Punjab-Haryana High Court
The State Of Punjab And Others vs Head Constable P Paramjit Singh on 19 April, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:052603
RSA-5576-2018 (O&M) 2024:PHHC:052603 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(221) RSA-5576-2018 (O&M)
Date of Decision : April 19, 2024
The State of Punjab and others .. Appellants
Versus
Head Constable Paramjit Singh .. Respondent
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Rohit Ahuja, Deputy Advocate General, Punjab,
for the appellants.
None for the respondent.
HARSIMRAN SINGH SETHI J. (ORAL)
1. Present regular second appeal has been filed challenging the
judgment and decree of the lower Appellate Court dated 29.09.2017 by
which, the judgment and decree of the trial Court dated 26.11.2015 has been
set aside and the suit filed by the respondent-plaintiff has been decreed.
2. Despite service, nobody has appeared on behalf of the
respondent-plaintiff.
3. It may be noticed that the respondent-plaintiff was appointed as
Constable in Punjab Police on 15.02.1991. While working as such, on
12.05.2006 an FIR was registered against the respondent-plaintiff under
Section 326, 324 and 34 of IPC. Respondent-plaintiff was proceeded
departmentally by initiating departmental proceedings, which culminated
into the awarding of punishment of stoppage of two increment vide order
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dated 13.03.2007. The appeal was preferred by the respondent-plaintiff,
which was rejected on 04.07.2007 and even the revision preferred before the
Inspector General, Jalandhar was partly accepted to the extent that the
punishment of stoppage of two increment was reduced to the punishment of
stoppage of one increment vide order dated 25.09.2007. Thereafter, the
respondent-plaintiff filed mercy petition before the Director General of
Police, Punjab, which was also rejected on 08.02.2008. The said orders
were challenged by the respondent-plaintiff by filing a civil suit on
23.10.2012. The trial Court, keeping in view the evidence and the facts
which came on record, dismissed the suit of the respondent-plaintiff vide
judgment/decree dated 26.11.2015. Respondent-plaintiff preferred appeal
against the said judgment and decree of the trial Court and the same was
allowed by the lower Appellate Court vide judgment and decree dated
29.09.2017. The lower Appellate Court has allowed the suit of the
respondent-plaintiff only on the ground that Rule 16.3 of the Punjab Police
Rules, 1934 has not been kept in mind while passing the order in the
departmental proceedings especially when the respondent-plaintiff had
been acquitted of the allegations alleged in the FIR by the Criminal Court
by giving him benefit of doubt. Hence, the present regular second appeal.
4. Learned counsel for the appellants-State argues that the orders
which were passed against the respondent-plaintiff after holding the
departmental enquiry are of the year 2007 and even the appeal filed by the
respondent-plaintiff against the said order was rejected in the year 2007 and
even the mercy petition was dismissed on 08.02.2008 hence, the civil suit
filed by the respondent-plaintiff on 23.10.2012 was beyond the limitation
and hence, could not have been entertained and the lower Appellate Court
failed to examine the said issue.
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5. I have heard learned counsel for the appellants and have gone
through the record with his able assistance.
6. From the facts, which have already come on record, it is clear
that qua the punishment orders challenged, the suit was clearly time barred
as the same was filed much after expiry of three years of limitation. As per
the settled principle of law settled by the Hon'ble Supreme Court of India in
Civil Appeal No.1852 of 1989 titled as State of Punjab and others vs.
Gurdev Singh and Ashok Kumar, decided on 21.08.1991, even the void
orders needs to be challenged within a period of three years. The relevant
paragraphs of the said judgment are as under:-
" 4. First of all, to say that the suit is not governed by
the law of Limitation runs afoul of our Limitation Act. The
statute of limitation was intended to provide a time limit for all
suits conceivable. Section 3 of the Limitation Act provides that
a suit, appeal or application instituted after the prescribed
"period of limitation" must subject to the provisions
of Sections 4 to 24 be dismissed although limita- tion has not
been set up as a defence, Section-2(J) defines the expression
"period of limitation" to mean the period of limitation
prescribed in the Schedule for suit, appeal or
application. Section 2(J) also defines, "prescribed period" to
mean the period of limitation computed in accordance with the
provisions of the Act. The Court's function on the presentation
of plaint is simply to examine whether, on the assumed facts
the plaintiff is within time. The Court has to find out when
the "right to sue" accrued to the plaintiff. If a suit is not
covered by any of the specific articles prescribing a period of
limitation, it must fail within the residuary article. The
purpose of the residuary article is to provide for cases which
could not be covered by any other provision in the Limitation
Act. The residuary article is applicable to every variety of suits
not otherwise provided for. Article 113 (corresponding
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to Article 120 of the Act 1908) is a residu- ary article for
cases not covered by any other provisions in the Act. It
prescribes a period of three years when the right to sue
accrues. Under Article 120 it was six years which has been
reduced to three years under Article 113. According to the
third column in Article 113, time commences to run when the
right to sue accrues. The words "right to sue" ordinarily mean
the right to seek relief by means of legal proceedings.
Generally, the right to sue accrues only when the 'cause of
action arises, that is, the right to prosecute to obtain relief by
legal means. The suit must be instituted when the right
asserted in the suit is infringed or when there is a clear and
unequivocal threat to infringe that right by the defendant
against whom the suit is insti- tuted (See: (i) Mt. Bole v. Mt.
Koklam and Ors., AIR 1930 PC 270 and (ii) Gannon
Dunkerley and Co. v. The Union of India, AIR 1970 SC 1433).
8. It will be clear from these principles, the party ag- grieved
by the invalidity of the order has to approach the Court for
relief of declaration that the order against him is inoperative
and not binding upon him. He must approach the Court within
the prescribed period of limitation. If the statutory time limit
expires the Court cannot give the declaration sought for.
11. The Allahabad High Court in Jagdish Prasad Mathur
and Ors. v. United Provinces Government, AIR 1956 All 114
has taken the view that a suit for declaration by a dismissed
employee on the ground that his dismissal is void, is gov- erned
by Article 120 of the Limitation Act. A similar view has been
taken by Oudh Chief Court in Abdul Vakil v. Secre- tary of
State and Anr., AIR 1943 Oudh 368. That in our opinion is the
correct view to be taken. A suit for declara- tion that an order
of dismissal or termination from service passed against the
plaintiff is wrongful, illegal or ultra vires is governed
by Article 113 of the Limitation Act The decision to the
contrary taken by the Punjab & Haryana High Court in. these
and other cases ((i)State of Punjab v. Ajit Singh,. [1988] 1 SLR
96 and (ii) State of Punjab v. Ram Singh, [1986] 2 SLR 379 is
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not correct and stands overruled."
7. In the present case, the order passed in the departmental
proceedings, appeal, revision and mercy petition, all were passed much
prior to three years period keeping in view the date of filing of the civil suit
i.e. 23.10.2012 hence, the suit filed by the respondent-plaintiff was beyond
limitation period and the lower Appellate Court has failed to appreciate the
said fact by allowing the appeal so as to allow the civil suit filed by the
respondent-plaintiff.
8. Even otherwise, keeping in view the settled principle of law
settled by the Hon'ble Supreme Court of India in Civil Appeal No.1763-
1764 of 2022 titled as State of Karnataka and another vs. Umesh, decided
on 22.03.2022, even after the acquittal, the departmental proceedings can be
held. The relevant paragraph of the said judgment is as under:-
" 13 The principles which govern a disciplinary enquiry
are distinct from those which apply to a criminal trial. In a
prosecution for an offence punishable under the criminal law,
the burden lies on the prosecution to establish the ingredients
of the offence beyond reasonable doubt. The accused is entitled
to a presumption of innocence. The purpose of a disciplinary
proceeding by an employer is to enquire into an allegation of
misconduct by an employee which results in a violation of the
service rules governing the relationship of employment. Unlike
a criminal prosecution where the charge has to be established
beyond reasonable doubt, in a disciplinary proceeding, a
charge of misconduct has to be established on a preponderance
of probabilities. The rules of evidence which apply to a
criminal trial are distinct from those which govern a
disciplinary enquiry. The acquittal of the accused in a criminal
case does not debar the employer from proceeding in the
exercise of disciplinary jurisdiction."
9. In the present case, the facts are that even in the criminal case,
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the complainant had turned hostile so as to acquit the respondent-plaintiff
by giving him the benefit of doubt hence, keeping in view the said fact,
even Rule 16.3 of the Punjab Police Rules, 1934 will not be applicable so as
to treat the disciplinary proceedings violative of the said provision. The
Rule 16.3 of the Punjab Police Rules, 1934 is as under:-
" 16.3. Action following on a judicial acquittal. - (1) When a
Police Officer has been tried and acquitted by a criminal court
he shall be not be punished departmentally on the same charge
or on a different charge upon the evidence cited in the criminal
case, whether actually led or not, unless -
(a) the criminal charge has failed on technical grounds; or
(b) in the opinion of the Court or of the Superintendent of
Police, the prosecution witnesses have been won over; or
(c) the Court has held in its judgment that an offence was
actually committed and that suspicion rests upon the police
officer concerned; or
(d) the evidence cited in the criminal case discloses facts
unconnected with the charge before the court which justify
departmental proceedings on a different charge; or (e)
additional evidence admissible under rule 16.25(1) in
departmental proceedings is available.
(2) Departmental proceedings admissible under sub-rule (1)
may be instituted against Lower Subordinates by the order of
the Superintendent of Police but may be taken against Upper
Subordinates only with the sanction of Deputy Inspector-
General of Police, and a police officer against whom such
action is admissible shall not be deemed to have been
honorably acquitted for the purpose of rule 7.3 of the Civil
Services Rules (Punjab), Volume I, Part I."
10. No other argument was raised.
11. Keeping in view the above, the judgment and decree of the
lower Appellate Court dated 29.09.2017 is perverse not only to the facts as
well as to the Rule 16.3 of the Punjab of Police Rules, 1934 as well as to
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that of the judgment of Hon'ble Supreme Court of India in Gurdev Singh's
case (supra) and Umesh's case (supra) hence, the same is set aside. The
judgment and decree of the trial Court dated 26.11.2015 is revived and the
suit filed by the respondent-plaintiff is dismissed.
12. The present regular second appeal is disposed of in above
terms.
13. Any civil miscellaneous application pending if any, also stands
disposed of.
April 19, 2024 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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