R.S.A. No. 1907 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1907 of 2009 (O&M) Date of Decision : 6.5.2009 The State of Haryana & others .......... Appellants Versus Ram Niwas ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Anjum Ahmed, Addl. A.G., Haryana for the appellants. Mr. S.K. Garg Narwana, Advocate and Mr. Naveen Gupta, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 24.1.2009, passed by the learned Courts below, vide which suit filed by the plaintiff / respondent for declaration with a consequential relief stands decreed. The plaintiff / respondent was appointed as a Constable in Police, on regular basis, by the Superintendent of Police, Jind and he joined service on 30.4.1992. The appointment of the plaintiff / respondent was made after following due procedure. Along with the plaintiff / respondent other 43 Constables were appointed. However, after transfer of the R.S.A. No. 1907 of 2009 2 Superintendent of Police, who had appointed the plaintiff / respondent and others, the succesor Superintendent of Police, started harassing the persons appointed by his predecessor. He wanted to terminate their services, in order to accommodate his own men. The case set up by the plaintiff / respondent was, that all the appointed constables, were put to physical test, and out of them 12 Constables were ordered to be discharged. Most of the Constables, whose services were terminated, were ordered to be reinstated by this Court in exercise of writ jurisdiction. With respect to the Constables who had cleared the physical test, the case set up by the plaintiff / respondent was, that other methods were used by the subordinate officers under orders of the Superintendent of Police to terminate their services, on one pretext or the other. In order to achieve this object false entries about his absence from duty were recorded, though he was not absent. On the basis of the entries he was discharged under Rule 12.21 of the Punjab Police Rules, 1934, without giving opportunity of hearing. The plaintiff / respondent challenged the order of discharge, by invoking the writ jurisdiction of this Court. However, the writ was ordered to be dismissed by Hon'ble Single Judge. In the LPA the plaintiff / respondent was allowed to withdraw his petition to avail his remedy of civil suit. In view of dispute on facts liberty to that effect was granted. The appellant / defendants contested the suit, by rasing a plea R.S.A. No. 1907 of 2009 3 that the suit was not competent, in view of dismissal of the writ petition. On merit, it was pleaded, that the order passed under Rule 12.21 of the Punjab Police Rules, 1934, in case of a temporary Constable, was not open to challenge. A plea was also taken that the suit was barred by limitation. The learned Courts below have recorded a concurrent finding of fact, holding that the order dated 3.7.1992 was illegal, null and void and not binding on the rights of the plaintiff, in any manner and thus he was held entitled to reinstatement with consequential benefits. The other issues, the onus of which was on the defendant / appellants were decided against the defendant / appellants for want of evidence and having been not pressed. The learned Addl. A.G., Haryana contends that the appeal raises the following substantial question of law :- Whether it was obligatory upon the Superintendent of Police to afford a personal hearing to the plaintiff / respondent in view of the fact that the impugned order, dated 3.7.1992 was an order of discharge passed under Rule 12.21 of Punjab Police Rules ? In support of substantial question of law, the learned Addl. A.G., Haryana contends, that the power under Rule 12.21 of the Punjab Police Rules are exercised by the Superintendent of Police on subjective satisfaction. Once the Superintendent of Police, on the basis of record of the police official, formed an opinion, that the Constable was not likely to become good police official, an order under Rule 12.21 of the Punjab Police R.S.A. No. 1907 of 2009 4 Rules could be passed. The Civil Court can not interfere with the order of discharge, by treating it to be an order of punishment. The plea raised by the learned Addl. A.G., Haryana cannot be accepted. Though, it cannot be disputed, that under normal circumstances it is open to the Superintendent of Police, to discharge a Constable, if on the basis of assessment of his work a subjective satisfaction is formed that he is not likely to be a good police official. The general proposition cannot be applied to the peculiar facts of the present case. The plaintiff / respondent successfully proved by leading evidence, that order of discharge was not bona fide, and in fact it was an order of termination of services on specific charge of misconduct i.e. absence from duty. The learned Courts below, therefore, rightly came to the conclusion, that the absence from duty being a serious misconduct, it was necessary to hold departmental enquiry especially when the allegations levelled were specifically denied by levelling serious allegations of mala fide. The facts and circumstances of the present case further showed, that the absence of few hours being manipulated under the instructions of the Superintendent of Police stood proved by the plaintiff / respondent by leading evidence. The learned Courts below in view of the facts and circumstances explained above, were right in coming to the conclusion, that the services of the plaintiff/ respondent could not be dispensed with in R.S.A. No. 1907 of 2009 5 exercise of powers under Rule 12.21 of the Punjab Police Rules without holding departmental enquiry on the allegations of misconduct. The substantial question of law raised does not arise for consideration in this case. No merit. Dismissed. 6.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE