Palwinder Singh vs State Of Punjab & Ors
2022 Latest Caselaw 10372 P&H

      IN THE HIGH COURT OF PUNJAB & HARYANA AT
                   CHANDIGARH

                                 CWP No.13287 of 2017
                                 Reserved on 09.08.2022
                                 Pronounced on: 05.09.2022

Palwinder Singh (deceased, now represented by LRs.)         .... Petitioner


                                 Versus


State of Punjab and others                                  .... Respondents

CORAM: HON'BLE MS. JUSTICE JAISHREE THAKUR


Present:-    Ms. Alka Chatrath, Advocate, for the petitioner.

             Mr. Pawan Sharda, Senior DAG, Punjab.
                              ----

JAISHREE THAKUR.J

1. The petitioner herein seeks to challenge the order dated

01.12.2007, Annexure P-1, whereby he was discharged from service as SPO

on the basis of registration of an FIR. However, on acquittal, he seeks

reinstatement and also seeks directions to consider his case for appointment

as Constable and to issue him constabulary number.

2. The perusal of the paper book would go on to show that the

petitioner, after completing initial training in the year 1988, was appointed as

Special Police Officer in the State of Punjab. However, in the year 2002, the

respondent department took a decision for absorption of SPOs as Constables

in the Police Department and accordingly, a test was conducted by the

Central Recruitment Board. The petitioner participated in the test. However,

since he was nominated as accused in FIR No.113, dated 27.11.2007, under

Sections 409, 217, 120-B IPC and Section 15 of NDPS Act registered at

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Police Station Harike, he was discharged from service vide order dated

01.12.2007. In the said FIR, the petitioner as well as the co-accused Surinder

Kumar, Head Constable, were acquitted of the charges leveled against them

vide judgment dated 25.09.2012, Annexure P-2. On being acquitted, the

petitioner approached the respondents and submitted representation dated

13.05.2013, however, no action was taken on his representation. On his

repeated requests, he was informed that since he was a SPO and not working

as regular Constable, his case for reinstatement cannot be considered.

Thereafter, he came to know that his name was not included in the list for

absorption as Constable. He sought information under RTI Act where he

found his name figured in the list of candidates to be absorbed for

Constables.

3. As regards Surinder Kumar, co-accused in the FIR, who was

placed under suspension like the petitioner, and was awarded punishment of

stoppage of two annual increments, in appeal, his punishment order was set

aside and he was reinstated in service with all consequential benefits. But the

petitioner was treated differently. He was not taken back in service. He sent a

legal notice dated 22.03.2017, but it was not replied. Hence, the present

petition.

4. Learned counsel appearing on behalf of the petitioner would

argue that the FIR against the petitioner was registered on 27.11.2007 and

after three days, without following due procedure, he was discharged from

service vide order dated 01.12.2007. He along with co-accused Surinder

Kumar faced trial and ultimately, vide judgment dated 25.09.2012; both were

acquitted of the charge by giving the benefit of doubt. It is argued that

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it has been held by the Supreme Court in Joginder Singh Versus Union

Territory of Chandigarh and others 2015 (2) SCC 377 that once the

Government servant/alleged accused is acquitted, he has the right to hold

public office on being absolved from such charges. He has, therefore, prayed

to consider the case of the petitioner for appointment as Constable and to

issue him constabulary number as he had been included in the list (Annexure

P-5). Counsel would rely on similar cases where the constables who had

been dismissed from service on account of FIR pending were reinstated in

service, namely Gurmeet Singh (deceased) through his wife Kirpal Kaur

Versus State of Punjab and others, 2014 (11) R.C.R.(Civil) 198; CWP No.

14975 of 2009 titled as Pawan Kumar (Constable) Versus State of Punjab

and others, decided on 13.01.2016 and CWP No. 9848 of 2013 titled as

Baljit Singh Versus Director General of Police, Punjab and others, decided

on 06.05.2016.

5. On the other hand, learned State counsel would argue that since

the work and conduct of the petitioner was not found satisfactory and he was

arrested in FIR No.113, he was discharged from his services. The order of

discharge was passed keeping in view Rule 12.14 of Punjab Police Rules,

1934 and policy dated 11.05.2009 which specified that the department

should decline enlistment into police those Special Police officers if their

acquittal is on technical grounds, there is benefit of doubt or where the

witnesses have resiled or there is a compromise between the complainant and

the accused. It is submitted that though the petitioner had participated in the

test for absorption as Constable, but due to his involvement in the FIR, he

was discharged from the post of SPO. Moreover, the instant petition is

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not maintainable as he was acquitted in the year 2012 and he filed the instant

petition on 01.06.2017, which is time barred. The petitioner was acquitted on

the basis of benefit of doubt, therefore, he is not entitled for reinstatement.

6. I have heard learned counsel for the petitioner as well as learned

State counsel and have also perused the paper book.

7. The question that would arise for consideration is whether the

petitioner, who was enlisted as a SPO and also being considered for

appointment as Constable, can be offered appointment after he has been

acquitted in the FIR he was arrested under?

8. The facts are not in dispute. The petitioner, who was initially

appointed as SPO and was considered for absorption as Constable, was

discharged from service of SPO from his district w.e.f. 27.11.2007 on the

ground of his arrest under FIR No.113, dated 27.11.2007, under Sections

409, 217, 120-B IPC and Section 15 of NDPS Act registered at Police

Station Harike. He now seeks appointment as a Constable on the ground that

he stands acquitted in the said FIR vide judgment dated 25.09.2012.

Immediately after his acquittal, he approached the authorities for

reinstatement vide his request dated 13.05.2013, however received no

response. He then approached the authorities seeking information as to

whether his name was on the list prepared for absorption from SPO to the

rank of Constable and reply was furnished on 28.05.2016. The petitioner also

came to know that the Head Constable, who was named in the FIR along

with him and who had been dismissed from service, had been reinstated.

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9. Policy dated 11.05.2009 which has been relied upon by the

respondent State to deny reinstatement, specified that the department should

decline enlistment into police those Special Police Officers if their acquittal

is on technical grounds, there is benefit of doubt or where the witnesses have

resiled or there is a compromise between the complainant and the accused,

has already been quashed in Pawan Kumar (Constable)'s case (supra). In

the instant case, the discharge order is simpliciter on the basis of a FIR being

registered against him, in which proceedings he stands acquitted. The reading

of the judgment as passed by the trial Court would reveal that the petitioner

was acquitted. The trial Judge, on appreciation of the evidence, concluded

that there was no question that the accused had misappropriated the poppy

husk which was the charge levelled against the petitioner.

10. The petitioner was discharged from service only on account of

the registration of FIR. In similar circumstances, in the matter of Gurmeet

Singh (deceased) through his wife Kirpal Kaur's case (supra), the learned

Single Judge allowed the writ petition where the claim of a dismissed SPO

for reinstatement after being acquitted was allowed. The said judgment noted

instructions dated 14.05.2008 issued by the Director General of Police,

Punjab wherein it was decided to treat SPO's at par with Punjab Police

personnel. On the basis of said letter, the case of the deceased petitioner was

considered under Rule 16.3(1) of the Punjab Police Rules, 1934 and he was

ordered to be reinstated.

11. In a similar matter in Baljit Singh's case (supra), the petitioner

who was working as SPO was discharged, being a daily wager, on account of

the FIR that was registered against him. On acquittal, he approached the

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department to be taken back in service and his request was rejected, as was

the appeal filed. The writ petition was allowed by relying on Rule 16.2 (2) of

the Punjab Police Rules, 1934 where an enrolled police officer who has been

has been dismissed and then acquitted, is liable to have his order of dismissal

reviewed. The said judgment also relied upon a decision of the Division

Bench of this Court and observed :

"In similar circumstances, a Division Bench of this Court in CWP No.3196 of 1997 Raman Kumar Vs. State of Punjab and others decided on 09.09.1998 has also set aside the order of discharge on the ground that once the sole reason for discharge was lodging of the FIR, then on account of acquittal the S.P.O. was liable to be taken back in service. The relevant part of the judgment reads as under:-

"The solitary ground on which the petitioner was discharged from service vide dated 29.1.1996 (Annexure P-1) is that he was involved in a case under the Prevention of Corruption Act. The petitioner was acquitted by the Special Judge, Patiala, vide judgment dated 7.9.1996 Annexure P- 2 by observing that there was not even an iota of evidence against him to connect him with the crime and that the prosecution had failed to prove its case against him. As such, he was acquitted honorably. Infact, the order Annexure P-1 is bad in law inasmuch as it indicted the petitioner before he could be tried by a court of competent jurisdiction. After his acquittal in the case, the petitioner cannot be denied reinstatement in service. In other words, the State is bound to take him back in service. The stand of the State that the petitioner was appointed on daily wages when he was discharged from

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service, is not supported by any document on the record. Moreover, the services off the petitioner were not dispensed with as no longer required, as is usually done in the cases of ad hoc/daily wage basis appointments. In this case, it may be stated, at the pain of repetition, that the only ground on which the petitioner was discharged from service was registration of a case against him under the Prevention of Corruption Act, in which he stands acquitted.

For the afore-mentioned reasons, this petition deserves to be allowed. Accordingly, the same is allowed and the order Annexure P-1 whereby the petitioner was discharged from service is hereby quashed with a direction to the respondents to reinstate him as S.P.O. on the same terms and conditions on which he was serving from service. However, the petitioner shall not get back wages between the date of his discharge from service i.e. 24.1.1996 and the date of this order."

12. The plea of the respondent State that the writ petition ought to

be dismissed on the ground of limitation is liable to be rejected since the

petitioner had approached the department for reinstatement after his acquittal

in 2013 itself, and then proceeded to get information under the RTI Act

regarding the fact whether his name had been approved for absorption as

Constable. He had filed two RTI applications and then on receiving a

positive confirmation, sent a legal notice through his advocate. Therefore, it

cannot be said that he has been lax in approaching the courts for redressal of

his grievance.

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13. Consequently, this Court is of the opinion that the writ petition

deserves to be allowed. Ordered accordingly. Resultantly, the order dated

01.12.2007, Annexure P-1, whereby the petitioner was discharged from the

service of SPO is hereby quashed. The respondent shall take back the

petitioner and enlist him as SPO subject to the verification of his character. If

it is found that the persons along with the petitioner on the recommended list

have been absorbed as Constables, then he would also be entitled to

absorption as Constable. However, it is made clear that the petitioner will not

be entitled for any financial benefits for the period he remained out of service

on the principle of "no work, no pay" and is only entitled for the notional

benefits. Since the petitioner has since expired and his legal heirs are brought

on record, the legal heirs would be released all the consequential benefits in

accordance with rules.

                                               (JAISHREE THAKUR)
                                                     JUDGE
05.09.2022
sanjeev      Whether speaking/reasoned:        Yes/No
             Whether Reportable:               Yes/No




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