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2005 DIGILAW 252 (PNJ)

State Of Punjab v. Rachhpal Singh

2005-02-11

ADARSH KUMAR GOEL

body2005
Judgment Adarsh Kumar Goel, J. 1. The respondent filed a suit for declaration to the effect that order dated 9.8.1983 discharging him from service, was void. 2. Case of the respondent-plaintiff is that he joined as Constable in Punjab Police on 30.9.1980. He was awarded commendation certificates. On account of party faction, he was implicated in a false complaint under Sections 107/151 Cr.P.C., which led to the order of discharge and the same was malafide and illegal. 3. The appellant State contested the suit, stating that the plaintiff was given following punishments:- "i) Awarded 12 days punishment drill in 1983 for absence on 2.2.1983 from Traffic Staff. ii) Awarded 12 days punishment drill in 1983 for absence on 3.2.1983. iii) Awarded 15 days punishment drill in 1983 for absence from 11.2.1983 to 12.2.1983. Besides he has also been sanctioned 2 days leave without pay 2 days absence from 25.11.1981 to 26.11.1981 and one days leave without pay for one day absence on 11.1.1983." 4 He was placed under suspension on 15.7.1983 for having been arrested under Sections 107/151 Cr.P.C. He was reported to be mixed up with extremists and was habitual absentee. He was discharged under Rule 12.21 of the Punjab Police Rules, 1934 (for short, the rules) as he was not likely to become a good police officer and for such an order, no enquiry was required. 5. The trial court decreed the suit. It was held that order of discharge from service was arbitrary and malafide and was based on, report of the Deputy Superintendent of Police, Amritsar without affording opportunity to the plaintiff. Since report of the DSP, Amritsar Certificates Exhibits A.1, A.2 and A.3 were awarded to the plaintiff which were wrongly denied on behalf of the State. 6. On appeal finding of the trial court were affirmed. 7. Learned Counsel for the appellants submitted that the impugned order dated 9.8.1983 was an order of discharge simpliciter and no enquiry was called for. Report of the DSP was only motive for the order and not the foundation and the order had been passed on an overall consideration of service record of the plaintiff. Reliance is placed on judgments of this court in Ex-Constable Ravinder Singh v. State of Punjab, 2003(3) R.S.J. 511 and Surjit Singh v. State of Punjab and Ors., 2004(1) R.S.J. 138. 8. Reliance is placed on judgments of this court in Ex-Constable Ravinder Singh v. State of Punjab, 2003(3) R.S.J. 511 and Surjit Singh v. State of Punjab and Ors., 2004(1) R.S.J. 138. 8. Learned Counsel for the respondent-plaintiff relies upon decisions of this Court in Ex. Const. Ram Niwas v. State of Haryana, 1998(4) S.C.T. 493 and Punjab State v. Sh. Satinder Singh, 1993(2) S.C.T. 372, in support of the submission that order of discharge without charge sheet and fair opportunity was void. 9. I have heard learned counsel for the parties and perused the record. 10. Before proceeding further, it is necessary to pursue the order of discharge, which is as under:- "Const. Rachhpal Singh No.2930 of this district is hereby discharged with effect from 9.8.1983 afternoon under P.P.R. 12.21 as he is unlikely to prove an efficient police Officer. 2. Issue orders in O.B. and all concerned to note for necessary action." 11. Learned counsel for the appellants submitted that in Surjit Singh (supra), this Court considered the earlier judgments in Satinder Singh and Ram Niwas (supra) and the same were not followed in view of full Bench judgment in Sher Singh v. Slate of Haryana, (1994-1)106 P.L.R. 456 (F.B.), wherein it was observed:- "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 Governments 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 numerated 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 data. 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 data. 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 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. lf 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 Article 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 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 Article 311 of the Constitution of India have to be complied with. 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 Article 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 the terms of appointment, the procedure as laid down under Rule 16.24 or Article 311 of the Constitution of India is not required to be followed." 12. Reference was also made by this Court in Surjit Singh (supra) to Apex Court judgment in State of Punjab v. Bhagwan Singh, J.T. 2001 (Suppl.) S.C. 7. 13. After hearing learned counsel for the parties, I find that a substantial question of law arises for consideration whether the courts below were justified in holding the order of discharge simpliciter of the respondent from service, to be invalid on the ground that the order was punitive being based on the report of Deputy Superintendent of Police, without affording him an opportunity of being heard. 14. It is well-settled that an order of discharge simpliciter will not be punitive merely because prior to passing of such an order, some enquiry was held to ascertain suitability of the employee. The order as already reproduced in the earlier part of the judgment, is an order of discharge simpliciter. No doubt, form of order is not conclusive if the same is camouflage for punitive order i.e. if the same is founded upon a misconduct. Concept of foundation and motive has been considered in several decisions by the Apex Court and in Pavanendra Narayan Verma v. Sanjay Gandhi, PGI of Medical Sciences and Anr., A.I.R. 2002 S.C. 23, after reviewing the earlier case law, the Apex Court observed "courts continue to struggle with semantically indistinguishable concepts like motive and foundation and terminations founded on a probationers misconduct have been held to be illegal while termination, motivated by the probationers misconduct, have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents." It was then concluded that to hold an order to be punitive, three factors should be present:- (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct and (c) which culminated in a finding of guilt. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents." It was then concluded that to hold an order to be punitive, three factors should be present:- (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct and (c) which culminated in a finding of guilt. If all the three factors are present, the termination has to be held to be punitive. Conversely if any one of the three factors is missing, the termination has to be upheld. The said decisions has been followed in a recent decision in Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. and Ors. (2003)3 S.C.C. 263. On the interpretation of the same rule i.e. Rule 12.21 of the Punjab Police Rules, 1934, the matter came up before the Apex Court in State of Punjab and Ors. v. Bhagwan Singh, (2002)9 S.C.C. 636. Allowing the appeal of the State of Punjab holding an order of termination to be punitive, it was held that when a probationer is discharged during probation and for that purpose, assessment of his work is done, the same cannot amount to stigma. 15 In the present case, the Deputy Superintendent of Police merely put up his noting on the basis of an overall record and the Senior Superintendent of Police also found that having regard to overall record of service, the respondent should be discharged under Punjab Police Rule 12.21. On these facts, the order could not be held to be punitive and appraisal of service record has to be held only the motive for passing the order and not the foundation. 16. For the above reasons, answer to the question has to be in favour of the appellant. 17. Accordingly, this appeal is allowed. Decree granted by the courts below is set aside and the suit filed by the respondent is dismissed. No costs.