R.S.A.No. 3163 of 1996 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3163 of 1996 Date of decision: 20.7.2009 Manjit Singh ......Appellant Versus State of Punjab and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Vikram Singh,Advocate, for the appellant. Mr.J.S.Sandhu, Asstt. A.G.Punjab. **** SABINA, J. Plaintiff Manjit Singh filed a suit for declaration and the same was decreed by the Civil Judge (Jr.Divn.) Ferozepur vide judgment and decree dated 28.2.1996. In appeal, the said judgment and decree were set aside by the District Judge, Ferozerpur vide judgment and decree dated 23.9.1996. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- R.S.A.No. 3163 of 1996 2 “2. In brief, the facts of the case of the plaintiff as made out from the plaint, are that the plaintiff joined the police department as a constable on 14.8.1992. On the night intervening 2/ 3.3.1995 there was a theft of the currency notes of Rs.2,04,061/- from police station, Zira and in those days the plaintiff was posted with the Teasury Guard, Zira. The building of Treasury Office, Zira adjoins police station, Zira. That on suspicion the members of the Treasury Guard, Zira including the plaintiff were placed under suspension by the Deputy Superintendent of Police, Zira vide order dated 3.3.1995 and they were also interrogated on 9.3.1995. The plaintiff was transferred to police lines, Ferozepur for the above said lapses. It is further case of the plaintiff that invoking the provisions of rule 12.21 of the Punjab Police Rules, the Senior Superintendent of Police, Ferozepur vide order endst. No.2239-44/B dated 11.3.1995 discharged the plaintiff from service on the ground that he was not likely to become an efficient police officer. The plaintiff filed a representation against the said order of the Senior Superintendent of Police and the same was rejected by the Deputy Inspector General of Police, Ferozepur Range, Ferozepur. The plaintiff further averred that the order dated 11.3.1995 passed by the Senior R.S.A.No. 3163 of 1996 3 Superintendent of Police, Ferozerpur is illegal, null and void, unconstitutional, ultra vires, against the rules of law and natural justice as proper procedure was not followed by the Punishing Authority and no enquiry was conducted before passing the impugned order. It is averred that the impugned order has been passed on the allegations that the plaintiff remained absent from duty on 2.3.1995 and that he was interrogated in the investigation of the above said theft case. 3. On notice, the defendants filed written statement contesting the suit and took preliminary objections such as that the suit is not maintainable in the present form; that the suit is pre-mature as the plaintiff has not exhausted all the departmental remedies available to him; no valid notice under Section 80 CPC was served upon the defendants before filing the suit and that the suit is bad for non-joinder of necessary parties as Deputy Inspector General of Police, Ferozepur Range, Ferozepur has not been arrayed as a party. On merits, the appointment of the plaintiff as constable was admitted, but all the other allegations were denied and it was pleaded that the impugned order is legal one.” On the pleadings of the parties, following issues were R.S.A.No. 3163 of 1996 4 framed by the trial Court:- “1. Whether the order dated 11.3.1995 passed by SSP, Ferozepur is illegal null and void etc.? OPP 2. Whether order passed by DIG, Ferozepur in representation from order dated 11.3.1995 passed by SSP, Ferozepur is illegal null and void etc.? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the notice under Section 80 CPC is not valid? OPD 5. Whether the suit is bad for non-joinder of necessary parties? OPD 6. Relief. ” After hearing learned counsel for the appellant and learned State counsel, I am of the opinion that the present appeal deserves to be dismissed. Admittedly, the plaintiff joined as a Constable on 14.8.1992 with the defendants. During the night intervening 2/ 3.3.1995 a theft of currency notes valuing Rs.2,04,061/- took place from the building of Police Station Zira. At that time, the plaintiff was working with the Treasury Guard, Zira and the said building adjoined the building of the Police Station. A suspicion was raised against the members of the Treasury Guard including the plaintiff and they were placed under suspension. The plaintiff was discharged from R.S.A.No. 3163 of 1996 5 service under Rule 12.21 of the Punjab Police Rules, 1934 (for short 'the Rules'). The question that requires consideration is as to whether the order dated 11.3.1995 vide which the plaintiff was discharged from service under Rule 12.21 of the Rules was a valid order or not. The case of the plaintiff was that he had been discharged from service without following any proper procedure by the punishing authority. No enquiry was conducted against him. The case of the defendant State, on the other hand, was that since the discharge of the plaintiff was under Rule 12.21 of the Rules, no enquiry was necessary to be conducted against the plaintiff as the punishing authority was not satisfied with the work and conduct of the plaintiff and the order had been passed as the plaintiff was unlikely to prove an efficient police officer. It has been held by a Full Bench of this Court in Sher Singh v. State of Haryana (Pb. & Hry.) (F.B.) 1994 (2) SLR 100 as under:- “21. Necessarily, the question that arises is as to when can a person be said to be not efficient? Oridarily, according to the dictionary, a person is said to be efficient when he can perform a task “ in the best possible manner.” Efficiency in its ordinary sense means “ suitability for a task or purpose.” In fact, even the rules contain a clear indication regarding the qualities which a R.S.A.No. 3163 of 1996 6 constable must posses. While emphasizing the importance of training Rule 19.1 specifically provides that “the object of such training shall be to inculcate in police officers habits of physical health, activity, discipline, self reliance, observation, punctuality, sobriety, courtesy and straight-forwardness of dealing in the execution of their work as also a knowledge of the technical details of the work required of them”. These are the qualities which an efficient police officer must possess. One who lacks any of these qualities cannot be said to be efficient. The rules contain the necessary guidelines for the Superintendent of Police on the basis of which he has to form an opinion regarding a constable. If on a consideration of the relevant material, the Superintendent of Police finds that a particular constable is not active, disciplined, self- reliant, punctual, sober, courteous or straight-forward or that he does not possess a knowledge of the technical details of the work required of him, he can reasonably form an opinion that he is not likely to prove an efficient police officer. In such a situation, the Superintendent of Police can invoke his power under Rule 12.21 which only embodies a facet of the doctrine of pleasure as contained in Article 310 of the Constitution of India. He can discharge the constable from the force. R.S.A.No. 3163 of 1996 7 22.Another fact which deserves to be mentioned is that every police officer wields wide and varied powers. A man in uniform is the embodiment and symbol of Government's authority. It is through him that the Government acts to assert its power and can deny a citizen even his right to life and liberty. It is thus of utmost importance that he possesses the qualities enumerated in Rule 19.1 in ample measure. However, if on account of one reason or the other, the Superintendent of Police, who is the head of the force in the district forms an opinion that a constable is not likely to become an efficient police officer, he has been given the power to discharge him from service. This opinion can be formed not only on the basis of the periodical reports recorded on the performance of a constable, but also on any other data or information which may be available to the Superintendent of Police. This is, of course, subject to the condition that the Superintendent of Police cannot act arbitrarily. The opinion should not be whimsical. The opinion, though subjective, has to be formed on some objective date. So long as this requirement is fulfilled, the action would normally be within the ambit of Rule 12.21. 23. In this context, it is reasonable to assume that no R.S.A.No. 3163 of 1996 8 employer terminates the services of an employee, who is good and efficient. It is only when an employee is found to be wanting that an order of termination is passed. If a Superintendent of Police gets reports/complaints that a constable is not straightforward or that his integrity is suspect or that he is not courteous or that he has failed to acquire any of the qualities noticed above, he can pass an order under Rule 12.21. It cannot be said that merely because an allegation has been made against the employee that the procedure as laid down under Rule 16.24 for the purposes of holding regular departmental enquiry and the provisions of Art. 311 of the Constitution have to be followed. When an employee is working on temporary basis or is on probation, he has no right to the post. His services can be terminated at any time. Even in a case where the work and conduct of the employee have remained satisfactory for a certain duration of time, but suddenly a complaint is received against him, the employer has the two-fold choice. The employer can either proceed to terminate the services of the employee in accordance with the terms of appointment and the rules governing the service or if the employer feels that the allegations are serious and the employee R.S.A.No. 3163 of 1996 9 does not deserve to be merely discharged from service and should be punished so that he is unable to join any other service, it can proceed in accordance with the Rules to take penal action. In the latter case, if the employer decides to impose a major penalty, the procedure prescribed in Chapter 16 and more particularly Rule 16.24 and the requirements of Art. 311 of the Constitution of India have to be complied with. However, if the employer decides not to punish the employee and to merely take action in accordance with terms of appointment, the procedure as laid down under Rule 16.24 or Art. 311 of the Constitution of India is not required to be followed. 37. It has also contended that the Superintendent of Police can determine the suitability or otherwise of a constable only on the basis of the periodic reports recorded under Rule 19.5. We find no basis for such a contention. As already observed, the reports under Rule 19.5 have to be recorded and submitted by the Sub Inspector or the Inspector under whom the constable is working. The assessment recorded by these officers is not binding on the Superintendent of Police. Furthermore, even in a case where the periodic reports are good, some material can come to the R.S.A.No. 3163 of 1996 10 notice of the authority which may show that the concerned constable is not likely to become a good police officer. There may be complaint against a constable which may show that his integrity is doubtful or that he is not disciplined. If on the basis of such a material, the Superintendent of Police forms an opinion that the constable is unlikely to become an efficient police officer, there is nothing which debars him from passing an order of discharge under rule 12.21. 39. In view of the above, it is held that:- (1) A constable can be discharged from Service under Rule 12.21 at any time within three years of his enrolment in spite of the fact that there is a specific allegation which may even amount to misconduct against him; (2) A Superintendent of Police can form his opinion regarding the likelihood or otherwise of a constable making a good police officer not only on the basis of the periodic reports contemplated under Rule 19.5 but also on the basis of any other relevant material; and (3) The provisions of Rule 16.24 and Article 311 shall be attracted only when the punishing authority decides to punish the constable.” R.S.A.No. 3163 of 1996 11 Chapter XII of the Rules deals with the appointment and enrolment of police officers. Clause (3) of Rule 12.2 provides, inter alia, as follows:- “(3) All appointments of enrolled police officers are on probation according to the rules in this chapter applicable to each rank.” It is therefore obvious that as the appellant was enrolled as a police officer, he was on probation. The priod of probation has not been specified in the Rules, but Rule 12.21 provides for the discharge of an inefficient police officer as follows:- “12.21. A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolement. There shall be no appeal against an order of discharge under this rule.” Thus, a reading of the said rules reveals that maximum period of probation in a case of a police officer of the rank of constable is three years. Superintendent of Police concerned has the power to discharge him within that period. The purpose of the rule is that in case a constable is unlikely to prove to be an efficient police officer then he can be discharged under Rule 12.21 reproduced above within the period of probation. Senior Superintendent of Police, while passing the impugned order, was of R.S.A.No. 3163 of 1996 12 the opinion that the plaintiff was unlikely to prove an efficient police official. Learned counsel for the appellant, in support of his argument that enquiry was necessary to be conducted in this case before passing of the order of discharge, has placed reliance on the judgment of the Apex Court in Smt. Rajinder Kaur v. Punjab State and another AIR 1986 Supreme Court 1790(1), wherein it was held that where the order of discharge was apparently innocuous but it amounted to dismissal on the ground of misconduct, then it violated Article 311(2) of the Constitution of India. Learned counsel has also placed reliance on the decision of the Apex Court in Hardeep Singh v. State of Haryana and others 1987(4) SLR 576, wherein it was held that the matter terminating services of a probationer though simple in nature but imposed by way of punishment would violate Article 311 (2) of the Constitution of India. After going through the said judgments, I am of the opinion that the same fail to advance the case of the plaintiff as these were based on different facts. In the present case, a theft of currency notes to the tune of Rs.2,04,061/- took place in the police station. The plaintiff was posted with the Treasury Guard and the said building adjoined the building of police station. In these circumstances, since the plaintiff was still under the period of probation, the Senior Superintendent of R.S.A.No. 3163 of 1996 13 Police was of the opinion that the plaintiff was unable to prove to be an efficient police officer and discharged him from service by invoking the provision of Rule 12.21 of the Rules. The police force is a disciplined force and there is greater responsibility on the police officials. They are required to perform their duties more efficiently than the other Government employees. Hence, the impugned judgment and decree dated 23.9.1996 passed by the lower Appellate Court call for no interference. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 20, 2009 anita