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2012 DIGILAW 1615 (PNJ)

Harminder Singh v. State of Punjab

2012-11-15

G.S.Sandhawalia

body2012
JUDGMENT Mr. G.S. Sandhawalia J. (Oral):- The present writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the orders dated 29.05.1992 (Annexure P-5), whereby one year service of the petitioner was forfeited permanently and orders dated 25.03.1993 (Annexure P-7), whereby the appeal of the petitioner was dismissed and the orders dated 17.11.1993 (Annexure P-9), whereby the revision petition of the petitioner was dismissed. A further prayer has also been made for granting the petitioner all consequential benefits of pay and arrears etc. 2. The pleaded case of the petitioner is that he was working as Head Constable in the Punjab Police and was posted at Nangal and on 02.04.1990, he was posted as security guard to the Deputy Commissioner’s residence at Ropar. On the night, intervening 01/02.04.1990, at about 10 a.m., the petitioner, after informing his colleagues, had gone to take his meals. A checking was made by the Senior Superintendent of Police, Ropar and on enquiry, the colleagues of the petitioner told respondent No.3 that the petitioner had gone to take his meals. Respondent No.3, without hearing the colleagues of the petitioner and without calling any explanation from the petitioner, marked the petitioner absent and ordered a regular enquiry. The Superintendent of Police (Operation) served upon the petitioner summary of allegations and list of witnesses to which the petitioner submitted his reply. The enquiry officer, without considering the reply of the petitioner and the evidence led by the petitioner, submitted his report, holding the petitioner negligent of the charge levelled against him. A show cause notice was served upon the petitioner for dismissal from service and the petitioner submitted his reply. Respondent No.3, without considering the reply of the petitioner, awarded the punishment of forfeiture of five years approved service of the petitioner with cumulative effect. A departmental appeal was preferred to the Deputy Inspector General of Police, Patiala Range which was accepted and on 20.05.1991 and he referred the matter to Senior Superintendent of Police, Patiala to pass appropriate orders. A show cause notice was served upon the petitioner for forfeiting one year’s approved service with cumulative effect. The petitioner submitted his reply but the punishing authority was not satisfied and it passed order dated 29.05.1992, forfeiting one year service of the petitioner permanently. A show cause notice was served upon the petitioner for forfeiting one year’s approved service with cumulative effect. The petitioner submitted his reply but the punishing authority was not satisfied and it passed order dated 29.05.1992, forfeiting one year service of the petitioner permanently. The appeal filed before the Deputy Inspector General of Police, Ludhiana Range was dismissed without affording any opportunity of hearing and thereafter, the revision petition was also dismissed by respondent No.2. Accordingly, the writ petition was filed wherein, as per para No.16 (ix) of the petition, submission was made that punishment imposed upon the petitioner was not enumerated in the Punjab Police Rules, 1934. 3. In the written statement filed on behalf of respondents No.1 to 3, it was submitted that the petitioner was marked absent and no enquiry was required to be made from the co-employees of the petitioner or call the explanation of the petitioner. After receiving the report from the enquiry officer, show cause notice was issued to the petitioner for dismissal from service and the petitioner had submitted his reply and thereafter, forfeiture of one year of approved service, with cumulative effect, had been ordered. The allowing of the appeal by the appellate authority was admitted. It is also submitted that the appeal and the revision petition had been dismissed as per rules. Regarding para No.16(ix), as to whether the punishment could be imposed as provided under the Punjab Police Rules, 1934, reply was to the extent that it was wrong and hence denied and no specific averment was made as to whether there was any such provision in the rules for forfeiture of service. 4. Counsel for the petitioner has limited his argument that as per the Punjab Police Rules, 1934, the order of forfeiture of one year service was not permissible and only stoppage of increment or forfeiture of approved service for increment was permissible. He has also placed reliance upon the judgment of this Court passed in Punjab State Vs. Joginder Singh 1992 (3) SCT 671. 5. Counsel for the State, on the other hand, has defended the said action of the department and placed reliance upon the judgment of this Court passed in Home Secretary to Government Punjab, Chandigarh Vs. Gehal Singh 1993 (3) SCT 350 & Jagbir Singh Vs. Joginder Singh 1992 (3) SCT 671. 5. Counsel for the State, on the other hand, has defended the said action of the department and placed reliance upon the judgment of this Court passed in Home Secretary to Government Punjab, Chandigarh Vs. Gehal Singh 1993 (3) SCT 350 & Jagbir Singh Vs. State of Haryana & others 2003 (3) SCT 196 to contend that the said order could have been passed by the authority. 6. After hearing counsel for the parties, this Court is of the opinion that the matter is covered squarely against the State. This Court in CWP No.9146 of 1994 titled Constable Sarjinder Singh Vs. State of Punjab & others decided on 03.10.2012, has already decided the said issue and held that the forfeiture of approved service could not be imposed as the punishment was not provided under the Rules, while placing reliance upon Ram Pat Vs. Union of India & others 1984 (3) SLR 756 & State of Punjab Vs. Inder Sain Sharma 1968 SLR 519, relevant portion of the said judgment reads as under: “7. After hearing counsel for the parties and perusing the record, this Court is of the view that the impugned order cannot be justified. The petitioner has placed on record judgment of the civil Court decided on 24.04.1989 whereby the suit for declaration of the petitioner was allowed. A perusal of the said judgment go on to show that the civil Court came to the conclusion that the penalty of forfeiture of the approved service could not be imposed as it is not provided under the Rules. Reliance was also placed upon Ram Pat Vs. Union of India & others 1984 (3) SLR 756 and State of Punjab Vs. Inder Sain Sharma 1968 SLR 519 by the Sub-Judge, 1st Class, Jalandhar. xxx xxx xxx 10. Counsel for the petitioner has also placed reliance upon Punjab State Vs. Joginder Singh 1993 (3) Service Cases Today 671 wherein also it had been held that where the Rules did not provide forfeiture of service, the same could not be done and reliance was placed upon the judgment passed in the case of Ram Pat (supra) to hold that the right to gratuity, pension and seniority cannot be effected in this manner.” 7. The judgment of Home Secretary to Government Punjab, Chandigarh (supra) is only on the issue of the competent officer who can pass the punishment order and does not deal with the issue which is arising in the present case. Similarly, the judgment rendered in Jagbir Singh (supra) pertains to the issue of grave misconduct on account of absence from duty and is not applicable in the facts of the present case. 8. In normal circumstances, the matter would have been remanded back to the punishing authority to pass a fresh order, in accordance with the rules. But counsel for the petitioner states that the petitioner already stands retired from service. This fact stands verified from the counsel for the State on instructions from Head Constable, Roshan Lal. Accordingly, this Court feels that no useful purpose would be served in remanding the matter to the punishing authority. 9. Accordingly, order dated 29.05.1992 and the consequent orders dated 25.03.1993 and 17.11.1993 are set aside. The petitioner shall be entitled for the monetary benefits within a period of three months from the receipt of the certified copy of this order. 10. Writ petition is, accordingly, allowed in the abovesaid terms. --------0.B.S.0------------