RSA No.1806 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1806 of 1990 Date of Decision: 1.9.2008 Ex-Constable Kulwant Singh .....Petitioner Vs. State of Punjab and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. S.K. Chawla, Advocate for the petitioner. Mr. H.S. Gill, DAG, Punjab. ... RAJIVE BHALLA, J The appellant, a discharged police constable from the Punjab Police, lays challenge to the judgement and decree dated 28.5.1985, passed by the Sub-Judge, Ist Class, Faridkot, dismissing his suit and the judgement and decree dated 9.3.1990 passed by the Additional District Judge, Faridkot, dismissing his appeal. The appellant joined service in the police department as a Constable on 12.1.1981. After getting training in the police training school at Jahan Khelan, he was posted at Faridkot. A complaint was filed, before the S.S.P Faridkot that the appellant had contracted a second marriage with one Guddi d/o Nand Singh resident of Bhangchari. The Senior Superintendent of Police, Faridkot, marked an enquiry to the S.H.O. Police Station, Sadiq. After receipt of the enquiry the appellant was discharged from service under Rules 12.21 of the Punjab Police Rules (hereinafter referred to as `the Rules') on 20.7.1983 on the ground that he was unlikely RSA No.1806 of 1990 2 to prove an efficient police officer. A criminal complaint filed against the appellant under Section 494/109 IPC, alleging that the appellant had contracted a second marriage, ended with his acquittal on 29.8.1984, by the Judicial Magistrate, Faridkot. The appellant, thereafter filed a suit for declaration that the order of discharge was illegal and void. The suit was resisted by the respondents and apart from the preliminary objections, it was pleaded that as the appellant had joined service as a Constable on 12.1.1981. As his conduct and loyalty was not found above board, he was discharged from service with effect from 20.7.1993 It was asserted that as the order of discharge was neither stigmatic nor punitive in any manner, it was rightly passed under Rule 12.21 of the Rules. After an appraisal of the respective pleadings, the trial Court framed the following issues :- “1. Whether the suit is maintainable in the present form ? OPP 2. Whether a valid notice u/s 80 CPC has been served on the defendants ? OPP. 3. Whether the suit is properly valued for the purposes of court fee and jurisdiction ? OPP. 4. Whether the impugned order dated 20.7.1983 is illegal, unconstitutional, malafide, null and void against the principles of natural justice and against service rules and whether the plaintiff continues as a constable with all rights, benefits,privileges attached to the post of constable, which has already accrued or likely to accrue RSA No.1806 of 1990 3 in future ? OPP. 5. Relief.” Upon consideration of the pleadings, the evidence adduced and the arguments addressed, the trial Court dismissed the suit by holding that the appellant, a probationer was discharged within three years of his enrolment as a Constable and as the order of discharge was neither stigmatic nor punitive, his discharge from service was valid. The appellant's submission that his dismissal was founded upon an allegation that he had contracted a second marriage, was negatived. Aggrieved by the said order, the appellant filed an appeal. The appellate Court affirmed the findings returned by the trial Court and dismissed the appeal. Counsel for the appellant submits that though the order of discharge dated 20.7.1983, on its face value neither stigmatic nor punitive, a perusal of the police file Ex. P-10, clearly discloses that the impugned order is founded upon an allegation that the appellant contracted a second marriage. The impugned order, therefore, could not have been passed without serving a show cause notice and thereafter holding a regular enquiry under Rule 16.24(1) of the Rules. It is further submitted that the police file, Ex. P-10 discloses that upon receipt of a complaint a fact finding enquiry was entrusted to and conducted by S.H.O. Rajinder Singh, Police Station, Sadiq. The police file contains the complaint, statement of witnesses and the report submitted by the S.H.O., with respect to the appellant's second marriage. This file contains the appellant's entire service record, but significantly does not contain any material reflecting the appellant's work RSA No.1806 of 1990 4 and conduct or his performance as a police officer. It is submitted that in these circumstances, the learned Courts below should have and in fact were required to lift the veil behind the order, examine the material available before the Senior Superintendent of Police and, thereafter, record a conclusion whether the order of discharge could be passed on the basis of the available material. The material available in the police file relates to the appellant's alleged second marriage and not to his conduct and performance as a police officer. It is therefore apparent that the order of discharge is founded upon the unsubstantiated allegation of a bigamous relationship, of which the appellant has been acquitted. These charges, therefore, should have invited an enquiry in terms of Rule 16.24(1) of the Rules and not an order of discharge under Rule 12.21. Reliance for the above arguments is placed upon a judgement of the Hon'ble Supreme Court reported as Mathew. P.Thomas Vs. Kerala State Civil Supply Corpn. Ltd. and others, 2003(1) SCT 1051(SC). It is also submitted that in Anoop Jaiswal V. Government of India and another, 1984(1) SLR 426, it has been held that where the form of the order is a mere a camouflage for an order of dismissal for misconduct, it is open to the Court to go behind the order and ascertain its true character, even in the case of a probationer. Other judgements pressed into service by counsel for the appellant are Rajinder Kaur V. Punjab State and another, 1986(3) SLR 78, Rakesh Kumar V. State of Punjab and others, 1999(4) RSJ 194 and Prithipal Singh V. State of Punjab and others, 2000(3) RSJ 736. It is, therefore, submitted that as the order of discharge, is founded upon an alleged misconduct, namely the contracting of a second marriage, the Courts below were obliged to go behind the order RSA No.1806 of 1990 5 and examine, whether the order was passed as a measure of punishment i.e. founded on allegation of misconduct or was an order of discharge simpliciter founded upon the performance and conduct of the appellant. . It is submitted that as the impugned order is an order of punishment, the learned Courts below committed an error in dismissing the suit and the appeal. It is further submitted that in case of orders of discharge simpliciter, the respondents, should have produced the performance reports recorded under Rule 19.5.1 Vol.II of the Rules. It is, therefore, submitted that as the learned Courts below, disregarded the law, failed to peruse the file Ex.P-10, did not make an attempt to lift the veil so as to examine the true intention behind the order and as the impugned order of discharge has been passed for allegedly misconduct, the impugned judgements and decrees be set aside. Counsel for the State of Punjab, however, submits that the order of discharge is an order of dismissal simpliciter, passed under Rule 12.21. It discloses the subjective satisfaction of the Senior Superintendent of Police, Faridkot and therefore, judicial review thereof, is not permissible or at the most is minimal and confined to examining, whether the order is stigmatic or punitive. It is further submitted that the appellant was a mere probationer. The impugned order is an order of discharge simpliciter, during probation attaching no stigma to the appellant, that would visit him with adverse civil consequences. The learned Courts below therefore rightly dismissed the suit and the appeal. It is further argued that there is no question of lifting the veil, as the order of discharge records that the appellant is not likely to prove an efficient police officer. The subjective RSA No.1806 of 1990 6 satisfaction recorded by the Senior Superintendent of Police, Faridkot, need not necessarily be reflected in the order or in the material, as is necessary in the case of order that requires objective assessment. Counsel for the appellant has framed the following questions of law :- 1. Whether the learned Courts below committed error of law by holding that the order of discharge dated 20.7.1983 was not stigmatic and punitive and, therefore, no enquiry was necessary under Rule 16.24(1) of the Rules ? 2. whether the learned courts below committed an error in failing to examine, whether the order of discharge dated 20.7.1983 was founded on allegations of misconduct ? 3. Whether the appellant though a probationer could be discharged under Rule 12.21, without any material to suggest that the appellant is not likely to prove an efficient police officer 4. Whether a probationer, can be dismissed for misconduct, without following the procedure under Rule 16.24 of the Rules ? I have heard learned counsel for the parties and perused the impugned orders. Rule 12.21 & 16.24(1) of the Rules read as under :- “12.21. Discharge of Inefficients – 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 enrolment. There shall be no appeal against an order of discharge under this rule. RSA No.1806 of 1990 7 16.24. Procedure in departmental enquiries – (1) The following procedure shall be followed in departmental enquiries :- (i) The police officer accused of misconduct shall be brought before an officer empowered to punish him, or such superior officer as the Superintendent may direct to conduct the enquiry. That officer shall record and read out to the accused officer a statement summarizing the alleged misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded. A copy of the statement will also be supplied to the accused officer free of charge.” There is no dispute that a probationer may and should, circumstances so permitting, be discharged from service, if he is unlikely to prove an efficient police officer in exercise of powers conferred by Rule 12.21 of the Rules. Where however the order of discharge is stigmatic, punitive or is founded upon an allegation of misconduct, whatsoever be the language used, such an order can only be passed after service of a show cause notice and the holding of an enquiry, even if the delinquent officer is a probationer. Orders of discharge, whether based upon misconduct or not, are generally couched in general terms and more often than not merely incorporate the language used in Rule 12.21 of the Rules. Where a plaintiff alleges and prima facie, establishes that the so called order of discharge is in essence, founded upon an alleged misconduct and is in essence an order of punishment, a Court would be obliged to examine the record and satisfy RSA No.1806 of 1990 8 itself that if the material on record relates to the inefficiency of the officer and to nothing else. Where, however, the order of discharge is founded upon an allegation of perceived, presumed or alleged misconduct, a Court would be obliged to examine the material and if found to relate to the allegations of misconduct, proceed to set aside such an order and direct the punishing authority, to hold an enquiry in terms of Rule 16.24(1) of the Rules. In order to place the above conclusions in perspective, reference would necessarily have to be made to a judgement of the Supreme Court in Mathew P. Thomaas (supra), a relevant extract whereof reads as follows :- “From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a time the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service. If the form and language of the so-called order of termination simpliciter of a probationer clearly indicates that it is punitive in nature or/and it is stigmatic there may not be any need to go into the details of the back ground and surrounding circumstances in testing whether the order of termination is simpliciter or punitive. In RSA No.1806 of 1990 9 cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis and design to terminate the service of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the service of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct.” A Court is, therefore, circumstances permitting, empowered to remove the camouflage behind an order in its attempt to arrive at the true purpose and nature of an order of discharge. Such a course can be adopted even in the case of a probationer and for the above conclusion, I draw sustenance from the judgements reported as Anoop Jaiswal V. Government of India and another, Rajinder Kaur V. Punjab State and another, Rakesh Kumar V. State of Punjab and others, and Prithipal RSA No.1806 of 1990 10 Singh V. State of Punjab and others (supra). It would be necessary to reproduce relevant paragraphs from the judgement in Anoop Jaiswal's case (supra), which read as follows :- “12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be de barred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee. 13. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymnasium and acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non- RSA No.1806 of 1990 11 committal, it cannot stand alone. Though the nothing in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read alongwith the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.” Reference would necessarily have to be made to Rajinder Kaur's case (supra) and a relevant extract from the judgement reads as follows :- “On a conspectus of all these decisions mentioned hereinbefore, the irresistible conclusion follows that the impugned order of discharge though couched in innocuous terms, is merely a camouflage for an order of dismissal from service on the ground of misconduct. This order has been made without serving the appellant any charge-sheet without asking for any explanation from her and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross-examine the RSA No.1806 of 1990 12 witnesses examined i.e. in other words the order has been made in total contravention of the provisions of Article 311(2) of the Constitution. The impugned order is, therefore, liable to be quashed and set aside. A writ of certiorari be issued on the respondents to quash and set aside the impugned order dated 9.9.1980 of her dismissal from service. A writ in the nature of mandamus and appropriate directions be issued to allow the appellant to be reinstated in the post from which she has been discharged. The appeal is, thus, allowed with costs. The authorities concerned will pay all her emoluments to which she is entitled to in accordance with the extent rules as early as possible in any case not later than eight weeks from the date of this judgement.” It is, therefore, apparent that even in the case of a probationer, a Court is empowered to determine, whether the innocuously worded order of discharge is founded upon allegations of misconduct. If the order of discharge, whatever be the words used, is founded upon allegations of misconduct, a Court would be justified in setting aside such an order and directing the State to proceed, in accordance with the Rule of 16.24(1) of the Rules to hold an enquiry. The learned Courts below, failed to examine the true nature of the order, failed to examine the material contained in the police file Ex. P-10 and failed to record a finding whether the order of discharge was founded upon an allegation of misconduct. The Courts below instead RSA No.1806 of 1990 13 proceeded to merely go by the plain language of the order of discharge. A perusal of Ex.P-10, the original police file, which contains the order of discharge, clearly discloses that before passing of the order of discharge, the Senior Superintendent of Police, Faridkot, received a complaint dated 27.6.1983 from one Nand Singh that the appellant had contracted a second marriage. The Senior Superintendent of Police, Faridkot, directed the S.H.O. Police Station, Sadiq, to conduct an enquiry. The S.H.O. held an enquiry, recorded statement of witnesses and submitted a report dated 3.7.1983. The report was received in the office of the Senior Superintendent of Police, Faridkot, through the concerned Deputy Superintendent of Police on 4.7.1983. Thereafter, a detailed report dated 17.7.1983 was placed before the Senior Superintendent of Police, Faridkot on 20.7.1983. The Senior Superintendent of Police, Faridkot, passed the order discharging the petitioner. As is apparent from a perusal of Ex.P-10, apart from the above referred material, there is no other material in the file, to suggest that the Senior Superintendent of Police, Faridkot, ever applied his mind, to any particular material relating to the appellants work and performance as a police officer. No such material is available in Ex.P-10 or was placed on record by the defendants, in support of their plea that the order of discharge was based upon inefficiency and the likelihood of the appellant not proving to be an efficient police officer. It is, therefore, apparent that the order of discharge, though couched in the language used in Rule 12.21 of the Rules is in essence, an order passed as a measure of punishment for the alleged second marriage and, therefore, founded upon an allegation of misconduct. A police officer, contracting a second marriage, would necessarily be guilty of misconduct RSA No.1806 of 1990 14 and whether a probationer or otherwise and would necessarily have to be proceeded, in accordance with the provisions of Rule 16.24(1) of the Rules i.e. issuance of a show cause notice, followed by a regular departmental enquiry. Admittedly, the procedure prescribed by Rule 16.24(1) of the Rules was never initiated. Consequently, I have no option but to hold that the order passed by the Senior Superintendent of Police, Faridkot, discharging the appellant was founded on allegation of misconduct i.e. an alleged second marriage and is, therefore, in the nature of an order of punishment for an alleged misconduct. The order, therefore, should have been preceded by an enquiry under Rule 16.24(1) of the Rules. As admittedly, the procedure prescribed by law was not followed, the order of discharge is illegal, null and void. The substantial question of law, framed by counsel for the appellant is, therefore, answered in his favour by holding that the courts below, failed in the exercise of their jurisdiction, failed to peruse the police file Ex.P-10, failed to examine the nature of the order of discharge and failed to discern that the impugned order was founded upon allegations of misconduct, thus, leading to fundamental errors in the discharge of jurisdiction. It would be necessary to mention here, and as noticed in the narrative of facts that the allegation with respect to the appellant's contracting a second marriage were found to be false, as the appellant was acquitted of these charges by the Judicial Magistrate, Faridkot. In view of what has been stated herein above, the appeal is allowed, the judgements and decrees passed by the trial Court dated 28.5.1985 and the first appellate Court dated 9.3.1990 are set aside and as a RSA No.1806 of 1990 15 consequence the suit filed by the appellant for a declaration that the order of discharge dated 20.7.1983 is illegal and void, is decreed in the following terms :- (a) the order dated 20.7.1983 is set aside; (b) the appellant shall be reinstated in service but would not be entitled to any backwages, as he has not served the police department during this period; (c ) after taking into consideration the fact that the appellant has been acquitted in the criminal complaint, alleging contracting of a second marriage, it may not be advisable to hold an enquiry but the discretion in respect thereof vests with the Senior Superintendent of Police, Faridkot, who shall consider and take a decision in respect thereof, after reinstating the appellant. The past service of the appellant would be counted for the purpose of increments, fixation of pay, seniority and any other benefits that may be due to the appellant. No order as to costs. 1.9.2008 (RAJIVE BHALLA) GS JUDGE