Court, the State has filed this appeal to challenge the impugned judgment through which the order of discharge of respondent-Constable Dharam Singh has been set-aside. Respondent-plaintiff had challenged the order of his discharge not on the ground that this was done without justification but on the ground that it was a motivated action taken with malice on change of Senior Superintendent of the Police of the District. REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 2 }: Respondent-plaintiff was appointed as Constable by S.P., Jind, and he joined the service on 30.4.1992. As per the respondent- plaintiff, his appointment was after following due process. The S.P., who had made this appointment was transferred on 3/4.5.1992 and on his place one Sh.B.K.Sinha joined as S.P. New S.P. started terminated the services of the Constables appointed by his predecessor statedly with an aim to accommodate his own persons. To substantiate this aspect, the respondent-plaintiff would point out that the new S.P. first directed that all the Constables appointed should be made to undergo a fresh physical examination. On this basis, he ordered discharge of 12 constables in May 1992 itself. It is pointed out that all these 12 Constables were subsequently reinstated, as per the directions of this Court. It is averred that those who could not be eased out in the aforesaid manner, were dealt with differently to achieve the same goal. It is stated that SI Nathu Ram and Head Constable Balbir Singh were asked to mark the remaining Constables like the respondent-plaintiff as absent so that they could be discharged on that ground. As per the respondent-plaintiff, he never remained absent but was marked as such and accordingly was discharge from service by invoking Rule 12.21 on 3.7.1992. The record would show that in all 5 to 6 Constables were so discharged by showing them absent. Respondent-plaintiff challenged the order of discharge by filing a Civil Writ Petition before this Court, which was dismissed. Against this, he filed a Letters Patent Appeal. The same, however, was got dismissed as withdrawn with liberty to approach the Civil Court. While granting this liberty, the L.P.A Bench had observed that REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 3 }: the Civil Court will not be swayed by any finding recorded by Single Judge of this Court while dismissing the writ petition. Respondent-plaintiff accordingly filed a civil suit, challenging the order of his discharge. Pleading that the order was passed on wrong facts and with malafides, it was also pleaded that the order being on account of absence was passed without affording any opportunity of hearing and was a non-speaking order and, thus, could not be sustained. The appellants defended the suit. A joint written statement was filed raising number of preliminary objections. It was admitted that respondent-plaintiff was appointed as Constable on temporary basis. It is further stated that 43 Constables were recruited during the tenure of S.P. Rao Hari Singh and upon taking over by the new S.P., these 43 constables were put to medical re-examination pursuant to the orders of D.I.G., Hisar Range. 12 constables were accordingly discharged as they failed in physical examination and 3 out of these were later taken back into service as per the directions of the High Court. The order of discharge of respondent-plaintiff, however, is justified being valid and legal and reference is made to the order passed by the High Court while dismissing the writ petition. On the basis of pleadings, the following issues were framed:- “1. Whether the impugned order dated 3.7.92 is liable to be declared illegal, null and void and not binding upon the rights of plaintiff in any manner? OPP 2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled to consequential relief of REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 4 }: reinstatement in service alongwith monetary benefits? OPP 3. Whether the plaintiff has no locus standi to file and maintain the present suit? OPD 4. Whether the suit is barred by limitation? OPD 5. Whether suit is not maintainable? OPD 6. Whether this court has no jurisdiction to entertain and try the present suit? OPD 7. Relief.” Issue Nos.1,2 and 7 were decided in favour of the respondent-plaintiff whereas Issue Nos.3 to 6 were decided against the appellants. The suit was accordingly decreed. Against this, the State filed an appeal, which was also dismissed on 24.1.2009 and accordingly the State has filed this Regular Second Appeal. When after notice of motion, the Regular Second Appeal came up for hearing on 18.1.2010, the counsel for the respondent pointed out that five other Constables who were discharged from service like the respondent-plaintiff had also filed the civil suit, which were allowed and the matter had reached this Court in Regular Second Appeals and all those orders passed by the Trial Court and by the first Appellate Court were upheld. As per the counsel, the case of the respondent-plaintiff being similar/identical, should not receive any different treatment and accordingly prayed that the appeal filed by the State be dismissed. State counsel, on the other hand, without disputing this aspect had pointed out that the legal issues did not receive proper attention of the Court whlie dismissing the earlier Regular Second REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 5 }: Appeals and in support made reference to the cases of Sher Singh Vs. State of Haryana and others, 1994 (2) Recent Services Judgments 412 and State of Punjab and Ors. Vs. Rajesh Kumar, 2007 (1) S.C.T. 459, to urge that while directing discharge of a Constable under Rule 12.21 of the Punjab Police Rules, no opportunity of hearing was needed as it was not a punitive order, which was so construed while upholding the impugned judgments in the R.S.As in respect of remaining Constables, reliance on which was placed by the counsel for the respondent-plaintiff. The order passed in R.S.A. No. 1903 of 2009, decided on 6.5.2009 is placed before me and a perusal of the same would show that the order of discharge was considered as a stigmatic order and it was viewed that the same could not have been passed without holding any enquiry. Counsel appearing for respondent-plaintiff in the said R.S.A had made reference to number of judgments to say that the order of discharge was vitiated due to manifest error of law. State counsel, by referring to the cases of Sher Singh and Rajesh Kumar (supra), would urge that the Superintendent of Police could validly discharge the Constable plaintiff from service at any time within three years of his entry even on a specific allegation of misconduct. This issue had earlier received consideration by this Court and it was viewed that difference between motive and foundation for passing the order of discharge is required to be understood. Reference here can be made to the case of State of Punjab and Ors. Vs. Balbir Singh, JT 2004 (7) SC 383, where it is so observed that the motive and foundation of the order of discharge are the true tests to find out its actual nature. A Constable who is found REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 6 }: unlikely to prove an efficient police official may be discharged within three years of enrollment, even if he commits a serious misconduct during that period and a fact finding enquiry is conducted for the limited purpose to assess as to whether he is a fit person for the police service or is unlikely to prove an efficient police official. Where such conclusion are the motive for his discharge, but not the foundation, it will not cast a stigma unless the misconduct is reflected in the order of discharge. It was held that the order of discharge simpliciter could not be termed as punitive in nature, attracting Articles 14 and 311 of the Constitution of India. In Radhey Shyam Gupta Vs. U.P. State Agro Industries corporation Ltd. And another, (1999) 2 SCC 21, it was observed that there are two lines of cases which deal with this question. In certain cases of temporary servants and probationers, the Court has taken a view that if an exparte enquiry or report is the motive for the termination order, then the termination is not to be called punitive merely because the principles of natural justice have not been followed. The second line of cases are where the Court has held that the facts revealed in enquiry are not the motive but the foundation of the termination of services of the temporary servants or probationers and hence, punitive and, thus, the principles of natural justice would have to be followed. Reference in this regard can be made to the ratio of law laid down in Parshotam Lal Dhingra Vs. Union of India, 1958 SCR 828, Shyam Lal Vs. State of U.P., (1955) 1 S.C.R. 26, Champaklal Chimanlal Shah Vs. Union of India, AIR 1964 SC 1854 and Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593. REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 7 }: Faced with the above position, the counsel for the respondent-plaintiff, forthrightly submits that he would not press for testing the impugned order on this ground but would point out that as a matter of fact, the appellants were unable to establish before the Courts that the respondent-plaintiff was ever absent and hence, on the basis of the finding, the impugned order cannot be allowed to be sustained. The counsel would justifiably point out that number of constables were discharged in this manner by showing them as absent, which would indicate that this action was taken not on account of absence as such, but was a motivated action to falsely show the Constables as absent to ultimately discharge them. This would be an action nothing but actuated with motive. The plea made on these lines can not be easily ignored. It would be interesting to notice the manner in which the respondent-plaintiff was shown as absent for a period of 11 hours and 35 minutes within two days. The first absence was from 8.30 PM on 1.7.1992 to 5.40 A.M on 2.7.1992. This absence was during the night period. The second absence is from 12.05 P.M. to 2.00 P.M. On 2.7.1992. Again, the respondent-plaintiff was shown absent from 4.00 PM to 4.30 PM on 2.7.1992 itself. In this manner, he was shown absent for 11 hours 35 minutes in two days in a broken spells. What would be the aim of doing this? It appears that efforts were being made to show the respondent-plaintiff absent from duty and, thus, the allegation of malice as made against the authorities and as pleaded would appear to have been made out. In addition, it has been observed by the Courts that the REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 8 }: appellants could not lead any cogent evidence to prove the absence as alleged. Since the appellants were asserting and relying upon the absence of the respondent-plaintiff, the burden was on them to prove this aspect. It is rightly observed that mere plea in the written statement would not be a substitute of cogent and reliable evidence. It was pleaded that certain officials had marked the respondent- plaintiff as absent from duty and one official was deputed to search for him besides other absentees. The said police officials were not produced or examined by the appellants. Even the entries made in the record to show the respondent-plaintiff as absent could not be proved in accordance with law. Some documents produced could not be proved and, thus, these were kept as marked documents, which could not be relied upon. Mr.Nehra, however, made laborious efforts to show that there was sufficient evidence to prove the absence of the respondent-plaintiff, which was not rightly appreciated and wrongly ignored by the Courts. As per the counsel, some of the record was destroyed, which could be so destroyed after expiry of two years. Even if this argument is accepted and the appellants wanted to produce any derivative evidence, they could do so only after taking permission of the Court to lead any secondary evidence in this regard. The Court did not feel convinced about the reasons for which the record was destroyed as the cases were pending in the Court of law when the record was destroyed. The Court rightly questioned as to how the report roznamchas (mark D2 to D8) were available and retained when allegedly the record had been destroyed without retaining photo copies or certified copies. Even if the copies of these REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 9 }: documents were sought to be exhibited, these could be done only by following procedure in accordance with law by taking permission to lead secondary evidence. Reference is made to the evidence given by Narain Singh (DW2), who produced the copies of these documents. During cross- examination, DW2 conceded that he had merely appended his signatures on the affidavit prepared by Assistant District Attorney in the office of S.P., Jind. He was unable to identify even the signatures of a person who had signed on the documents marked D2 to D8, being true copies. He admitted that these documents were neither prepared by him nor the same were prepared in his presence. He also could not prove if the documents had remained in his custody ever. When questioned as to from where did he get the true copies of these documents, if these were destroyed, he could not answer and showed his ignorance. These documents, thus, were rightly ignored and could not legally and validly be taken into consideration as evidence. Exhibit D9/A was another document produced by DW2 but was not relied upon by the Court on the ground that there was no despatch number, date, month or the year and on the ground that he had no personal knowledge about either the absence or the fact that who had prepared this document. Mere production of a document, would not mean that the documents stood proved. The appellants failed to prove the contends of the documents or Exhibit D9/A, though these may have been produced in evidence. In order to succeed, the appellants were required to prove the documents and mere production was not enough. The combined effect of all the REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 10 }: discussion is that the appellants could not sufficiently prove the absence and this aspect further is to be viewed in the background of the allegations and assertion made by the respondent-plaintiff that this mode and method was adopted just to ease out the Constables who were earlier enrolled by S.P. of the District. The fact that the case of five identically placed Constables was also allowed by the Courts and the judgments have been upheld leading to their reinstatement, can also not be ignored. Without touching the question of law in regard to the nature of the order passed as to whether it is simpliciter in nature or a punitive one, I am of the view that the appellants failed to substantiate the factual aspect to show and prove absence and, thus, no case for interference in the Regular Second Appeal is made out. It may not be out of place to mention here that liberty to file the civil suit was granted by the L.P.A. Bench of this Court only with a purpose to enable the respondent-plaintiff to prove this factual issue, when he had pleaded in the writ petition that he was not absent. The respondent-plaintiff was able to show and substantiate his plea whereas the appellants could not show and prove his absence. Once the very basis goes, there would not be any need to see if the absence was a motive or foundation of the order. The Regular Second Appeal is accordingly dismissed. At this stage, the learned State counsel submits that the issue of grant of back wages has also not been rightly considered and adjudicated. As per the counsel, the respondent-plaintiff could be held entitled to back wages only if he could show that he was not gainfully employed. The counsel for the respondent-plaintiff, REGULAR SECOND APPEAL NO.2083 OF 2009 (O&M) :{ 11 }: however, would submit that the other Constables who were similarly discharged have been reinstated with full back wages. I am of the view that the back wages for the period the respondent-plaintiff had remained out of service may depend upon his gainful employment during the concerned period. Let the respondent-plaintiff file a necessary affidavit to say that he was not gainfully employed during all this period and issue of his entitlement to wages for this period may be decided by the appellants in accordance with law. In case, any adverse order is passed against the respondent-plaintiff, he would be at liberty to challenge the same in accordance with law. April 29, 2010 ( RANJIT SINGH ) khurmi JUDGE