R.S.A. No.2240 of 1997 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2240 of 1997 Date of Decision:21.07.2010 State of Punjab .....Appellant Vs. Dalbir Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. P.C. Goyal, Additional Advocate General, Punjab for the appellant. Mr. H.R. Bhardwaj, Advocate for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/decree dated 9.1.1997 passed by the Court of learned District Judge, Kapurthala whereby he dismissed the appeal filed by the State of Punjab against the judgment/ decree dated 27.10.1993 rendered by the Court of learned Sub Judge Ist Class, Kapurthala vide which he decreed the suit of the plaintiff for declaration to the effect that the order dated 21.10.1987 of Superintendent of Police, Kapurthala is illegal, ineffective, null and void and that the plaintiff be treated in service continuously and that he will be entitled to all the benefits of pay and other allowances, as if he had not been dismissed vide said order. R.S.A. No.2240 of 1997 -2- The factual matrix is that the the plaintiff, a confirmed constable has been dismissed from service by the Superintendent of Police, Kapurthala vide his order dated 21.10.1987 which is illegal, null and void as the Inquiry Officer has not adopted the correct procedure as provided by law. He was not given adequate opportunity to cross-examine the witnesses and to produce his evidence. Even his own statement was not recorded. The severe punishment of dismissal from service has been inflicted without affording an opportunity of being heard to him. He was suspended from service by the Superintendent of Police, Kapurthala with effect from 28.5.1987. He continued as such till his dismissal. He was never given any direction by anyone to remain present at a particular time and place. Therefore, he could not be punished for his absence from duty during his suspension period. The only charge against him was that he remained absent during period of suspension. There being some defect in his spinal cord, he remained under the treatment of Dr. Anil Kumar Sharma of Mohalla Kaimpura, Chowk Kapurthala from 8.6.1987 to 29.7.1987 and was not in a position to attend his duty although he remained present at Kapurthala. During his suspension period, he was not supposed to mark his presence anywhere. The copies of documents, the statements of the witnesses of the department and the inquiry report were not supplied to him. Besides this, his reply was not considered by the punishing authority with an open mind. On these allegations, the suit has been filed for declaration to the effect that the order dated 21.10.1987 is illegal, null and void. In the written statement filed by the defendant, it has been inter-alia pleaded that the plaintiff has been awarded punishment of forfeiture of service five times R.S.A. No.2240 of 1997 -3- besides having been censured before the order of dismissal was passed. As alleged, he had not been confirmed as Constable till the date of his dismissal and he had been habitual absentee during his service and the order impugned has been passed in accordance with rules as regular inquiry was conducted under Punjab Police Rule 16.24. The plaintiff remained absent from duty without leave/ permission with effect from 8.6.1987 to 29.7.1987 intentionally and wilfully. He was supplied with copies of entire material as required under law and was afforded full opportunity to defend and was also served with a show cause notice along with findings of the enquiry officer before passing the impugned order. He was placed under suspension with effect from 20.7.1987 for his being found absent from duty with effect from 8.6.1987. He was required to be present at Police Line during the period of his suspension as per rules. On the pleadings of the parties, the following issues were framed: 1. Whether the order dated 21.10.87 passed by the S.S.P. Kapurthala is illegal, null and void and ineffective?OPP 2. Whether the plaintiff is entitled to the declaration prayed for?OPP 3. Whether the suit is not maintainable? OPD 4. Whether the suit is bad for non-joinder of necessary parties? 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 R.S.A. No.2240 of 1997 -4- the outset. Feeling aggrieved therewith, the Punjab State went up in appeal, which was dismissed by the Court of learned District Judge, Kapurthala. Being undaunted and dissatisfied with the judgments recorded by both the Courts below, the Punjab State has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. P.C. Goyal, learned Additional Advocate General, Punjab valiantly urged that during his suspension period, the plaintiff- respondent was obligated to remain present in the Police Line as provided in Punjab Police Rule No.16.21(1)(2) but he remained absent. The inquiry was conducted and adequate opportunity was afforded to him to lead his evidence. He has fabricated the evidence regarding his admission in the hospital in relation to his illness. If it is assumed to be so, nonetheless, he was duty bound to intimate to the appropriate authority with regards to his illness, but he did not take the pains to send information in this behalf. To controvert these submissions, Mr. H.R. Bhardwaj, Advocate appearing for the respondent maintained that as per the statement of DW1 Gurdial Singh, the only charge against the plaintiff- respondent in the inquiry conducted against him was that he was found absent from duty at the time of roll call during his suspension period and it is only on this ground that the dismissal order has been passed against him. By now, it is beyond cavil that the employee under suspension is not liable to render any service or to perform any duty during suspension period pending inquiry and also cannot be compelled to attend the roll call. The order directing the Police Officer while under suspension to attend the roll call is illegal. These R.S.A. No.2240 of 1997 -5- contentions merit acceptance for the discussion to follow hereunder. The substantial question of law which arises for determination in this appeal is “Whether during the period of suspension, it was the duty of the plaintiff- respondent to record attendance everyday at the roll call and whether his alleged absence during his suspension period could be termed as a misconduct inviting imposition of penalty.” In Ramesh Chander Chug, Assistant Engineer (Civil) v. The Haryana State Electricity Board, 1986(3) Services Law Reporter 1, it has been held by the Division Bench of this Court that “a person who had been suspended was not required to attend the office at his Headquarters daily.” In that case, the direction was given by the Chief Accounts Officer to Ramesh Chander, who was under suspension to attend the office at his Headquarters daily, which was held to be without jurisdiction and liable to be quashed. In Ex. HC Munshi Ram v. The State of Haryana and others, 1991(2) Recent Services Judgments 345, applying the ratio of Ramesh Chander Chug's case (supra), it was held by the Division Bench of this Court that the absence of 174 days could not be a ground for dismissal of the petitioner. In view of the consistent view of this Court taken in the afore- referred cases, the plaintiff- respondent during his suspension period could not be compelled to attend the roll call and such a direction given to him was illegal. Sequelly, he could not be treated as absent from duty during the period in question being under suspension. Thus, there is nothing on the record to depart from the view adopted by the Courts below. Sequelly, the substantial question of law stands answered against the defendant- appellant R.S.A. No.2240 of 1997 -6- and in favour of the plaintiff- respondent. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. July 21, 2010 ( HARBANS LAL ) renu JUDGE Note: Whether this case is to be referred to the Reporter? Yes/No