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2010 DIGILAW 1883 (PNJ)

Ex-constable Dalel Singh v. State Of Haryana

2010-06-29

H.S.BHALLA

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Judgment H.S.Bhalla, J. 1. The petitioner lost his bread on 2nd of August, 1990 when he was discharged from service through impugned order (Annexure P-1). In order to revive his bread, the petitioner had no other option but to knock at the door of this court by filing the present petition. In order to appreciate the point involved in this case, it is necessary to reproduce impugned order dated 2nd of August, 1990, which reads as under:- "Constable Dalel Singh No. 373/Ambala is unlikely to prove an efficient Police Officer as he absented himself from Police Lines Ambala on 28.7.1990 without any leave or permission and is continuously absent. He is hereby discharged with immediate effect under P.R. 12.21 Vol.11. Issue orders in O.B. No. 32939-43 Dated 3.8.90 SdA Superintendent of Police, Ambala, 2.8.1990" OB/CEC/OASI/Acctt./RI 2. The petitioner, at that relevant time, was working as a Constable in the Punjab Police Department. It is crystal clear from the order quoted above that he was discharged from service and as per the case of the respondent authorities, the ,said order was an order ofsimpliciter discharge as perrule 12.21 of the Punjab Police Rules, 1934 ( hereinafter referred to as "the Rules"). As per the stand of the State, since the impugned order of removal was of discharge, simpliciter under rule 12.21 of the Rules, it was not necessary for the authorities to follow the gamut of departmental inquiry as enjoined by rule 16-24-of the said rules and that the order did not cast any stigma on the petitioner and that as, admittedly, he has not completed three years of police service, rule 12.21 of the Rules could be invoked by the authorities. 3. Having heard learned counsel for the parties, to my mind, it is impossible on the facts of this case to sustain the impugned order. The reason is obvious. The order clearly spells out that when impugned order was passed, what was raking in the mind of the Punishing Authority at the time of passing the impugned order is report of absence. The reason is obvious. The order clearly spells out that when impugned order was passed, what was raking in the mind of the Punishing Authority at the time of passing the impugned order is report of absence. Even in the reply filed by the respondent-State it is categorically pleaded that petitioner was a habitual absentee from his official duties and he remained absent from government service without any leave or permission from the competent authority on numerous occasions and was punished for the same and this fact has been specifically mentioned in the impugned order. It is ipso facto clear that the present order was passed on account of his absence continuously. A mere look at the termination order shows that aspersions regarding the conduct of the petitioner have been cast in the order. The petitioner has been stigmatized with the charge of absence. The order itself shows that the authorities concerned ought to have dismissed the petitioner from service because of his alleged absence charges and in such like circumstances, I fail to understand as to how this order could be treated as an order discharging the petitioner from service without casting any stigma. It is difficult to appreciate how rule 12.21 of the Rules on the facts of the present case could have been pressed in service for passing the impugned order. The said rule reads as under: "12.21. Discharge or Inefficient :- 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." If any order under rule 12.21 of the Rules has to be passed which can stand scrutiny of Court and can be said to be legal, valid and falling within the four corners of the said Rule without casting any aspersion or stigma on the person concerned, simpliciter mentioning that his work as a constable is found not satisfactory, can suffice. But, in the instant case unfortunately is not the language in which the impugned order was couched. It went beyond the four corners of Rule 12.21 and clearly stigmatized the petitioner and tried to dismiss him from service for the alleged charge of absence for which appropriate inquiry under Rule 16.24 of the Rules against the petitioner was I required to be initiated. It went beyond the four corners of Rule 12.21 and clearly stigmatized the petitioner and tried to dismiss him from service for the alleged charge of absence for which appropriate inquiry under Rule 16.24 of the Rules against the petitioner was I required to be initiated. It is now well settled by a catena of decisions of this Court that in order to be treated as an order of discharge simpliciter it, on the face of it, should not cast any aspersion or stigma on the person concerned and he must simply be asked to see the gates on the ground of unsatisfactory work. Rule 12.21 itself fell for consideration of the Apex Court in the case of State of Haryana & another v. Jagdish Chander, 1995(2) S.C.T. 427: 1995(2) SCC 567:1995(1) SLR 696 (SC). The Apex Court clearly observed that findings of habitual absence and indiscipline necessarily cast a stigma on the career of the delinquent and would be an impediment for any further employment else where. Consequently, such an order could not be sustained under Rule 12.21 of the Rules. 4 The aforesaid decision squarely applies to the facts of the present case. For all these reasons, therefore, this writ petition is allowed with costs. Impugned order dated 2.81990 (Annexure P-l) is set aside. Petitioner shall be reinstated. However, I make it clear that If respondent-authorities feel that the petitioner is required to be dealt with departmentally as per rule 16.24 of the Rules for the alleged misconduct in question, it will be open to the respondents to proceed against him in accordance with law. It is also made clear that in case joining report is submitted by the petitioner, he will be permitted to resume his duties within 3 0 days from the date of submission of his joining report. The present judgment will not come in the way of initiation of departmental proceedings against the petitioner if so advised. It is further made clear that the petitioner shall be entitled to all the benefits of seniority etc. in accordance with law except for wages for the period during which he remained out of job.