In the High Court of Punjab and Haryana at Chandigarh R.S.A. No. 1932 of 2009 Date of decision: May 08, 2009 State of Haryana and others .. Appellants Vs. Krishan .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mrs. Naveen Malik, Addl. A.G. Haryana. A.N. Jindal, J This regular second appeal is directed against the judgment and decree dated 24.1.2009, passed by the learned District Judge, Jind, dismissing the appeal against the judgment and decree dated 30.4.2007 passed by the learned Additional Civil Judge (Sr. Division), Jind, whereby the suit filed by the plaintiff-respondent (herein referred as the plaintiff) for declaration with a consequential relief was decreed. The plaintiff along with 43 others was appointed as a Constable in Police department, on regular basis, by the Superintendent of Police, Jind and he joined service on30.4.1992. The appointment of the plaintiff was made after following the procedure. However, after transfer of the Superintendent of Police, who had appointed the plaintiff and others, the successor Superintendent of Police, started harassing all the 44 Constables including the plaintiff, appointed by his predecessor. He wanted to terminate their service, in order to accommodate his own men. The case set up by the plaintiff is that all the appointed constables, were put to physical test, and out of them 12 Constables were ordered to be discharged. Most of the Constables, whose services were terminated, were ordered to be reinstated by this Court in exercise of writ jurisdiction. The case set up by the plaintiff is that illegal methods were used by the subordinate officers under orders of the Superintendent of Police to terminate their services. In order to achieve this object false entries about his absence from duty were recorded though he was not absent. On R.S.A. No. 1932 of 2009 -2- *** the basis of the entries he was discharged on 2.7.1992 under Rule 12.21 of the Punjab Police Rules, 1934, without giving opportunity of hearing. The plaintiff challenged the order of discharge, by invoking the writ jurisdiction of this Court. However, the writ was ordered to be dismissed by the Hon'ble Single Judge. In the LPA, the plaintiff was allowed to withdraw his petition to avail his remedy of civil suit. In view of dispute on facts liberty to that effect was granted. The defendants contested the suit, by raising a plea that the suit was not competent, in view of dismissal of the writ petition. On merits, it was pleaded, that the order passed under Rule 12.21 of the Punjab Police Rules, 1934, in case of a temporary Constable, was not open to challenge. A plea was also taken that the suit was barred by limitation. The learned courts below have recorded a concurrent finding of fact, holding that the order dated 3.7.1992 was illegal, null and void and not binding on the rights of the plaintiff, in any manner and thus he was held entitled to reinstatement with consequential benefits. The other issues, the onus of which was on the defendant- appellant (herein referred as 'the defendant') were decided against the defendant for want of evidence and having been not pressed. The learned Addl. Advocate General Haryana, contends that the appeal raises the following substantial question of law :- “Whether it was obligatory upon the Superintendent of Police to afford a personal hearing to the plaintiff in view of the fact that the impugned order dated 3.7.1992 being stigmatic order passed on account of his absence from duty and whether it could be passed under Rule 12.21 of the Punjab Police Rules?” The learned Addl. Advocate General, Haryana, in order to gain observations in his favour on the substantial question of law contends, that the power under Rule 12.21 of the Punjab Police Rules are exercised by the Superintendent of Police on subjective satisfaction. Once the R.S.A. No. 1932 of 2009 -3- *** Superintendent of Police, on the basis of record of the police officials, formed an opinion, that the Constable was not likely to become good police official, an order under Rule 12.21 of the Punjab Police Rules could be passed. The Civil Court cannot interfere with such order. The plea raised by the learned Additional Advocate General, Haryana is not tenable. There is no dispute with the fact that Superintendent of Police after forming an opinion that the plaintiff could not be a good police official, discharged him and it was only on the basis of his subjective satisfaction. But this proposition could not be applied to the peculiar facts and circumstances of the present case. The plaintiff has successfully proved, by leading evidence, that order of discharge was based on mala-fides on specific charge of misconduct i.e. absence from duty, therefore, both the courts reached the rights conclusion that the discharge on the basis of the absence from duty being a stigmatic order, it was incumbent to hold departmental enquiry particularly when the allegations levelled were specifically denied by levelling serious allegations of mala fide. The facts and circumstances further reveal that charge with regard to absence of few hours was obviously under the instructions of the Superintendent of Police for grinding his own axe and also to axe the bread of those poor police officials at the grass root. The learned courts below in view of the facts and circumstances explained above, were right in coming to the conclusion that the services of the plaintiff could not be dispensed with in exercise of powers under Rule 12.21 of the Punjab Police Rules without holding departmental enquiry on the allegations of misconduct. The substantial question of law raised does not arise for consideration in this case. No merit. Dismissed. May 08, 2009 (A.N. Jindal) deepak Judge