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2008 DIGILAW 1801 (PNJ)

Sanjeev Kumar v. State Of Haryana

2008-10-24

AUGUSTINE GEORGE MASIH, MEHTAB S.GILL

body2008
Judgment Augustine George Masih, J. 1. Through this writ petition, the petitioner is praying for quashing of the order dated 19.09.2006 (Annexure P6) passed by the Superintendent of Police, Giirgaon-respondent No. 4 by which penalty of stoppage of three future increments with permanent effect has been imposed and quashing of the order dated 19.09.2006 (Annexure P-7) passed by the Superintendent of Police, Gurgaon-respondent No. 4 by which the petitioner has been discharged from service with immediate effect under Rule 12.21 of the Punjab Police Rules. Further prayer for quashing of the order passed by the Inspector General of Police, Gurgaon Range, Gurgaon (Annexure P-8) and the order dated 13.08.2008 (Annexure P-11) passed by the Director General pf Police, Haryana respondent No. 3. 2. It is the contention of the petitioner that the order Annexure P-7 passed by respondent No. 4 under Rule 12.21 of the Punjab Police rules as applicable to Haryana, has been passed, in pursuance to the order dated 19.09.2006 (Annexure P-6) passed by the same authority and, therefore, the order Annexure P-7 is not an simplicitor order of discharge but is based on P-6, which is a punishment imposed upon him and stoppage of three future increments with permanent effect on the basis of a departmental enquiry conducted against him. In view of the fact that the order has been passed, which is based on a punishment order (Annexure P-7), thus cannot be sustained and this Court should look into the same and unveil the reasons behind the passing of order of discharge simpiicitor, which, as a matter of fact, is punitive, in nature and, therefore, cannot be disguised in such a manner to show that it is an order of discharge simpliciter. It is further the contention of the petitioner that the appeals preferred by the petitioner having been dismissed by the appellate authorities, as being not maintainable, cannot be sustained as these orders are not orders in real sense under the provisions of Rule 12.21 of the Punjab Police Rules but, as a matter of fact, is a punishment and, therefore, appealable under the provisions of the Punjab Police Rules, as applicable to Haryana, While the impugning order (Annexure P-6), which is an order, where a punishment of stoppage of three increments with commutative effect has been imposed, the counsel for the petitioner contends that the same haying been passed after holdings departmental enquiry, the order Annexure P-7 could not have been passed because that would amount to double jeopardy as one punishment has already been imposed upon the petitioner and he cannot be punished twice for the same lapse. 3. We have heard the counsel for the petitioner and have gone through the records of the case. The petitioner was appointed as a Constable in Haryana Police on 15.10.2003. The petitioner was served with a Memorandum of Charge dated 20.11.2005, wherein the allegations against the petitioner were that he was absent from duty from March 2005, while being posted in Police Lines, Gurgaon for a period of 40 days. Another charge-sheet was issued to the petitioner on 22.12.2005 with an allegation that he was deputed for traffic duty on 01.05.2005 but he did not report there and did not come back. He joined his duties after remaining absent for 31 days and thereafter, again proceeded on two days casual leave on 07.06.2005 and reported back after an absence of 151 days, thus, in total there was absence of 182 days. 4. A departmental enquiry was initiated against the petitioner on the first charge - sheet dated 20.11.2005 and the enquiry report was submitted on 17.08.2006. On the basis of the report of the Enquiry Officer, a show cause notice was issued to the petitioner on 19.08.2006 by the Superintendent of Police, Gurgaon-respondent No. 4 agreeing with the findings of the Enquiry Officer that he was provisionally of the opinion that why the petitioner should not be dismissed from service for the misconduct proved against him. The petitioner submitted his reply. The petitioner submitted his reply. The allegations against the petitioner in the disciplinary proceedings in the charge-sheet dated 20.11.2005 were proved and after considering the reply submitted by the petitioner and after considering the total record of the case of the petitioner, the disciplinary authority came to the conclusion that the absence of the petitioner from duty was deliberate. However, taking a lenient view, a punishment of stoppage of three future increments with permanent effect was imposed. An order dated 19.09.2006 (Annexure P-7) was passed by the Superintendent of Police, Gurgaon-respondent No. 4 discharging the petitioner from service with immediate effect under Rule 12.21 of the Punjab Police Rules as the petitioner was on probation. The order reads as under: "ORDER Const. Sanjeev Kumar 1079/GGN is hereby discharged from service with immediate effect under Rule 12.21 of the Punjab Police Rules as he is unlikely to prove an efficient police officer. Sd/- Superintehdent of Police, Gurgaon. No. 22507-11 Dated: 19-9-2006" Rule .12.21 of the Punjab Police Rules reads as under: "12.21. Discharge of (nefficients. - 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 enrollment. There shall be no appeal against an order of discharge under this rule." 5. A perusal of the above would show that the competent authority can, if it is of the opinion that the employee is unlikely to prove an efficient police officer, discharge him under this Rule during the period of probation. 6. The case of the petitioner is covered by the Full Bench judgment of this Court in the case of Sher Singh vs. State of Haryana, 1994(3) SCT 1, which has been upheld by the Honbie Supreme Court in the case of State of Punjab and others vs. Sukhwinder Singh, 2005 SCC (L&S)(sic) which has been followed by the Honble Supreme Court in State of Punjab vs. Avtar Singh, 2008 SCC (L&S) 573, wherein it has been held that even if the order of discharge under Rule 12.21 is based on certain allegations, which would otherwise call for disciplinary proceedings, if the order of discharge simpiiciter has been passed under Rule 12.21 of the Punjab Police Rules, the same cannot be said to be punitive in nature and therefore, cannot be said to be vitiated. It is not disputed by the counsel for the petitioner that the petitioner could have been dismissed from service on the ground of absence from duty as absence from duty, in the disciplinary force of the police, has been held to be gravest act of misconduct by this court as well as the Honbie Supreme Court. 7. We have also gone through the order dated 19.09.2006 vide which the punishment of stoppage of three increments with cummulative effect has been imposed. The misconduct on the part of the petitioner for being deliberately absent from duty for 40 days i.e. from 15.03.2005 to 24.04.2005 stands fully proved. The punishing authority has observed that this is an act of indiscipline and. therefore, exemplary punishment is required to be inflicted, which could be dismissal from service, as proposed in the show cause notice. It appears that keeping in view the young age of the petitioner, the punishing authority has taken a lenient view as this order of dismissal from service would have rendered the petitioner ineligible for future appointments in Government service. Therefore, a lenient view was taken by the punishing authority. Rather the petitioner has been favoured by the Superintendent of Police, Gurgaon by passing the order dated 19.09.2006 (Annexure P-7) vide which an order of discharge from service under Rule 12.21 of the Punjab Police Rules had been passed. On this ground also, we do not see any justification for interfering in the order dated 19.09.2006 (Annexure P-7) passed by respondent No. 4. 9. As regards orders Annexures P-8 and P-11 are concerned, the counsel for the petitioner has accepted that there is no provision for appeal under the Punjab Police Rules, as applicable to Haryana, against an order of discharge from service passed under Rule 12.21 of the Punjab Police Rules as mentioned in this rule itself. 9. In view of the above, we do not find any merit in this petition and dismiss the same in limine. Petition dismissed