Punjab-Haryana High Court
Vinay Chand vs The Punjab State Home Department, ... on 19 January, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:007932
RSA-1495-1996 (O&M) 1 2024:PHHC:007932
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1495-1996 (O&M)
Date of decision: 19.01.2024
Reserved on : 08.01.2024
Vinay Chand
....Appellant
Versus
State of Punjab and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Rajiv Atma Ram, Sr. Advocate with
Mr. Sandeep Kumar, Advocate for the appellant
Mr. Gurpreet Singh, Addl. AG, Punjab
ANIL KSHETARPAL, J
1. The plaintiff has filed this Regular Second Appeal to
assail the correctness of the judgment and decree passed by the First
Appellate Court, which in turn has reversed the judgment and
decree passed by the trial court.
2. In order to comprehend the issue involved in the
present case, some relevant facts, in brief, are required to be noticed.
3. The appellant (plaintiff in the suit) was appointed as a
Constable in Punjab Armed Police at Jalandhar Cantt. on
13.06.1990. He claims that on oral permission from the Drill
Inspector, he left the Punjab Armed Police Complex because his
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wife and sister came and informed that his brother has been taken
away by BSF after an encounter in the next village and he had no
place to keep them at PAP Complex. On 20.11.1990, he came back
and joined the duty, however, a show cause notice was issued to him
on 25.01.1991, under Rule 12.21 of the Punjab Police Rules, 1934
(hereinafter referred to as '1934 Rules') to which reply was
submitted by him. On 08.03.2019, he was discharged from the
Punjab Police. Thereafter, he filed a civil suit on 04.06.1991, for the
grant of decree of declaration that the order dated 06.03.1991,
passed by the Commandant, 80th Battalion, PAP, Jalandhar Cantt
actually amounts to his removal from service and therefore, it is
illegal, unlawful, void and unconstitutional. He also sought
declaration that the aforesaid order is not binding on him and he has
continued to serve the department.
4. The defendants, while contesting the suit, asserted that
the work and conduct of the plaintiff was not satisfactory and he
earned two bad entries to his credit for remaining willfully absent
from duty. He was also found absent on 19.11.1990, for which an
entry in the daily diary was made. He left PAP complex without any
permission from the Drill Inspector or any other competent officer
and he has been discharged under Rule 12.21 after carefully
watching his overall performance.
5. Replication was filed by the plaintiff and thereafter, the
issues were framed. The trial court held that the impugned order is
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not his simplicitor discharge and a detailed departmental inquiry
into the allegations of misconduct was necessary. The State of
Punjab filed the first appeal, which has been accepted by the First
Appellate Court on the ground that the order of discharge casts no
stigma on the appellant and he has been discharged in accordance
with Rule 12.21 of the 1934 Rules. While relying upon a Full
Bench judgment in Sher Singh vs. State of Haryana (1994) 2 SLR
100 the First Appellate Court held that for a period of first three
years, a Constable remains on a probation and he may be discharged
by the Superintendent, at any time within, three years of enrollment
if his work ethic and conduct is not satisfactory as per the police
force's requirement.
6. Heard the learned counsel representing the parties at
length and with their able assistance perused the paperbook,
alongwith the requisitioned record which is available in the digital
form.
7. At this stage, it is considered appropriate to carefully
examine the contents of the order passed by the Commandant 80th
Battalion, Jalandhar on 06.03.1991. It has been noticed that the
plaintiff was reported present on 20.11.1990, after having remained
absent for one day. On earlier two occasions, he was found absent
for a period of three days, which was subsequently treated as leave
without pay, whereas on the second occasion he was found absent
for three hours and fifteen minutes. The report sent by the Police
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Captain/Incharge Training was also examined, wherein it was stated
that this employee habitually remains absent. It was stated that on
18.02.1991, when he was given personal hearing, his uniform was
dirty, not well maintained, not worn properly. Ultimately, the
Commandant formed an opinion that he is not likely to become a
good officer and therefore, he was discharged from 06.03.1991, and
the period of his absence as leave without pay was ordered to be
treated.
8. Rule 12.21 of the Punjab Police Rules, 1934 reads as
under:-
"12.21 Discharge of Inefficients: 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
enrolment. There shall be no appeal against an
order of discharge under this rule."
9. Learned counsel representing the appellant, while
referring to Rule 19.3, 19.5 of 1934 Rules submits that the
impugned order is a stigmatic order, which cannot be issued without
holding a proper departmental inquiry. He further submits that this
Court may kindly lift the veil and come to a conclusion that the
order of discharge passed against the appellant is an order of
dismissal in disguise. It is further submitted that in the show cause
notice, only absence for a period of one day was pointed out and
therefore, the reliance placed by the disciplinary authority on his
dirty and untidy uniform could not be made the basis to pass an
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order of discharge against the appellant. It is further contended that
the procedure as prescribed in Rule 19.2 to 19.6 of the 1934 Rules
has not been followed and his removal before completion of three
years i.e the probation period is not appropriate.
10. It is further contended that under Rule 16.2 of the '1934
Rules' dismissal is to be awarded for grievous act of misconduct
and one day's absence cannot be treated as a grievous act of
misconduct.
11. While relying upon the judgment passed in
'Management of Express Newspapers (Pvt.) Ltd. Madurai vs
The Presiding Officer, Labour Court, Madurai and another'
1964 AIR (SC) 806, the learned counsel representing the appellant
contends that removal before a period of three years is bad in law.
While referring to Rule 16.2 of the 1934 Rules, he submits that
dismissal is to be followed for grievous act of misconduct and one
day's absence cannot be treated as grievous act of misconduct. In
the end he submits that there is no finding in the impugned order
establishing the fact that the appellant is unlikely to prove an
efficient officer and the punishment of discharge is very harsh and
disproportionate.
12. This Court has considered the submissions made by the
learned counsel representing the parties.
13. It is evident from the reading of order of the discharge
that it is not stigmatic and the disciplinary authority, after narrating
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the facts available on the file, has formed an opinion that the
appellant is not likely to become a good police officer. The
impugned order nowhere indicates that the appellant has been
discharged on account of misconduct. It is also evident that a report
sent by the Police Captain/Training Incharge PAP, Jalandhar Cantt
has also been kept in consideration. In fact, recently the Hon'ble
Supreme Court in State of Punjab and others vs. Jaswant Singh
(2023) 9 SCC 150 while setting aside the judgment passed by all
three courts held that there is no foundation of misconduct alleged
in the order and it is an order of simplicitor discharge of a
probationer Constable. The Court while relying upon Sher Singh's
case (supra) has held that Rule 12.21 provides for 3 years probation
period and it is permissible for the appointing authority to discharge
the probationer after forming an opinion that the probationary
Constable is unlikely to prove an efficient police officer. In these
circumstances, the impugned order passed by the disciplinary
authority is not stigmatic.
14. The second argument of the learned counsel also lacks
substance because the disciplinary authority while passing the order
made an observation and wrote as a passing reference that when the
probationary Constable appeared for personal hearing, he was not
dressed properly as his uniform was dirty and untidy. However, that
reference has not been made the basis of the order of discharge
passed by the disciplinary authority. In fact, the order of discharge
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is based on his absence on three different occasions, within a short
span of 9 months. In the show cause notice, the appellant was
informed of his absence on three different occasions and his
comments were sought for unauthorised absence.
15. The next submission of the learned counsel
representing the appellant also does not have substance because
Rule 19.2 of the 1934 Rules provides for the training of recruits.
Similarly, Rule 19.3 provides for the examination of the recruits
whereas Rule 19.5 provides for further training of the Constables.
Rule 19.2 to 19.6 are independent of Rule 12.21. Rule 12.21 is not
dependent upon Rule 19.2 to 19.6 of the Punjab Police Rules.
16. This Court has carefully studied the judgment passed in
Indian Express's case (supra). In the aforesaid case, the Chief Sub
Editor was discharged six days before his probation period ended,
on the ground that he has been elected as a President of Madurai
Branch of Madras Union of Journalist. Though the High Court
observed that discharge of an employee before a period of six
months was wrong, however, the Supreme Court did not express any
opinion. Hence, the aforesaid judgment with greatest respect as a
ratio decidendi, does not lay down that the probationers cannot be
discharged before completion of the probation period.
17. The next argument of the learned counsel representing
the appellant based on Rule 16.2 that talks of act of grievous act of
misconduct holds no firm ground as in this case, the appellant has
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been discharged under Rule 12.2 and the said rule applies to the
probationers.
18. The next argument of the learned counsel representing
the appellant is also insubstantial as in the impugned order the
disciplinary authority has specifically observed that the respondent
is not likely to become a good police officer. It is not necessary that
the exact expression used in the Rule must be reproduced.
Basically, if an order of discharge of a probationer is based on
subjective satisfaction of the appointing authority, the court in the
absence of malafide or perversity is not expected to interfere.
19. There is also no substance in the next argument of the
learned counsel representing the appellant that the period of
absence, as leave without pay, has been regularized in the impugned
order and therefore, the aforesaid misconduct stands condoned. This
fact has also been examined by the Supreme Court in detail in State
of Punjab and others vs. Charanjit Singh, 2003 (8) SCC 458
wherein it has been held that the order treating the period of absence
as leave without pay is only to regularize the record and it does not
result in condonation of misconduct.
20. The last submission of the learned senior counsel also
lacks substance as the disciplinary authority has passed no order of
punishment. It's a simplicitor order of discharge. It is evident that
within a period of 9 months, the appellant remained absent on three
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different occasions, without seeking permission from the competent
authority. Thus, this Court does not find it appropriate to interfere.
21. Hence, dismissed accordingly.
22. All the pending miscellaneous applications, if any, are
also disposed of.
19.01.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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