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2008 DIGILAW 1809 (PNJ)

Mukesh Kumar (Ex Constable) v. State Of Haryana

2008-10-30

AUGUSTINE GEORGE MASIH, GILL, MEHTAB

body2008
Judgment Augustine George Masih, J. 1. The petitioner herein was selected and appointed as Constable and he joined as such on 13.11.2000. He was posted in 4th Battalion, Haryana Armed Police. On 13.2.2003, the petitioner got a telephonic message that his father is seriously ill and admitted in Bhaskar Hospital, Hisar. The father of the petitioner remained admitted in the Bhaskar Hospital, Hisar from 8.2.2003 to 21.5.2003 and since the petitioner was the only male member to look after him, he stayed back during his illness and admission in hospital. A show cause notice dated 10.6.2003 (Annexure P-1) was issued to the petitioner by the Commandant 4th Battalion, Haryana Armed Police, Madhuban respondent No. 4, whereby he was called upon to explain his absence from duty from 13.2.2003 to 21.5.2003 i.e. a total of 97 days, 9 hours and 35 minutes without any leave or prior permission of the Competent Authority. It was further mentioned in the said notice that this was an act of indiscipline which showed that he was not reliable and was unlikely to prove an efficient police officer and before passing of the order of discharge under Rule 12.21 of the Punjab Police Rules, 1934 (for short the 1934 Rules), as applicable to Haryana, the petitioner is being given an opportunity to show cause against the proposed action contemplated against him and was given 15 days time to submit his representation. In response to the said show cause notice, the petitioner submitted his reply stating therein that on getting the Information about the admission of his father on telephone, he was shocked and since there was no one else to look after him in the hospital and he was the only son who could take care of his father as his other brothers were living separately with their families, he immediately rushed to the hospital at Hisar. Petitioner further submitted that it was neither his intention to abstain from duty but because of the bonafide reasons, he had gone out to perform his duties as a son. 2. On consideration of the repiy submitted by the petitioner, the Commandant 4th Battalion, Haryana Armed Poiice, Madhuban vide.his order dated 26.6.2003 (Annexure P-3) passed an order of discharge which reads as follows: "ORDER No.............../Steno dated Madhuban, the 26.06.2003 Constable Mukesh Kumar No. 4/813 is unlikely to prove an efficient Police Officer. 2. On consideration of the repiy submitted by the petitioner, the Commandant 4th Battalion, Haryana Armed Poiice, Madhuban vide.his order dated 26.6.2003 (Annexure P-3) passed an order of discharge which reads as follows: "ORDER No.............../Steno dated Madhuban, the 26.06.2003 Constable Mukesh Kumar No. 4/813 is unlikely to prove an efficient Police Officer. As such he is hereby Discharged from Service of Police force with immediate effect i.e. 26.6.2003 F.N. under P.P.R. 12.21. Sd/- Commandant. 4th Bn. HPA, Madhuban" 3. Thereafter, the petitioner preferred a representation before the Inspector General, Haryana Armed Police, Madhuban which was rejected vide order dated 4.2.2005 (Annexure P-4). Against the said order, an appeal/representation dated 1.3.2005 (Annexure P-5) was preferred by the petitioner before the Director General of Police, Haryana, Chandigarh which, according to the petitioner, is still pending before the Director General of Police and no decision thereon has been taken. 4. The petitioner through this writ Petition has thus, challenged the order dated 26.6.2003 (Annexure P-3) passed by the Commandant-respondent No. 4 discharging him from service under Rule 12.21 of the 1934 Rules, as applicable to Haryana, and the order dated 4.2.2005 (Annexure P-4) passed by the Inspector General of Police-respondent No. 3 wherein the representation preferred by the petitioner has been rejected. 5. It is the contention of the petitionerthat the order passed under Rule 12.21 of the 1934 Rules, as applicable to Haryana, has been although worded as a simpliciter order of discharge but the same is based upon the allegations of wilful absence from duty without any leave or intimation and therefore, is based upon mtsconduct. The respondents if were to take action against the petiticner, ought to have proceeded with the departmental enquiry and after holding such an enquiry, would have been justified in discharging him from service if a finding about his wilful absence from duty would have come in the departmental proceedings. The order dated 26.6.2003 (Annexure P-3) is primarily based upon specific allegations of misconduct against the petitioner and, therefore, is not a simpliciter order of diseharge but a penal one and thus being punitive in nature, cannot be sustained in the light of the fact that no departmental proceedings have been initiated against him which would be hit by the provisions of Rule 16.24 of the 1934 Rules and Article 311 of the Constitution of India. He has further contended that his representation has been wrongly rejected by the Inspector General of Police against which his appeal/representation is pending before the Director General of Police and therefore, a direction be issued to the Director General of Police to decide the same expeditiously. 6. Upon notice having been issued, the respondents have put in appearance and have filed their reply. The respondents have placed reliance on the provisions of Rule 12.21 of the 1934 Rules, as applicable to Haryana, to submit that as per the said Rule, a Constable, if in the opinion of the Superintendent at any time within three years of his enrollment, is found unlikely to prove an efficient police officer can be discharged. This Rule itself gives the powers of discharge to the Superintendent of Police. The three years initial period in service is the period during which he is under surveillance and is being watched and kept under close supervision. As per the said Rule, he does not have an absolute right to hold the post and his Services are terminable at any time during the period of three years. He can secure his Position in service only if he is likely to prove an efficient police officer during these three years and if on consideration of the relevant material, the Superintendent of Police finds that a particular Constable is not active, disciplined, seif- reliant, punctual, sober, courteous or straightforward or for any other reason the Superintendent of Police comes to an opinion reasonably that he is not likely to prove an efficient police officer, the provisions as provided under the Punjab Police Rufes, 12.21 can be invoked leading to the discharge of such police officer. In the present case, the petitioner remained absent without leave and information from duty for 97 days, 9 hours and 35 minutes. A show cause notice was also given to him to see if he had some justifiable reason. The reason put-forth by the petitioner was not satisfactory as per the opinion of the Commandant who is the Competent Authority under the Rules. Considering all the aspects of the matter, the petitioner was discharged from service. 7. A show cause notice was also given to him to see if he had some justifiable reason. The reason put-forth by the petitioner was not satisfactory as per the opinion of the Commandant who is the Competent Authority under the Rules. Considering all the aspects of the matter, the petitioner was discharged from service. 7. The respondents have further relied upon the Full Bench judgment of this Court in the case of Stier Singh vs. State of Haryana andothers, 1994 (1) PLR 456 (attached as Annexure R-l to the written Statement) to contend that the submissions as made by the petitioner are fully covered against him. 8. We have heard counsel for the parties and have gone through the records of the case. Counsel for the petitioner has argued that the order of discharge dated 26.6.2003 (Annexure P-3) passed under Rule 12.21 of the Punjab Police Rules, as applicable to Haryana, is punitive in nature for the reason that the same is based upon the alleged misconduct of absence from duty by the petitioner and therefore, cannot be termed as an order of discharge simpliciter and therefore, violative of Rule 16.24 as well as Article 311 of the Constitution of India. Ccinsel for the respondent- State has however, relied upon the Full Bench judgment of this Court in Sher Singhs case(supra). 9. We are of the considered view that the case of the petitioner is covered against him by the ratio of the Full Bench judgment of this Court in Sher Singhs case (supra). The said judgment has been considered by the Honble Supreme Court in the case of State of Punjab vs. Sukhwinder Singh, 2005 SCC(L&S) 705 and State of Punjab vs. Constable Avtar Singh, 2008(2) SCC(L&S) 573 wherein the judgment of this Court in Sher Singhs case (supra) has been approved. The Honble Supreme Court has held that if the language of the order of discharge under Rule 12.21 does not reflect anything which would debar the appointment of the employee for future employment, the same is to be termed as an order of discharge simpliciter. In the present case, the order as reproduced above, is only based upon the provisions of Rule 12.21 of the Punjab Police as applicable to Haryana, and only has been passed in accordance with the said Rule. The said order cannot be termed as punitive in nature. In the present case, the order as reproduced above, is only based upon the provisions of Rule 12.21 of the Punjab Police as applicable to Haryana, and only has been passed in accordance with the said Rule. The said order cannot be termed as punitive in nature. The Full Bench of this Court in Sher Singhs case (supra) has categorically held as follows ; "(1) A constable can be discharged from service under Rule 12.21 at any time within three years of his enrolment in spite of the fact that there is a specific allegation which may even amount to misconduct against him; (2) A Superintendent of Police can form his opinion regarding the likelihood or otherwise of a constable making a good police officer not only on the basis of the periodic reports contemplated under Rule 19.5 but also on the basis of any other relevant material; and (3) The provisions of Rule 16.24 and Article 311 shall be attracted only when the punishing authority decides to punish the constable."