IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1903 of 2009 (O&M) Date of decision : May 06, 2009 State of Haryana and others Appellants Versus Wazir Singh Respondent CORAM : HON'BLE MR. JUSTICE A.N. JINDAL Present: Ms. Naveen Malik, Addl. A.G. Haryana Mr. S.K. Garg, Advocate assisted by Mr. Naveen Gupta, Advocate for the respondent A.N. JINDAL, J. (ORAL) State of Haryana by way of this Regular Second Appeal has challenged the judgment and decree dated 24.1.2009 passed by District Judge, Jind dismissing the appeal against the judgment dated 30.4.2007 passed by Addl. Civil Judge (Sr. Divn.) Jind decreeing the suit of the plaintiff/respondent (herein referred as the plaintiff). The plaintiff had challenged the order dated 7.7.1992 (Annexure P-9) passed by defendant No. 3, vide which he was dismissed from service, as illegal null and void and not binding upon him in any manner and with consequential relief to the effect that he be reinstated in service with all consequential service and monetary benefits. Plaintiff was appointed as a Constable in Haryana police on regular basis vide order dated 30.4.1992 passed by defendant No. 3 and was discharged on 7.7.1992 under Rule 12.21 of Punjab Police Rules, 1934, as applicable to the State of Haryana on the allegations that he remained absent for the following period :- On 3.7.1992 12.05 P.M. to 3.15 P.M. On 3.7.1992 4.00 P.M. to 5.30 P.M. On 4.7.1992 12.05 P.M. to 4.00 P.M. R.S.A. No. 1903 of 2009 (O&M) 2 The total absence from duty was 8 hours 35 minutes. On examination of the entire evidence, it transpires that Jitender Singh and Yash Pal Singh had categorically stated that the respondent had never remained absent rather the false grounds were created for ousting the plaintiff from service. There is a overwhelming evidence on the record that the respondent has never been absent from duty. In any case, discharge of the respondent on the grounds of absence of duty is certainly stigmatic order which could not be passed without holding enquiry. Similar view was taken in case Kulwant Singh vs. The State of Punjab etc. RSJ 2003(1) 504 (P&H) wherein referring to rule 12.21 in case of absence from duty, it was held that the order of discharge was stigmatic in nature and having been passed by way of punishment would amount to removal from service and not discharge simplicitor. The order of discharge was set aside. The trial Court has also placed reliance on the judgments delivered in cases Punjab State and others vs. Paramjit Singh 2002(3) RSJ 114 (P&H) and Smt. Rajinder Kaur vs. Punjab State and another AIR 1986 Supreme Court 1790 while assailing the impugned stigmatic order. Learned counsel for the respondent-plaintiff has urged that the impugned order though is innocuously worded but in fact has foundation in alleged absence and over-bearing behaviour of the plaintiff and thus is stigmatic requiring principle of natural justice, to be followed. It is contended that the respondent-plaintiff was to be given an opportunity to explain his position. Reliance has been placed on the judgment State of Haryana vs. Jagdish Chander 1995(2) RSJ 869 (SC). It was a case of discharge under Rule 12.21 of the Police Rules and under the aforesaid rule, no stigmatic order could be passed. It was further held that the principle of natural justice of giving an opportunity to the respondent to R.S.A. No. 1903 of 2009 (O&M) 3 explain his position, was required. The order of discharge was held to be vitiated by the manifest error of law. Reliance has also been placed on Anoop Jaiswal vs. Government of India and another AIR 1984 Supreme Court 636, Prithpal Singh vs. State of Punjab and others 2003(3) RSJ 736 (SC), Brahma Nand, Ex. Constable vs. State of Haryana and others 1995(1) R.S.J. 518 (P&H), Ex. Constable Jhirmal Singh vs. State of Punjab and others 2001(3) RSJ 463 (P&H), Krishan Kumar vs. State of Haryana and others 1999(3) RSJ 125 (P&H) and Suresh Kumar Constable and others vs. State of Haryana and others 1996(3) RSJ 770 (P&H). In view of the foregoing discussions, the learned Lower Court was right in coming to a conclusion that the impugned order was against the principles of natural justice. Finding on Issue No. 1 and 2 rendered by the learned Court in favour of the plaintiff being correct on facts and in law, are affirmed. No substantial question of law arises and is involved in this case. There are no grounds to interfere. Hence dismissed. (A.N.JINDAL) 06.05.2009 JUDGE reena