R.S.A. No. 3802 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3802 of 2004 Date of decision: 4-8-2010 Ex. Constable Satpal Singh ......... Appellant Vs State of Punjab and others .........Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. Harinder Sharma, Advocate, for the appellant Mr. P.C.Goyal, Additional Advocate General, Punjab HARBANS LAL, J. This appeal is directed against the judgment/decree dated 1.6.2004 passed by the court of learned District Judge, Kapurthala whereby he dismissed the appeal preferred by the plaintiff Ex. Constable Satpal Singh against the judgment/decree dated 18.7.2003 rendered by the court of learned Additional Civil Judge (Senior Division), Sultanpur Lodhi vide which he dismissed the suit. The minimal facts are that the plaintiff was appointed as Constable in the Punjab Armed Force on 4.8.1989. In the year 1992, he was transferred to Commando force and was posted at Bahadurgarh, Patiala Headquater of 2nd Commando Battalion. He completed the Commando course in the year 1994. Due to marriage of his sister fixed for 3-4-1994, he applied for 5 days leave. He was granted leave for only one day. He proceeded on leave on 2.4.1994. He was to join his duty on 4.4.1994, but R.S.A. No. 3802 of 2004 2 after performing the marriage of his sister, he reported for duty on 7.4.1994 to Sub Inspector Dilbag Singh, Lines Officer who did not allow him to join without orders of the Commandant. He was allowed to join duty on 12.5.1994. He was treated absent from duty from 4.4.1994 to 12.5.1994 and departmental enquiry was ordered against him. As alleged, the charge-sheet was defective and the same was not accompanying list of documents with the help of which the charges were to be proved. That he was not supplied with the copies of the documents which were relied upon during the departmental proceedings. He was also not allowed the help of a co-worker or an Advocate during the course of enquiry and copy of the preliminary enquiry report was also not supplied to him. On conclusion of the enquiry proceedings, the Commandant issued show cause notice to the plaintiff. Ultimately, the penalty of dismissal was imposed upon him treating his period of absence as non-duty period. He filed an appeal and a revision against the impugned order, but the same were dismissed. The orders passed by the appellate authority and revisional authority were illegal and non- speaking and that the enquiry report was not supplied to him alongwith the show cause notice and that he was condemned unheard. On these allegations, the suit was filed for declaration to the effect that the orders dated 3.5.1996, 16.1.1997 and 8.5.1998 conveyed on 26.5.1998 are illegal,null and void and ineffective upon the rights of the plaintiff with consequential relief of mandatory injunction directing the defendants to reinstate the plaintiff in service as constable with continuity of service and grant him back wages with interest at the rate of 10% per annum from the R.S.A. No. 3802 of 2004 3 due date till full and final payment. The defendants in their written statement while controverting the allegations in the plaint alleged that the plaintiff was a habitual absentee; that he remained absent from 4.6.1993 to 11.8.1993 for 68 days, from 6.9.1993 to 4.3.1994 for 180 days, from 12.12.1993 to 4.1.1994 for 20 days and then from 4.4.1994 to 12.5.1994 for 38 days and was awarded punishment for remaining absent from duty from time to time and that four departmental enquiries are still pending against him regarding his absence from duty; that his work and conduct was not satisfactory and that full opportunity of being heard was granted to him during the enquiry. On the pleadings of the parties, the following issues were framed by the learned trial court:- 1. Whether the order dated 3.5.96 dismissing the plaintiff from service is illegal, null and void?OPP 2. Whether the order dated 16.1.97dismissing the appeal of the plaintiff by DIG of Police Commando Bahadurgarh, Patiala is illegal, null and void?OPP 3. Whether order dated 8.5.98 dismissing representation is illegal, null and void?OPP 4. Whether the plaintiff is entitled to seek the relief of mandatory injunction directing the defendants to reinstate the plaintiff with continuity of service and grant of back wages with interest?OPP 5. Whether the suit is not maintainable in its present form?OPD 6. Whether the plaintiff has no cause of action to file the instant R.S.A. No. 3802 of 2004 4 suit?OPD 7. Whether the notice u/s 80 CPC not served upon the defendants?OPD 8. Relief After examining the evidence and hearing the learned counsel for the parties, the learned trial Court dismissed the suit as noticed at the outset. Feeling aggrieved therewith, the plaintiff went up in appeal, which was dismissed by the court of learned District Judge, Kapurthala as noticed hereinbefore. Being dissatisfied therewith, the plaintiff has preferred this appeal. The following substantial questions of law arise for determination in this appeal:- 1. Whether the action of the defendants-respondents in dismissing the appellant from service by taking into consideration the previous conduct of the plaintiff which was not a part of the charge-sheet can be said to be just and fair? 2. Whether the disciplinary proceedings against the appellant in violation of the provisions of Rule 16.2 of Punjab Police Rules, 1934 are liable to be vitiated? I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. On behalf of the appellant, Mr. Harinder Sharma, Advocate, submitted with a good deal of force that the courts below have gravely erred in upholding the order of dismissal passed by the defendants-respondents by taking into consideration the appellant's past record which had never been R.S.A. No. 3802 of 2004 5 the part of the charge-sheet and furthermore, the departmental authorities on the basis thereof have already imposed punishment. Thus, the punishment of dismissal from service amounts to double jeopardy. It is further submitted that while conducting the departmental enquiry against the appellant, the respondents-authorities acted arbitrarily and without following the procedure prescribed for the departmental enquiry. The appellant was neither supplied any documents relied upon by the respondents-authorities in support of their case, nor he was allowed to inspect such record. Shri Darshan Singh the enquiry officer was of the rank of Sub Inspector who acted himself as the Enquiry Officer as well as the presenting officer to prove the charge framed against the appellant. In these premises, the impugned orders are liable to be set aside. He has sought to place abundant reliance upon the State of Mysore Vs. K.Manche Gowda AIR 1964 Supreme Court 506, State of Haryana Vs. Mohinder Partap 1997(1) Recent Services Judgments 727, and Mahipat Versus The State of Haryana and others 1994(3) Recent Services Judgments 132. To tide over these submissions Mr. P.C.Goyal, learned Additional Advocate General, Punjab on behalf of the defendants- respondents pressed into service that in Mohinder Paul Ex-Constable Vs. State of Punjab and others 2003(3) Recent Services Judgments 257 the petitioner was a habitual absentee. In the enquiry, he was found guilty of the charges levelled against him. The past record in relation to his absence from duty was taken into consideration while passing the dismissal order by the punishing authority. It was held by this court that the petitioner having R.S.A. No. 3802 of 2004 6 never raised the point with regard to the past record before the departmental authorities cannot be permitted to raise the same for the first time in the court. In the present one also the plaintiff did not raise such point before the said authorities. So, the plaintiff cannot raise this plea for the first time before the Civil Courts. I have given a deep and thoughtful consideration to the rival contentions. In K.Manche Gowda's case (supra) it has been ruled by the Apex Court as under:- “ Under Art. 311(2) a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment; he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment is mainly based upon the previous record of the Government servant and that is not disclosed in the notice, it would mean R.S.A. No. 3802 of 2004 7 that the main reason for the proposed punishment is withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. What the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know that period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction R.S.A. No. 3802 of 2004 8 of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. The Court cannot accept the doctrine of “presumptive knowledge” or that of “purposeless enquiry”, as their acceptance will be subversive of the principle of “reasonable opportunity”. Therefore, it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.” In Mahipat's case (supra) while awarding the punishment of dismissal, the authority did take into consideration that the petitioner was a habitual absentee from duty and was earlier punished six times according to the record. It was held that there is nothing on the record that the petitioner was ever made aware of the fact that while awarding the punishment of dismissal, his previous record shall be taken into consideration and that being so, the action is violative of mandatory provisions of rule 16.24 (1) of the Punjab Police Rules, 1934 and the order is unsustainable. In Mohinder Partap's case (supra) the rule applied in Mahipat's case(supra) was followed by this Court. Adverting to the instant one, in the impugned order Ex.P-1 dated 3.5.1996, it has been observed that 17 years approved service R.S.A. No. 3802 of 2004 9 of Constable Satpal Singh (referring to the plaintiff) has already been forfeited and that the absence period of 224 days has already been considered as non-duty period and four punishments have already been inflicted and he has remained under suspension from 23.1.93 to 13.9.93 and two more departmental enquiries are pending against him. It clearly indicates that the past record of the plaintiff-appellant was actively taken into consideration by the punishing authority while passing the impugned order, though in the show cause notice Ex.D-2/A the above referred record has not been disclosed at all. In such circumstances, the question arises as to from where the plaintiff would have presumed that his bad record would be taken into account by the punishing authority. It appears that the punishment inflicted vide Ex.P-1 was mainly based upon the previous record, which was withheld from the knowledge of the plaintiff. If the record pointed out above had been brought to the notice of the plaintiff, he in all probabilities would have taken the pains to explain it. In his explanation, he would have given certain mitigating circumstances or some other explanation as to why the earlier punishments were inflicted upon him or that subsequent to these punishments, he had served to the satisfaction of the authorities concerned till the time of the present enquiry. Besides this, he may have come forward with many other explanations. The thing is that it is to be seen whether he has been given an opportunity to explain the past record being taken into consideration while passing the impugned order. The plaintiff having not been afforded the stated opportunity, he has been condemned unheard with respect to his past record, which seems to have R.S.A. No. 3802 of 2004 10 sufficiently weighed with the mind of the punishing authority, while passing the impugned order. Rule 16.2 of the Punjab Police Rules reads as under:- “16.2 Dismissal. (1) Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension. (2) If the conduct of an enrolled police officer leads to his conviction on a criminal charge and he is sentenced to imprisonment, he shall be dismissed: Provided that a punishing authority may, in an exceptional case involving manifestly extenuating circumstances for reasons to be recorded and with the prior approval of the next higher authority impose any punishment other than that of dismissal. Provided further that in case the conviction of an enrolled police officer is set aside in appeal or revision, the officer empowered to appoint him shall review his case keeping in view the instructions issued by the Government from time to time in this behalf. (3) When a police officer is convicted judicially and dismissed, or dismissed as a result of a departmental enquiry, in consequence of corrupt practices, the conviction and dismissal and its cause shall be published in the Police Gazette. In other R.S.A. No. 3802 of 2004 11 cases of dismissal when it is desired to ensure that the officer dismissed shall not be re-employed elsewhere a full descriptive roll, with particulars of the punishments, shall be sent for publication in the Police Gazette.” It has been manifested in the language of this rule that while passing the dismissal order under this rule, regard shall be had to the length of service of the delinquent employee as also his claim to pension. As noted before, in the impugned order Ex.P-1 itself, it has been mentioned that 17 years approved service of the plaintiff has already been forfeited. It is thus, inferable that he has put in a long service, which fact has not been taken into consideration, while passing the impugned order. Thus, the punishing authority has acted in utter violation or derogation of the mandatory provisions of Rule 16.2 ibid. In Mohinder Paul Ex Constable's case (supra) as mentioned in paragraph 20 of the judgment, the petitioner had never appeared before the disciplinary authority, nor he had filed reply challenging the findings recorded in the enquiry report. It was held that the appellate authority has also noticed that the petitioner had been absent from duty wilfully for a total period of 4 months 14 days and 11 hours and 15 minutes. This point was not argued before the Appellate Authority or the Revisional Authority, whereas in the case at hand, the plaintiff had approached the Deputy Inspector General of Police, Commando (Admn.&Ops.) BHG, Patiala who had dismissed his appeal vide order Ex.P- 2. Thereafter, he filed the revision, which also met the same fate vide order Ex.P-3. Furthermore K. Manche Gowda's case does not say that it is R.S.A. No. 3802 of 2004 12 obligatory upon the constable to raise a contention before the Appellate or Revisional Authority that his past record without disclosing it in the show cause notice served upon him has been taken into consideration by the punishing authority. As Article 141 of the Constitution of India postulates, the rule laid down by the Hon'ble Supreme Court in K. Manche Gowda's case is binding on this Court. Thus to my mind, the defendant-appellant cannot derive any mileage from the case of Mohinder Paul Ex Constable case (supra). In view of the above discussion, both the substantial questions of law are decided against the defendants-respondents and in favour of the plaintiff-appellant. At this juncture, Mr. P.C.Goyal, learned Additional Advocate General, Punjab has shown the photo copy of the affidavit dated 29.8.2009 of the plaintiff-appellant with the submission that affidavit has been given by the plaintiff-appellant in the department, which has not passed any order on its basis. This Photostat copy is taken on record. The relevant part of the same reads as under:- “ I Satpal Singh No.2-Commando 280, son of S. Swaran Singh resident of village Kalru, Tehsil Sultanpur Lodhi, District Kapurthala (Punjab) India, do hereby solemnly affirm and declare as under:- 1. That the deponent submits that his case is pending before the Hon'ble High Court as RSA No. 3802 of 2004 and is admitted. 2. That the deponent submits that he will not claim any R.S.A. No. 3802 of 2004 13 back wages from the department and he foregoes all the back wages for the period he remained absent, his services be reinstated as commando and his seniority be remained as it is from the date of his appointment i.e. 4.8.1989. 3. That the deponent prays that he be kindly reinstated while keeping his seniority intact from the date of his appointment.” In view of the preceding discussion, the impugned judgments/decrees recorded by both the courts below are hereby set aside and suit of the plaintiff is partly decreed for declaration to the effect that the orders impugned are illegal, null and void and ineffective upon the rights of the plaintiff, who shall be entitled to all consequential service benefits including seniority but not the back wages. In the peculiar circumstances of the case, the parties are directed to bear their own costs. (HARBANS LAL) JUDGE August 4, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No