R.S.A. No.4472 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.4472 of 2002 Date of Decision:22.07.2010 State of Punjab and others .....Appellants Vs. Darshan Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. P.C. Goyal, Additional Advocate General, Punjab for the appellants. None for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 5.6.2002 passed by the Court of learned District Judge, Bathinda whereby he dismissed the appeal filed by the State of Punjab and others against the judgment/ decree dated 19.12.1998 rendered by the Court of learned Civil Judge (Senior Division), Bathinda vide which he set aside the order of dismissal of the plaintiff from service with an observation that the defendants shall be at liberty to pass fresh order in accordance with Service Rules. The minimal facts are that the plaintiff was dismissed by defendant No.4 vide his order dated 8.2.1993 on account of his conviction by Shri A.S. Kathuria, Sub Divisional Judicial Magistrate, Phul. He was R.S.A. No.4472 of 2002 -2- released on probation by the said Court. He preferred an appeal against his dismissal to the Deputy Inspector General of Police, Ferozepur Range, who dismissed the same and conveyed to him vide letter dated 1.7.1994 where- against, he preferred revision to the Inspector General of Police, Punjab, which was also dismissed on 13.1.1995 and conveyed to the plaintiff on 25.2.1995. After his release on probation, the plaintiff again preferred an appeal to defendant No.2 but the same was rejected on 29.9.1997. That these orders are non-speaking ones and furthermore, no charge-sheet/ show cause notice was served upon him, nor regular inquiry was conducted nor his conduct was considered before passing the impugned order. He was never convicted on moral turpitude. On these allegations, the suit was filed for declaration to the effect that the order bearing endorsement No.1195- 1200 dated 8.2.1993 and further order passed by defendant No.3 vide which appeal of the plaintiff was dismissed on 1.7.1994 and conveyed on 25.2.1995 and further order dated 29.9.1997 rejecting his appeal are illegal and void. The defendants in their joint written statement have inter-alia pleaded that the impugned orders are legal and valid having been passed in accordance with rules. As alleged, no charge-sheet or show cause notice was required to be served as the order was passed in accordance with Punjab Police Rule 16.2 as amended in 1981. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the impugned order of punishment imposed by the defendants and the order passed in appeal are illegal, void and against the service rules applicable to the R.S.A. No.4472 of 2002 -3- plaintiff and therefore, liable to be set aside? OPP 2. Whether suit is bad for non-joinder of necessary parties? OPD 3. Whether the suit is barred by time? OPD 4. Whether suit of the plaintiff is not maintainable in the present form? OPD 5. Relief. After examining the evidence and hearing the learned counsel for the parties, the learned trial Court decreed the suit in the terms noticed at the outset. Feeling aggrieved therewith, the State of Punjab and others went up in appeal, which was dismissed by the Court of learned District Judge, Bathinda. Being undaunted and dissatisfied with the judgments recorded by both the Courts below, the State of Punjab and others have preferred this appeal. This case was adjourned from time to time for arguments, but none had been putting in appearance on behalf of the respondent despite the fact that this matter for hearing was also displayed on the net. However, I have heard the learned State Counsel appearing for the appellants, besides perusing the record with due care and circumspection. The following substantial question of law arises for determination: “Whether the punishing authority was obligated to take into consideration the conduct of the plaintiff leading to his conviction while passing the impugned order?” Mr. P.C. Goyal, learned Additional Advocate General, Punjab on behalf of the defendants- appellants has valiantly urged that both the R.S.A. No.4472 of 2002 -4- Courts below have overlooked the fact that the respondent was convicted, but released on probation and as such it squarely falls under Punjab Police Rule 16.2 because it cannot be inferred that the conviction is diluted, if the person concerned is released on probation. He further punctuated that the Courts below have lost sight of the fact that conviction is a disqualification of service as ruled in Karam Singh v. State of Punjab & Another , 1996 (1) Recent Services Judgments 900 and sequelly the findings returned by both the Courts below are liable to be reversed. I have given a deep and thoughtful consideration to these submissions. Initially, the plaintiff- respondent was convicted and sentenced under Section 304-A of the Indian Penal Code by the Court of learned Sub Divisional Judicial Magistrate, Phul as is being evidenced by Ex.P1, but on appeal, he was released on probation by the Court of learned Additional Sessions Judge. These facts have not been denied by the defendants- appellants. In Karam Singh's case (supra), the petitioner and others were charged for an offence under Section 302 read with Section 34 of IPC and also under Sections 323 and 324 IPC. The Sessions Court convicted the petitioner and others, but on appeal, the High Court set aside the conviction of the petitioner under Section 302 read with Section 304 and also under Section 324, but maintained the conviction under Section 323 and released him on probation. In that case, the Apex Court had altered the penalty of dismissal into one of removal from service. The specific observation made by the Apex Court in Karam Singh's case (supra) is that though he was acquitted of the offence of murder, he being a constable at the relevant time and being a disciplined member of the force, he was not R.S.A. No.4472 of 2002 -5- expected to participate in the commission of crime; instead he was expected to prevent the commission. In the case at hand, the plaintiff- respondent was convicted and sentenced under Sections 304-A/279/337 of IPC, and he was released on probation of good conduct by the Appellate Court. Thus obviously, there is a subtle distinction between Karam Singh's case (supra) and the instant one as in the former one, the intention was established whereas in the latter one, the same is missing as the plaintiff- respondent was convicted on the basis of rashness or negligence on his part while driving the vehicle. Furthermore, as noted supra, Hon'ble the Supreme Court in Karam Singh's case (supra), has also held that the petitioner being a Constable was expected to prevent the commission. So, to my mind, the facts of both the cases are poles apart. Rule 16.2(2) reads as under:- “16.2. Dismissal.- (1) xx xx xx xx (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 R.S.A. No.4472 of 2002 -6- keeping in view the instructions issued by the Government from time to time in this behalf.” As held in Pb. State through Collector Vs. Gurdip Singh, 1994(3) Service Cases Today 261, no doubt, even a single act of misconduct can, in a given situation amount to the gravest act of misconduct, but the mandate of the rule making authority is clear that the punishment of dismissal from service has not to be awarded in case of a misconduct of ordinary nature. Adverting to the instant one, the defendants- appellants have not adduced even a scintilla of evidence on the record to show that the plaintiff- respondent has been convicted on any earlier occasion for similar offence or any other offence. Thus, the accident qua which he has been convicted can be deemed to be a single stray case. It deserves to be mentioned here that any employee while driving a vehicle may happen to cause an accident or may become a victim of it while meeting with the accident. To say the least of it, herein intention is missing. If the plaintiff- respondent had been convicted for any offence earlier, or punished for any misconduct in the past, in all probabilities, such record would have been produced by the defendants- appellants. In the absence of such evidence, it has to be presumed that his past record was clean, which along with the length of service of the plaintiff- respondent ought to have been taken into consideration, while passing the impugned order. To my mind, the plaintiff- respondent having been released on probation of good conduct, the disciplinary authority was required to act in adherence to sub-Rule 1 of Rule 16.2 ibid and thus, his case is not covered under Sub-Rule 2 of Rule 16-2 R.S.A. No.4472 of 2002 -7- ibid. Of course, there being full-fledged trial of the plaintiff- respondent by a criminal Court, the inquiry was not required but in view of the fact that he was released on probation of good conduct, his conduct ought to have been taken into consideration, while passing the impugned order. By no stretch of speculation, the act of plaintiff- respondent can be deemed to be a gravest misconduct. In Shri Iqbal Singh Ex-Head Constable Police v. Inspector General of Police, Delhi and others, 1971 Shimla Law Reporter 257, the petitioner was convicted only under Section 337 of IPC, but was given the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958. It was ruled by the Division Bench of Hon'ble Delhi High Court that “In our view, the dismissal of the petitioner is unsustainable even in terms of the amended sub-rule(2) of Rule 16.2 of the Punjab Police Rules because of the express immunity which is provided by the provisions of section 12 of the Probation of Offenders Act, 1958. In Iqbal Singh's case (supra), the impugned order dismissing the petitioner from service was quashed. To my mind, this ruling is on all-fours or has direct bearing on merits of the case. Thus, on the basis of the rule laid down therein, the substantial question of law is answered against the defendants- appellants and in favour of the plaintiff- respondent. As a sequel of the above discussion, this appeal fails and is dismissed. In the peculiar circumstances of the case, the parties are directed to bear their own costs. July 22, 2010 ( HARBANS LAL ) renu JUDGE R.S.A. No.4472 of 2002 -8-