Punjab-Haryana High Court
State Of Punjab vs Gian Singh on 21 March, 2024
Neutral Citation No:=2024:PHHC:041134
2024:PHHC:041134
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA-2002-1993
Reserved on : 13.03.2024
Pronounced on : 21.03.2024
The State of Punjab and another .....Appellants
Versus
Gian Singh .....Respondent
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present : Mr. Rajesh Sehgal, Addl. A.G., Punjab for the appellant.
Ms. Ramneeq Kaur, Advocate for the respondent.
NAMIT KUMAR, J.
1. The instant appeal has been preferred by the State of
Punjab impugning the judgment and decree dated 03.05.1993, whereby
learned Additional District Judge, Gurdaspur, while dismissing the
appeal filed by the appellants/State upheld the judgment and decree
dated 29.04.1992 passed by learned Sub Judge II Class, Gurdaspur,
whereby the suit filed by the respondent/plaintiff was decreed in his
favour. Parties to the lis, hereinafter, shall be referred to by their original
position in the suit.
2. The brief facts of the case are that the plaintiff-Gian Singh
filed a suit for declaration to the effect that the impugned order dated
02.11.1987, passed by Senior Superintendent of Police, Gurdaspur
(defendant No.2), whereby two years approved service of the plaintiff
was forfeited along with forfeiture of pay and the impugned order
passed by the Appellate Authority, whereby the appeal filed by the
1 of 8
Neutral Citation No:=2024:PHHC:041134
plaintiff against order dated 02.11.1987 was rejected by the Deputy
Inspector General of Police, Jalandhar Range, Jalandhar Cantt. It was
pleaded in the suit that the plaintiff was appointed in Punjab Police on
permanent basis and while he was serving as Sub-Inspector in District
Gurdaspur, he was served with charge-sheet containing certain
allegations to the effect that he was involved in some criminal case and
gross negligence, carelessness and dereliction of duty. He denied the
said allegations and stated that he had reported on duty on 21.08.1987
instead of 16.08.1987. Thereafter, an inquiry was conducted against him
which culminated in passing of the order dated 02.11.1987, whereby his
two years approved service was forfeited along with forfeiture of pay
during the suspension period. He preferred an appeal against the
impugned order dated 02.11.1987, which was also rejected by the
Appellate Authority. He challenged impugned order as well as appellate
order as illegal, unlawful and unconstitutional against the principles of
natural justice and null and void on the grounds that the charge sheet
and show cause notice issued to him were illegal and without
jurisdiction, his reply was not considered, copies of documents were not
supplied to him, he was not permitted to have assistance of a co-worker
and was not allowed to cross examine the departmental witnesses,
judicial mind to the facts of case was not applied, impugned orders are
non-speaking, behaviour of enquiry officer was biased towards him,
impugned orders are ultra vires the authority of defendant no.2 as well
as appellate authority impugned orders were passed in breach of P.P.R.,
version of defence witnesses was not considered by enquiry officer,
departmental evidence produced by him was not taken into
2 of 8
Neutral Citation No:=2024:PHHC:041134
consideration and impugned orders are nonest and ex facie defective.
After service of notice under section 80 CPC upon defendants, the
plaintiff preferred this suit.
3. Notice of suit was issued to the defendants and they came
forward to contest the suit by filing joint written statement, wherein they
have taken preliminary objections of want of necessary parties and want
of cause of action. On merits, defendants admitted the employment of
plaintiff, infliction of punishment upon him vide impugned order as
well as appellate order. Defendants also admitted the receipt of notice
under section 80 CPC but disputed its legality and validity. Rest of
allegations of plaint were denied in toto.
4. Plaintiff filed replication to the written statement of
defendants wherein he denied the case of defendants and reiterated his
case putforth in plaint. From the pleadings of the parties, on 11.08.1989
the following issues were framed :-
1. Whether the order passed by defendant no.2 on
02.11.1987 against the plaintiff is illegal void and liable to
be set aside? OPP.
2. Whether appellate order of D.I.G. Police, Jalandhar
is illegal void and liable to be set aside ? OPP.
3. Whether the suit is bad for non-joinder of necessary
parties ?OPD.
4. Whether there arose no cause of action for the
plaintiff to file the present suit ? OPD.
5. Whether the suit is bad for non service of valid
notice under Section 80 CPC ? OPD.
6. Relief.
5. The said suit was decreed by the Court of learned Sub
Judge II Class, Gurdaspur vide judgment and decree dated 19.04.1992
3 of 8
Neutral Citation No:=2024:PHHC:041134
by recording finding on issue No.1 and 2 which is as under :-
7. Both these issues are interlinked and can be
conveniently decided together hence these are taken
together.
8. Onus to prove both these issues was upon plaintiff
Ld. counsel for plaintiff raised simple argument by taking
me through enquiry file. Ex. Pl that period of absence of
delinquent was condoned. Allegation of charge against the
accused are available at page 9 in enquiry file Ex. P.1
which shows that plaintiff was charge sheeted for
delinquency of absence from duty from 16.8.87 to 21.8.87
Ld. counsel for plaintiff has also taken me through
impugned order available at pages 197 to 199 in the
enquiry file. The last line of which is reproduced as
under :-
"The whole of his absence is treated as leave
without pay".
Ld. counsel for plaintiff argued that by treating
absence of plaintiff as leave without pay the authority has
condoned his absence. Ld counsel for plaintiff backed up
his contention by placing reliance upon unreported
judgment of our Hon'ble High Court passed in RSA No.872
of 1986 titled as State of Punjab and Ors. Vs. Sital Singh
on 15.1.1988 by Hon'ble Mr. Justice M.S. Liberhan of our
Hon' ble High Court where Hon' ble Judge observed as
under :-
"The consensus of the decision in the precedents
relied upon by the respondent is that once the
period of absence is treated as leave of any kind
whatsoever the fact that the delinquent remained
absent no more survives. The charge of absence
4 of 8
Neutral Citation No:=2024:PHHC:041134
from duty cannot be sustained after the person has
been treated on leave of whatsoever kind it may be
as admittedly in the case in hand the absence was
treated on leave without pay and it amounted to as
if there was no break in service. The counsel for the
appellants only contends that the above precedents
do not lay down the correct law as no reason has
been pointed out for the same. In view of my above
observation I find force in the contention raised by
the counsel for the respondent and affirm the
finding of the lower appellate court i.e. in view of
the observation made by the punishing authority in
the order of dismissal that the period of absence
shall be counted as leave without pay amounts to
regularizing the absence and as such the charge of
absence no more survives.
There against ld. Govt. pleader has nothing convincing.
The unreported judgment cited by ld. counsel for plaintiff is
applicable to the fact and circumstances of suit. I am of the
opinion fortified with the ruling of our Hon' ble High Court
that punishing authority has condoned the absence of
delinquent by treating his absence as leave without pay.
Therefore impugned order dated 2.11.87 was not
sustainable.
9. When impugned original order dated 2.11.87 was
not sustainable the subsequent appellate order whereby
impugned order was confirmed was also not sustainable.
Impugned appellate order is available at pages 205 to 208
in the enquiry file. Perusal of which shows that appellate
authority has not afforded opportunity for hearing to
delinquent thus impugned appellate order was also had on
this score.
5 of 8
Neutral Citation No:=2024:PHHC:041134
10. In view of my above observation both these issues
are decided in favour of plaintiff."
6. Against the abovesaid judgment and decree, the State has
filed an appeal which was dismissed by the learned Additional District
Judge, Gurdaspur, vide judgment and decree dated 03.05.1993 by
observing as under :-
"7. After careful consideration of the matter I find that
the contention of ld. counsel for the respondent is well
founded. In chapter 16. of Punjab Police Rules pertaining
to punishment at column 3 of the table enumerating the
punishment it is mentioned as under :-
"Stoppage of increment of forfeiture of approved
service for increment".
Thus it is clear that forfeiture of approved service is for the
purpose of inflicting punishment of stoppage of increment
but it does not show that forfeiture of approved
service can be done by way of inflicting punishment. In
these premises the impugned order is found to be illegal.
The findings of the ld Sub Judge on issues 1 and 2 are
sustained.
8. Finding of the ld Sub Judge on remaining issues
have not been challenged.
9. In view of the what is discussed above, I find no
force in the appeal. The same is hereby dismissed. The
impugned judgment and decree are upheld and the appeal
is dismissed."
7. Learned State counsel for the appellants submits that the
findings recorded by the Courts below are totally erroneous and against
the rules and based on conjectures and surmises. He submits that there
is a specific Rule 16.5 of the Punjab Police Rules, 1934, which
6 of 8
Neutral Citation No:=2024:PHHC:041134
empowers the forfeiture of approved service. The said rule reads as
under :-
"16.5 Stoppage of approved service for increment
increments or forfeiture
(1) The increment of a police officer on a time-scale
may be withheld as a punishment. The order must state
definitely the period for which the increment is withheld,
and whether the postponement shall have the effect of
postponing future increments. The detailed orders
regarding the grant and stoppage of increments are
contained in rule 13.2.
(2) Approved service for increment may be forfeited,
either temporarily or permanently, and such forfeiture may
entail either the deferment of an increment or increments
or a reduction in pay. The order must state whether the
forfeiture of approved service is to be permanent; or, if not,
the period for which it has been forfeited.
(3) Reinstatement on the expiry of a period fixed under
sub-rule (1) or (2) above shall be conditional upon good
conduct in the interval, but, if it is desired under this rule
not to reinstate an officer, a separate order shall be
recorded, after the officer concerned has been given
opportunity to show cause why his reinstatement should
not be deferred, and the period for which such order shall
have effect, shall be stated. Rules regarding the method of
recording punishments under this rule in seniority rolls are
contained in Chapter X"
8. On the other hand, learned counsel for the respondent has
vehemently opposed the present appeal on the ground that there is no
illegality or infirmity in the judgments passed by the Courts below and
prays for dismissal of the present appeal.
7 of 8
Neutral Citation No:=2024:PHHC:041134
9. I have heard learned counsel for the parties and gone
through the relevant record with their able assistance.
10. Rule 16.5(2) of the Punjab Police Rules, 1934 provides that
approved service for increment may be forfeited, either temporarily or
permanently and such forfeiture may entail either the deferment of an
increment or increments or a reduction in pay and the order must state
whether the forfeiture of approved service is to be permanent or, if not,
the period for which it has been forfeited.
11. The respondent/plaintiff was inflicted the punishment of
forfeiture of approved service for two years which is in consonance with
Rule 16.5 of the Punjab Police Rules, 1934. Since the findings recorded
by the Courts below to this effect are contrary to Rule 16.5, therefore,
the same are liable to be set aside. Vide order dated 12.05.1994, the
appeal was admitted and operation of impugned judgment was stayed.
12. In view of the above, the present appeal is allowed and the
judgments and decrees dated 29.04.1992, passed by learned Sub Judge
II Class, Gurdaspur and dated 03.05.1993 passed by learned Additional
District Judge, Gurdaspur, are hereby set aside and the suit of the
respondent/plaintiff stands dismissed, with no order as to costs.
(NAMIT KUMAR)
21.03.2024 JUDGE
Kothiyal
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
8 of 8
