(O&M)Punjab State vs Jaswinder Singh
2024 Latest Caselaw 18727 P&H

Punjab-Haryana High Court

(O&M)Punjab State vs Jaswinder Singh on 22 October, 2024

Author: Sudeepti Sharma

Bench: Sudeepti Sharma

                                      Neutral Citation No:=2024:PHHC:140985




RSA-1874-2001
         2001 (O&M)
                                                          -1-


           In the High Court of Punjab and Haryana at Chandigarh

719                                     RSA-1874
                                             1874-2001 (O&M)
                                        Date of Decision: October 22, 2024

THE PUNJAB STATE AND ORS                                    .....APPELLANTS



                                     VERSUS




SHRI JASWINDER SINGH                                        ....RESPONDENT


CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present:    Mr. S.S. Hira, DAG, Punjab.

            Mr. M.L. Saini, Advocate for the respondent.
                 ****

SUDEEPTI SHARMA, SHARMA J (ORAL)

1. The State of Punjab has preferred the present appeal against the

judgment and decree dated 01.02.2001 passed by the learned Additional District

Judge, Jalandhar whereby the appeal filed by the respondent against dismissal of

civil suit dated 17.01.1997 passed by learned Civil Judge (Junior Div Division), ision),

Jalandhar, whereby suit for declaration to the effect that order dated 16.01.1996

passed by the Additional Inspector General of Police, PAP, Jalandhar Cantt.

whereby, revision petition filed by the respondent was rejected and further

challenged the order dated 06.02.1995 passed by the Commandant, 9th Battalian,

PAP, Amritsar,, whereby, he was dismissed from service and the period from

13.10.1994 to 15.12.1994 was treated as non-duty non duty period, was allowed.

2. Brief facts of the case are that the plaintiff filed a suit for declaration

that the order dated 16.1.1996 16.1. 6 passed by the Additi Additionall Inspector General of

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Police, PAP Jalandhar Cantt. whereby his revision revision- petition was rejected and in

which order dated Nil passed by the Deputy Inspector General of Police, Admn.

Admn

PAP, Jalandhar,, Cantt. rejecting his appeal and order dated 6.2.

6.2.1995 95 bearing memo

No.9505/CRC, 505/CRC, dated 6.9.1995 6.9. 95 passed by the Commandant, 9th th Battalion PAP,

Amritsar dismissing him from service and a d treating the period from 13.10.

13.10.1994 4 to

15.12.1994 4 as non-duty non and without pay period have merged is illegal, void,

unlawful, unconstitutional, nconstitutional, arbitrary, discriminatory and malafide, against the

provisions of law, service rules rules and rules of natural justice and, therefore,, the same

is not binding on him and he continued to serve the department as Constable before

2.6.1995 5 and is entitled to all rights privileges and other service benefits attached

to that post on the ground that he joined the Punjab Police Department as

Constable in the PAP Jalandhar Jalandh Cantt. on 7.6.

6.1988 88 and was attached with 82

Battalion PAP, Bahadurgarh, Patiala, hee was transferred to 99th Battalion PAP,

Amritsar in the year 1989.

19 From the very first day of his joining service, he had

been working orking very hard, honestly and to the enti entire re satisfaction of his superior

officers, who were satisfied with his work ork and conduct and also gave him good

reports from time to time. For law and order duty duty, the plaintiff was sent to Delhi elhi

with a PAP (Reserve Reserve).. In the Month of October, 11994, he was still posted at Delhi

for the same duty. His elder sister expired and the marriage of his younger sister

was fixed for 15.10.1994 15.10. 94 to be performed with the husband of his deceased sister,

whereupon he applied for leave but the same was declined. He, therefore, ore, left the

place of his posting to attend the said marriage. He alleged that thereafter he fell ill

and remained under treatment treatment in Gupta Nursing Home, Kurali. O On n having been

declared fit to resume duty, the plaintiff reported back on 15.12.1994 4 in the

Battalion Headquarter at Amritsar. He was treated as absent fr from om duty from

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13.10.1994 94 to 15.12.1994 15.12. 4 and ordered to be tried departmentally. Shri Ajit Singh,

Reserve Inspector of Police, 9th 9 Battalion, PAP, Amritsar, conducted the

departmental inquiry against against the plaintiff, in contravention of the provisions of law,

service rules and rules of natural justice. He retu returned a finding against the plaintiff

and held him guilty. The plaintiff further alleged that he was not even given an

opportunity of being heard heard and the Commandant, 9th th Battalion, PAP passed an

order dated 2.6.1995 2.6. 95 dismissing him from service and the period from 13.10.

13.10.19

to 15.12.1994 94 was ordered to be treated as non-duty non duty period and without pay pay.

3. Feeling aggrieved by the said order the plaintiff filed an appeal which

was dismissed by the Deputy Inspector General of Police, Admn. PAP, Jalandhar

Cantt. vide order dated nil conveyed to him by the Commandant, 9th th Battalion,

P.A.P., Amritsar vide his Memo Me No.9505/CRC, 505/CRC, dated 6.0 6.09.1995.

5. The plaintiff

filed a revision against the said order which was rejected by the Addl Addl. Director

General of Police, PAP, Jalandhar Cantt. vide his order dated 16.1.1996.

96. The

plaintiff claimed the order dated 16.1.1996 16.1. 6 in whi which order dated 26.2.1996 96 passed

by the Deputy Inspector General of Police, Admn. PAP, Jalandhar Cantt. and order

dated 2.6.1995 95 have merged as illegal and void on the grounds that he was not

granted leave despite repeated requests and there being compellin compellingg reasons of

marriage of his sister and thereafter his falling ill did not constitute any misconduct

warranting departmental action against him.

him He was not supplied with copies of

the documents relied upon by the department during the course of inquiry. The T

inquiry was not conducted in accordance with the provisions of Rule 16.24 of the

Punjab Police Rules, and he was not allowedd to cross cross-examine the witnesses.. The T

Enquiry Officer obtained his signatures on blank papers on the pretext that no

action would be taken against him.

him He was not allowed to lead defence evidence.

evidence

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The he Reserve Inspector was not competent to conduct the inquiry as he was not a

Gazetted Officer. He was not called by the Commandant for service of show cause

notice on him nor did he explain explain the charges proved against him him. The he absence

from m duty does not constitute gravest act of misconduct and as such the

punishment of dismissal could not have been inflicted upon him him. The he impugned

order has been passed in contravention of the provisions of Rule 16.2 of the Punjab

Police Rules.. No opportunity of personal hearing was afforded to the plaintiff

before passing the impugned order and punishment awarded to the plaintiff is not

in consonance with the allegations levelled against him and the puni punishment shment is

much, too, severe.

severe The he punishment of treating the absence period as non non-duty duty and

without pay period cannot be inflicted on any enrolled Police Officer as per the

rules. The he previous record of service of the plaintiff has been taken into

consideration tion while passing the impugned order without affording him any

opportunity of rebutting the same.

same The he favourable entries in the service record of

the plaintiff were not considered, considered while passing the impugned order order. The he case of

the plaintiff has been illegally illegally discriminated from the cases of other Police olice

Officials similarly circumstanced and the Deputy Inspector General of Police,

Admn. PAP and the Additional Director General of Police, olice, PAP, Jalandhar Cantt., Cantt.

did not assign any reasons for rejecting his appeal peal and revision. He also served a

notice under Section ection 80 C.P.C. on the defendants defendants, but to no effect.

4. Upon notice, defendants appeared and filed written statement statement, wherein

apart from taking preliminary objections of maintainability of suit, no cause of

action, jurisdiction to try the suit by the Civil Court were pleaded. Further that

plaintiff was afforded with all legal opportunities and the orders passed were legal

and valid and prayer for dismissal of the suit was made.

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5. From the pleading of the parties, the following issues were framed:-

"1.

1. Whether the plaintiff is entitled to declaration as prayed

for? OPP

2. Whether the suit is not maintainable? OPD

3. Whether the notice u/s 80 C.P.C.is legal? OPP

4. Whether the courts at Jalandhar has jurisdiction to try the

suit: OPD

5. Relief."

6. After hearing both the parties and perusing the whole record, the

learned Civil Judge (Senior Division), Jalandhar dismissed the suit of the

plaintiff/respondent.

7. The appeal filed by the respondent respondent/plaintiff before the First Appellate

Court was allowed.

allowed Hence, appellant-State filed the present appeal.

SUBMISSION OF COUNSEL FOR THE PARTIES

8. Learned State counsel for the appellant contends that the First

Appellate Court without taking into consideration the facts on record has wrongly

allowed the appeal, appeal filed by the respondent/plaintiff /plaintiff.

9. Per contra, learned counsel for the respondent respondent/plaintiff contends that

the First Appellate Court has rightly decided the appeal.

10. I have heard learned counsel for the parties and perused the whole

record of the case. Relevant portion of the judgment passed by the First Appellate

Court is reproduced as under:-

un

"12. Admittedly, ttedly, the impugned order Ext.P1 dated 2.6.95 5 was

passed against Jaswinder Singh, appellant/Plaintiff as he

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remained absent from duty w.e.f. 13.10.94 to 15.12.9 15.12.944 for 64

days. Rule 16.2. of the Punjab Police Rules read as under :-

"16.2 (1) Dismissal shall be awarded only for the gravest

acts of misconduct or as the cumulative effect of

continued misconduct proving incorrigibility and

complete unfitness for Police service. In making such an

award regard shall be had to the length of service ooff the

offender and his claim to pension.

pension."

From the bare reading of the provisions of rule 16.2 of

Punjab Police olice Rules it is cl clear ear that the dismissal shall be

awarded only for the gravest act of misconduct. The Division vision

Bench of our own High Court has observed in State of Punjab

Versus. Parkash Chand, Constable 1002 (1) Services Law

Reporter Page 174, as under ::-

"This Court has in a number of cases gone into the

matter in order to find as to what would really cons constitute titute

a gravest act of misconduct. A number of cases have

been cited before us but we have chosen to pick up only

one which deals with the question of absence without

leave. In Darshan Singh's case (Supra) the lea learned rned

Single ingle Judge has held that absence wi without leave for

almost 13 months would not in the circumstances of that

case amount to the gravest act of misconduct.

misconduct."

Hon'ble Mr. Justice S.C.Malte, Judge or Our own High Court

has also observed in Jaswant Singh Vs State of Punjab 1997

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(1) Recent services Judgements 768 that mere absence from

duty would not be necessarily a gravest act of misconduct

unless it is coupled with some other facts that would show that

the delinquent was guilty of continued misconduct showing

incorrigibility and complete unfitness for Police ser service.

vice. A

similar view was also taken by Hon'ble Mr. Justice T.H.B.

Chalapathi, in Ex Constable Balwant Singh Versus. The state

of Haryana and others 1999( 1999(1) Recent Services Judgment

680. As already mentioned above there was only a charge

against the delinquent ent that he remained absent from duty from

13.10.94 to 15.12.94 4 though he had submitted the explanation

and medical certificate which was not considered as correct by

the Punishing authority and there was no other charge against

the appellant/plaintiff. Inn the case of State of Punjab versus.

jutani Parkash Chand (Supra) the Division Bench of our own

High Court has observed that in Darshan Singh's ingh's case the

learned Single Judge has held that absence without leave for

almost 13 months onths would not in the circumstances of that case

amount to the gravest act of misconduct. Thus in the light of the

ruling referred to above,, mere absence from du duty ty would not be

necessarily a gravestt act of misconduct and thus the order

passed assed by the punishing authority was set aside. In the case in

hand, there is no charge levelled against the appellant/ appellant/plaintiff laintiff

except that he remained absent from dduty and the same ame cannot can

be considered to be a gravest act of misconduct.

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13. I find force in the arg arguments advanced by the learn rned

Govt. Pleader that the previous conduct of the

appellant/plaintiff was not considered to pa pass the impugned

order though a reference has been made in the impugned order

Ext.P1.. The learned counsel for the appellant/pla appellant/plaintiff intiff has cited

the ruling in Mahipat, Ex.Co .Constable Vs.. State of Haryana and

others 1994 (4) Services Law Reported 311 (supra ). In the (supra).

presencee of the ruling of Division Bench of our own High Court

in Constable Jagmal Singh Vers Versus, State of Haryana and

others, 1998 (1) Recent service Judgments 151, the impugned

order is not the basis of the pre previous vious conduct of the

appellant/plaintiff.

laintiff. It has also been observed in Constable

s. State of Haryana (supra)) that record was Jagmal Singh vs.

checked and as a member of disciplined force, he was expected

to be moree responsible and he gave no indication thereof. Their

Lordships have observed that in such a situation it cannot be

said that the view taken by the respondent as unfair or

arbitrary. In the case in hand also only the previous conduct of

the appellant/plaintiff ntiff was highlighted in the impugned order

but the previous conduct of the appellant/plaintiff is not the

basis of the order and thus no opportunity was required to be

given to the plaintiff to explain his previous conduct.

14. In view of what has been discussed above, I must hold

that the punishing authority has passed the order showing the

period of absence from duty as leave without pay which

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amounts to the regularisation of the period of absence from

duty and thus the charge of absence from duty did not survive

and the punishing authority has not passed the order in view of

the provisions of Rule 16.2 of the Punjab unjab Police Rules, because

mere absence from duty would not be necessarily a gravest act

of misconduct and thus the impugned order passed by the th

punishing authority cannot ot sustain and the same is set aside.

Accordingly the appeal is accepted and the judgement and

decree passed by the Court of Mrs. Preeti Sahni,, Civil Judge

(Junior Division) ivision) Jalandhar, dated 17.1.1 17.1.1997 is set aside and

the suit of the plaintiff for declaration to the effect that the

order dated 16.1.96 6 passed by the Additional Director General

of Police, P.A.P., Jalandhar Cantt. whereby the revision-

revision

petition of the plaintiff was rejected and in which order dated

nil passed by the Deputy Inspector nspector General of Police, Admn.

Admn

PAP Jalandhar Cantt. rejecting his appeal which was conveyed

by thee Commandant, vide his Memo No.9 No.9505/CRC, /CRC, dated

6.9.95 and order dated 2.6.95 passed by the Commandant, 9th

Battalion, PAP Amritsar whereby he was dis dismissed missed from

service and the period from 13.10.94 to 15.12.9 15.12.94 4 has been

treated as non-duty duty and without pay period, have merged is

illegal and void, unlawful and unconstitutional, arbitrary,

capricious, nul1, wanton, discriminatory and malafide, against

the provisions of law, service rules and rules of natural justice,

unjust and improper, inoperative and ineffective and is,

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therefore, not binding on him and that the plaintiff continues to

serve the department as Constable as before 2.6.

2.6.95 5 and is

entitled to all rights, privileges and other service benefits

attached to that post, is decreed with costs. Decree sheet be

prepared accordingly and the file be consigned to the Record

Room. Lower Court record be sent back."

CONCLUSION:

CONCLUSION:-

11. A perusal of the record shows that the plaintiff/respondent /respondent remained

absent from duty from 13.10.1994 13.10. to 15.12.

15.12.1994. There is absence of

plaintiff/respondent of two months. Moreover, the defendants/appellant in written

statement have specifically stated that the act and conduct of the plaintiff was not

satisfactory and on previous occasions also, also he remained absent from duty without

leave and that the plaintiff was given the followin following g punishments previously also

i.e.:-

i) Censure for remaining willful absent from duty for 23 days, LWP vide

O.B. No 161/91,

ii) Warning for remaining willful absent from duty for 26 days, LWP vide

O.B. B. No. 432/90 and

iii) Censure for remaining willful absent from duty for 8 days, LWP/NDP /NDP

vide O.B. No. 62/95.

12. So taking into consideration all these facts facts, it is found that the

previous conduct of the plaintiff/respondent plaintiff was also not upto the mark. Moreover, over,

while going through the whole enquiry file, file it is found that the plaintiff plaintiff/respondent /respondent

was given every opportunity of being heard during the enquiry proceedings and the

enquiry proceedings were conducted as per law and procedure prescribed therein.

therein

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So the order passed upon these enquiry proceedings is valid and binding upon the

plaintiff/respondent /respondent.

13. The findings of the learned First Appellate Court that mere absence

from duty would not be necessarily a grave act of misconduct, is not acceptable to

this Court.

14. The Hon'ble Supreme Court in State of U.P. versus Ashok Kumar

Singh,, 1996 (1) SCC 302 has held as under:-

"8. We are clearly of the opinion that the High Court has

exceeded its jurisdiction in modifying the punishment while

concurring with the findings of the Tribunal on facts. The High

Court failed to bear in mind that the first respondent was a

policee constable and was serving in a disciplined force

demanding strict adherence to the rules and procedures more

than any other department. Having notice noticed the fact that the first

respondent has absented himself from duty without leave on

several occasions, wee are unable to appreciate the High

Court's observation that 'his absence from duty would not

amount to such a grave charge'. Even otherwise on the facts of

this case, there was no justification for the High Court to

interfere with the punishment holding tthat hat 'the punishment does

not commensurate with the gravity of the charge' especially

when the High Court concurred with the findings of the

Tribunal on facts. No case for interference with the punishment

is made out."

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15. As held by the Hon'ble Supreme Court that Police is a disciplined

force, therefore, I do not find any infirmity in the order dated 02.06.1995 .1995 passed by

the Commandant, 9th Battalian, PAP, Amritsar, whereby respondent was dismissed

from service.

16. In view view of the above, the present appeal is allowed allowed.. The judgment

and decree dated 01.02.2001 passed by the First Appellate Court is set aside,

whereas the judgment and decree dated 17.01.1997 passed by the learned Civil

Judge (Junior Division) is upheld.

17. Decree sheet be drawn accordingly.

Decree-sheet

18. Pending application(s), application , if any, also stand disposed of.

                                                  (SUDEEPTI
                                                   SUDEEPTI SHARMA
                                                            SHARMA)
October 22,, 2024                                     JUDGE
A.Kaundal

             Whether speaking/ reasoned          : Yes/No
             Whether Reportable                  : Yes/No




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