Regular Second Appeal No. 499 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 499 of 1990 Date of decision: May 10, 2010 State of Punjab ...Appellant Versus Balwant Rai ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Ms. Ambika Luthra, AAG, Punjab for the State. Mr. Rohiteshwar Singh, Advocate for the respondent. RANJIT SINGH J. Respondent-plaintiff was serving as Constable with Punjab Police, Gurdaspur. He was dismissed from service on 11.10.1985. This order was passed by the Superintendent of Police, Gurdaspur. The respondent-plaintiff filed a suit against the same seeking declaration that the order dated 11.10.1985 was illegal, null and void. Having been enrolled in the year 1976, the respondent- plaintiff was charge sheeted for being absented for a period of 4 months, 13 days, 15 hours and 30 minutes. The departmental inquiry was held against him and the impugned order was passed. The suit was filed challenging the order on the ground that he was not supplied the relevant documents, as such there was denial of opportunity for preparation of effective defence. It was also urged Regular Second Appeal No. 499 of 1990 2 that punishing authority had relied on some extraneous matters and had also ignored the reliable medical evidence of the expert without much justification. Plea also was that the order was passed by the officerwho was also not empowered to do so, besides pleading that his absence was regularised by sanctioning leave. The State had filed the written statement denying the pleas raised and pleaded that the order of termination was validly passed after due inquiry. Trial proceeded on the following issues:- 1. Whether the impugned order of dismissal is illegal, null and void and in violation of service rules as alleged? OPP 2. Whether the plaintiff is entitled to the declaration prayed for?OPP 3. Relief. The suit was dismissed by the trial Court against which the respondent-plaintiff filed an appeal. During the appellate stage, he filed an application under Order 41 Rule 27 CPC for permission to lead an additional evidence, which is a copy of gazette notification dated 04.02.1985 published in the Punjab Government Gazette dated 15.02.1985 showing that Gurdip Singh Mann was promoted from the rank of Deputy Superintendent of Police to officiating Superintendent of Police. It was also disclosed in the said notification that he was posted as Additional Superintendent of Police, Gurdaspur where he had assumed the charge on 02.01.1985. Gurdip Singh Mann had passed the order of dismissal while he was working as Superintendent of Police (Headquarters), Gurdaspur. The Regular Second Appeal No. 499 of 1990 3 permission to lead this document as additional evidence was allowed and the notification was taken on record. Thereafter, the counsel for the parties were heard and the view was taken that the impugned order was passed by an officer who was not lawfully vested with the power to pass the order. The order was accordingly termed as void. It was pleaded on behalf of the appellant-State, as is pleaded before this Court in this Regular Second Appeal, that the authority vested in Gurdip Singh Mann as Superintendent of Police (Headquarter) was co-extensive with the authority of Superintendent of Police. The First Appellate Court after making reference to various provisions came to conclude that power to appoint and dismiss was provided under Section 7 of the Police Act. In this background, the Court went ahead to see whether Gurdip Singh Mann was working as Superintendent of Police within the meaning of Sections 1 and 7 of the Police Act. Reliance was placed on RSA No. 372 of 1986 titled as State of Punjab etc. versus Sital Singh decided on 15.01.1988. The SLP against the judgment was also dismissed by the Supreme Court. In this case also the order was passed by Superintendent of Police, who had been so appointed by promotion from the rank of Deputy Superintendent of Police. The order of dismissal passed by such Superintendent of Police was set aside being void. The relevant observation in this regard as has been noticed in the impugned order is as under:- “ I am of the view that the Additional Superintendent of Police cannot be equated with the Superintendent of Police who is incharge of the district and in view of the Act Regular Second Appeal No. 499 of 1990 4 and Rules stated above, he is the executive head responsible for discipline etc., and is the appointing authority. I further find support of my above view from the judgment in State of West Bengal's case (supra) wherein it has been observed that the Superintendent of Police would not include Additional Superintendent of Police after interpreting Regulation 39 of Bangal Police Regulations which is almost in the same language as Rule 1.8 of the Rules. The fact that Additional Superintendent of Police is subordinate of Superintendent of Police had not been disputed before me.” The facts in the present case were identical and accordingly same view was taken by the First Appellant Court. It is further observed that there is nothing on record to show that Gurdip Singh Mann was appointed to discharge the duties of the Superintendent of Police, Gurdaspur as the Executive Head of District police and accordingly on the basis of authority relied upon and referred to above, the appeal filed by the respondent-plaintiff was allowed. Nothing substantial is stated to challenge this finding returned by the First Appellate Court, This would be enough to uphold the finding returned by the First Appellate Court without going into any other submissions that may arise. I have been informed that during the pendency of this Regular second Appeal, the respondent-plaintiff has breathed his last on 25.02.2008 and the present Regular Second Appeal is being defended by his LRs. The counsel would further submit that in view the pendency of the present case, the right of the LRs for grant of Regular Second Appeal No. 499 of 1990 5 family pension is also pending. The appellant had continued to service eversince the day his appeal was allowed by the First Appellate Court and has now died. There is no reason or cause made out for interference in the view taken by the First Appellate Court. The Regular Second Appeal is dismissed. There shall be no order as to costs. May 10, 2010 ( RANJIT SINGH ) rts JUDGE