Civil Writ Petition No. 13306 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 13306 of 1992 Date of decision: 25.08.2011 UGC Dilawar Singh ...Petitioner Versus The State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Vivek Sharma, Advocate, for the petitioner. Mr. Sunil Nehra, Sr. DAG, Haryana, for the State. **** RANJIT SINGH J. The petitioner has impugned the order dismissing him from service, which was passed on 28.09.1991 (Annexure P-6). Being a police employee, the petitioner is accused of an act of indiscipline, which led to order of his dismissal from service without holding any inquiry. It may appear strange to notice that the petitioner was dismissed from service on more than one occasion and each time he was protected by this Court. Having been recruited as Constable on 07.10.1970, the petitioner was promoted to Upper Grade Constable in October 1988. While serving on deputation at Sales Tax Barrier Mandana, District Mahindergarh with Excise and Taxation department, the impugned order dismissing the petitioner from service was passed. The background, which led to passing of this order, apparently is the Civil Writ Petition No. 13306 of 1992 2 petitioner being an elected President of the Association formed in the name of Haryana Police Association (Sangathan). This Sangathan was formed in the year 1979 and members included all Constables, Head Constables, Assistant Sub Inspectors, Sub Inspectors and Inspectors. As per the averment in the petition, the Government of India had set up Dharamvir Commission in the year 1979 to give a report on the working and the state of affairs of the police force in the country. The Commission gave its report in 1980. Besides other recommendations, the Commission had recommended for grant of approval and formation of these associations in various states. Pursuant thereto, 14 states in the country had permitted police to form Association. The Sangathan noticed above was also formed in the State of Haryana. The membership of the Association comprised of 53% of the total strength, which had increased to 90% at the time of filing for the writ petition. As averred in the writ petition, right from the inception of this Association, the petitioner was elected as President of the same. The petitioner claimed that being a President, he was instrumental in exposing corruption and nepotism both in the police service and in the Administration of Haryana State. The petitioner was, thus, able to contributed substantially to the welfare of the police employees. The petitioner avers that he had been submitting a charter of demand to his superiors. The demand included cutting down the excessive political interference in the police in Haryana. This is pleaded with reference to the situation in the year 1980/82 and 1990 when the police force was being used for political purposes in some of the Civil Writ Petition No. 13306 of 1992 3 constituencies during election. The demand also included that the recruitment of the Constables in the force should be by some neutral independent agencies as there was a great deal of political interference noticed. The Association had also demanded that duty hours of the police personnel should be about 8 hours in a day and the practice of deputing Constables for domestic work and at farms or to drive private cars should stop. The Sangathan had further prayed for granting better pay and allowances and also for payment of cycle allowance, uniform allowance, uniform washing allowance etc. As per the petitioner, the political power in the State had always tried to suppress and curb the activities of the Sangathan. The Sangathan had even opposed the mal-practices during election where booth capturing by party in power was done by using police. The petitioner had further made reference to mal-practices and about the misuse of the police force and in this regard and has made reference to some of the instances. After having given the background, the petitioner has made reference to the reasons for which the impugned order came to be passed. The Constables and Head Constables had also resorted to press for demands as raised by the Sangathan. Because of this, the petitioner was seen as responsible and so was dismissed from service alongwith 350 other Head Constables and Constables under Rule 12.21 read with Article 311 (2) (b) without holding any inquiry. The persons, who were so dismissed from service had then directly approached the Hon'ble Supreme Court and their dismissal was set aside directing their reinstatement in the year 1984. Civil Writ Petition No. 13306 of 1992 4 The petitioner, thereafter, continued to fight for the Constables/Head Constables being President of this Sangathan. The respondent-State having failed to crush the Sangathan by all other means, chose to dismiss the petitioner and the General Secretary, Mohinder Singh from service. This time again the inquiry was dispensed with by invoking the provisions of Punjab Police Rules 16.24 (ix)(b) Article 311 (2)(b) of the Constitution of India. The order dismissing the petitioner was passed on 18.12.1990. The main reason to dismiss the petitioner was that he had formed the association and was trying to create dissatisfaction amongst the employees of the police force. This time, the petitioner filed Civil Writ Petition No. 1189 of 1991 before this Court and Division Bench admitted the said petition and stayed the operation of the order of dismissal on 23.01.1991. Copy of this order is on record as Annexure P-2. The petitioner claimed that he had always been trying his best to peacefully ameliorate the lot of the Haryana Police Sangathan. The petitioner on reinstatement was transferred to Police Station Sadar Narnaul and within six days was posted to Sales Tax Barrier in District Mahendergarh on deputation. The petitioner had then addressed a press conference on 26.09.2001. As per the petitioner, he only had expressed that despite their struggle for 12 years, the Government of Haryana had not recognised the Sangathan. The petitioner, thus, stated that he would make best efforts to ensure that the Sangathan is recognised. The petitioner also talked about political interference and politicization of Haryana police. The petitioner further admits to have Civil Writ Petition No. 13306 of 1992 5 spoken about the corruption prevalent in the police force of the State besides disclosing that policemen would stage the dharna in the Boat club at Delhi against the dismissal/discharge of a person on wholly extraneous and illegal grounds. While the petitioner was performing his duty at Sales Tax Barrier, he was suddenly summoned on 28.09.1991 ostensibly on the pretext of his transfer. When he appeared before respondent No. 4, he was handed over order dated 28.09.1991 again dismissing him from service by invoking Article 311 (2) (b) of the Constitution of India. Immediately thereafter, the petitioner was placed under arrest at his residence. The petitioner was informed on 03.10.1991 that he had been detained under National Security Act. Copy of the detention order as served to the petitioner, is annexed with the petition as Annexure P-7. The petitioner had remained under preventive detention upto 26.08.1992 when his detention order was quashed by this Court. Thereafter, the petitioner filed the present writ petition to impugn his dismissal. This writ petition was admitted and ordered to be heard with CWP No. 1189 of 1991 earlier filed by him. The operation of the impugned order for dismissal was also stayed on 30.09.1992. The net result of the position is that the petitioner has continued to serve the Police Department and has ultimately been allowed to superannuate on 31.07.2009. As already noticed above, the petitioner was dismissed from service for the first time on 18.12.1990. The operation of the order was stayed. While serving the department, the petitioner was again ordered to be dismissed on 28.09.1991, which he challenged Civil Writ Petition No. 13306 of 1992 6 before this Court through the present writ petition. At the time of arguments, counsel for the parities have brought to my notice that CWP No. 1189 of 1991 filed by the petitioner came up for hearing before this Court on 15.05.2011 and has been ordered to be dismissed as having become infructuous. As already noticed, the petitioner had impugned the order of his dismissal passed on 18.12.1990 through CWP No. 1189 of 1991. The reasons, for which this writ petition was dismissed as infructuous, as can be made out, are that the petitioner had continued to serve the department in view of the interim order passed by this Court staying the operation of that dismissal order. This Court on 23.01.1991, while admitting CWP No. 1189 of 1991 had passed the following order:- “ Admitted. To be heard with six months. Operation of the impugned order is stayed till further orders. At this stage, Mr. L.P. Sood, District Attorney, Haryana, accepts notice.” The background, in the manner in which the petitioner was subsequently dismissed on 28.09.1991, which is under challenge has already been noted. The operation of the second dismissal order passed on 28.09.1981 was also stayed on 30.09.1992. The present writ petition was ordered to be heard alongwith CWP No. 1189 of 1991 as can be seen from order dated 30.09.1992, which is as under:- “ Learned counsel for the petitioner contends that earlier the petitioner was dismissed from service vide Civil Writ Petition No. 13306 of 1992 7 order dated 18.10.1990, which is under challenge in CWP No. 1189 of 1991 and the operation of the impugned order of dismissal was stayed during the pendency of the said writ petition. Learned counsel contends that on the same ground on which earlier order of dismissal was passed against the petitioner, he has again been dismissed vide order dated 28.09.1991, which prima facie cannot be done when the employee has already been dismissed on the same charge and the said order of dismissal is under suspension during the pendency of the earlier writ petition. Admitted. To be heard with CWP No. 1189 of 1991. Operation of the impugned order is stayed.” Consequent to the interim orders passed by this Court on both occasions when the petitioner was dismissed, he had continued to serve the department and has been made to superannuate. The petitioner has been duly retired w.e.f. 31.07.2009. It is not disputed that the petitioner has been allowed pension and is in receipt of the same. It is also pointed out that CWP No. 1189 of 1991 was got dismissed as having become infructuous on a statement made by the State counsel. The obvious intention was that the petitioner had been made to retire and thereafter, the relationship of master and servant had come to an end. It appears that the respondents had viewed that the dismissal order could not be given effect to because of the interim order passed by this Court. In view of this factual and legal position, it can be taken that prayer made in this writ petition as well as in CWP No. 1189 of 1991 would be rendered infructuous. Once Civil Writ Petition No. 13306 of 1992 8 the respondents have allowed the petitioner to complete his normal tenure during which he has not given any cause of complaint, it may not now be very fair to go into the validity of the dismissal order, which was passed long ago in the year 1990-91. The petitioner has been allowed pension also, which he received from the last two years. Lest the effect of the order passed in CWP No. 1189 of 1991 dismissing the petition as infructuous is read in any manner to give effect to the order of dismissal, it may need to be clarified that once the petitioner was permitted to retire on superannuation, it can be construed that the effect of order of dismissal is not being intended to be given effect to. That being so, there would not be much need now to go into the challenge raised by the petitioner to these orders of dismissal passed on two separate occasion. Obviously the order of dismissal passed on 18.12.1990 was taken to be ineffective as otherwise the respondents would not have felt the need to pass another order of dismissal on 28.09.1991. A dismissed employee could not be dismissed again. While ordering dismissal of the petitioner on 28.09.1991, the respondents apparently had assumed the petitioner to be in service and thus, considered the order dated 18.12.1990 to be not operative. I may have to observe here that the respondents have not been very kind to the petitioner. Though the conduct of the petitioner in indulging in trade union type activities in police force is also not worth commendations. Such activities cannot be approved unless permission was granted to legally form Sangathan. The conduct of the petitioner in addressing press conference and stating what all he has disclosed certain would exceed the bonds of discipline expected Civil Writ Petition No. 13306 of 1992 9 to be maintained in a police force. The action was taken against the petitioner he being President of the Sangathan and the respondent- State, would not have taken kindly to his activities. The first order of dismissal was passed and this Court had stayed the operation thereof. That being the position, the respondents should have atleast approached this Court, if they wanted to pass any order of dismissal again, may be on the basis of some subsequent misconduct. Had the respondents done so, they could not have been seen to be over reaching the Court. They might have been successful in taking action against the petitioner for this indiscipline. Both the times, the petitioner was dismissed from service by invoking the provisions of Article 311 (2)(b) i.e. by dispensing with the inquiry. The move and the reason for acting against the petitioner being apparent the respondents could have proceeded against him by following the proper procedure. The grievance of the petitioner that the reason to dispense with the inquiry was not genuine and oblique, at this stage, may not be required to be gone into in view of the fact that the petitioner had been retired. Otherwise also, prima facie these may not appear justified. Since the respondents have permitted the petitioners to proceed on superannuation and has allowed pension to him, in my view, no need would arise to go into the challenge raised by the petitioner against the order of dismissal. Just to end the controversy for all times to come, it is made clear that the order of dismissal, which was passed against the petitioner on 18.12.1990 and 28.09.1991 be not given effect to by the respondents now as they have allowed the petitioner to proceed on superannuation and have allowed him pension. All is well that ends Civil Writ Petition No. 13306 of 1992 10 well. I think it should be in the best interest of all to bury this issue by forgetting it as bad dream once the petitioner has behaved thereafter. The writ petition is accordingly, disposed of. August 25, 2011 (RANJIT SINGH) rts JUDGE