Punjab-Haryana High Court
State Of Punjab Etc vs Manjinder Singh on 27 January, 2025
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2025:PHHC:011944
RSA-1-1995 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
***
RSA-1-1995
Date of decision : 27.01.2025
The State of Punjab and others ... Appellants
Versus
Manjinder Singh ... Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr.S.S. Hira, DAG, Punjab,
for the appellants.
Mr. Rahul Sharma-I, Advocate
for the respondent.
VIKAS BAHL, J.(ORAL)
1. The present appeal has been filed under Section 41 of the
Punjab Courts Act, 1918 by the defendants.
INDEX
Paragraph Page
1 Challenge in the present Regular Second Appeal 2 1 and 2
2 Brief facts of the case 3 to 8 2 to 4
3 Arguments on behalf of the appellants 9 4 and 5
4 Arguments on behalf of the respondent 10 5 and 6
5 Analysis and finding 11 to 29 6 to 20
CHALLENGE IN THE PRESENT REGULAR SECOND APPEAL
2. Challenge in the present Regular Second Appeal is to the
judgment dated 15.02.1994 passed by the trial Court vide which the suit
filed by the plaintiff-respondent (hereinafter referred to as "the plaintiff")
for declaration has been decreed and the order of Senior Superintendent of
Police, Amritsar, dated 14.05.1991 discharging the plaintiff from the police
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force has been held to be illegal, null and void and it has further been
observed that the plaintiff would continue to be a Constable in the police
force. Challenge is also to the judgment dated 13.08.1994 vide which the Ist
Appellate Court has dismissed the appeal filed by the present appellant-
defendants (hereinafter referred to as "the defendants").
BRIEF FACTS OF THE CASE
3. Brief facts of the case are that the plaintiff (respondent) had
filed a suit for declaration to the effect that the order dated 14.05.1991
passed by the Senior Superintendent of Police, Amritsar, discharging him
from the police force was illegal, null and void. The said suit was filed on
the plea that he was enrolled in the police department as a Constable in the
month of November, 1989 and was allocated constabulary no.1719 and was
deputed for duty from P.R.T.C. Jehan Khela to Police Station, Civil Lines,
Amritsar and while being posted in Amritsar, he suffered from mental
depression and was confined to bed twice in a short span of two months
from 02.12.1990 to 14.01.1991 and from 20.01.1991 to 11.02.1991 and
remained under treatment and after he had recovered, he resumed duty and
it was further pleaded that without testifying the factum of ailment of the
plaintiff, the plaintiff was discharged from service vide order dated
14.05.1991 and that no enquiry much less any charge sheet was issued to
the plaintiff. It was pleaded that the plaintiff filed a representation before
the Deputy Inspector General of Police, Border Range, Amritsar but the
same was declined by the Deputy Inspector General of Police, Border
Range, Amritsar vide order dated 18.07.1991 and thereafter a notice under
Section 80 CPC was issued to the defendants and the said suit was filed.
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4. In the written statement filed on behalf of the defendants, it was
stated that the suit was not maintainable and that the plaintiff had joined the
police department as a temporary Constable w.e.f. 11.11.1989 in Amritsar
District and had absented from duty from 02.12.1990 to 19.01.1991 i.e., 47
days 19 hours and then from 19.01.1991 to 12.02.1991 i.e., 23 days 22
hours and 30 minutes and thus, his total absence period was 72 days
(approximately) which was treated as leave without pay. It was averred that
a show cause notice was given to the plaintiff to file a reply to which he had
filed a reply and after considering all the facts and circumstances, the order
of discharge was passed under Rule 12.21 of the Punjab Police Rules, 1934
and the said order was in accordance with law and had been passed within a
period of 3 years from the date of his enrollment.
5. In the replication, the pleas taken in the written statement were
denied and the averments made in the plaint were reiterated.
6. The trial Court framed the following issues:-
"1. Whether the suit is not maintainable as alleged?OPD
2. Whether the plaintiff has got no cause of action to file
the present suit ?OPD
3. Whether the notice U/S 80 CPC served upon the
defendants before filing the suit is invalid?OPD
4. Whether the order dated 14.5.1991 whereby the
plaintiff was dismissed from service is illegal, null and void
and is not binding on the rights of the plaintiff? OPP
5. Relief."
7. The important issue on which the fate of the plaintiff hinged
was, issue no.4. Under the said issue, the trial Court, after relying upon the
judgment of the Hon'ble Supreme Court of India in the case of "Rajinder
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Kaur vs. State of Punjab and another" reported as 1986(4) SCC 141 had
observed that the order of discharge had been passed without granting any
opportunity of hearing to the plaintiff to show cause against his absence and
no enquiry had been held and thus was illegal and not binding on the
plaintiff and on the basis of the finding on the said issue, the suit of the
plaintiff was decreed. Issues no.1, 2 and 3 were also decided against the
defendants. The appeal filed by the appellants-defendants was also
dismissed.
8. It would be relevant to note that vide order dated 03.01.1995
passed by a Coordinate Bench of this Court, notice was issued in the present
appeal as well as regarding stay and in the meantime, the execution of the
judgment and decree of the lower Appellate Court was stayed. Thereafter,
on 17.08.1995, the said interim order was ordered to be continued and the
application for vacation of the stay order was also dismissed on 30.05.2003.
The said interim order thus has been in operation since 03.01.1995.
ARGUMENTS ON BEHALF OF THE APPELLANTS
9. Learned counsel for the appellants has submitted that the
judgments of the trial Court as well as of the Ist Appellate Court deserve to
be set aside, inasmuch as, the order of discharge had been passed in
accordance with Rule 12.21 of the Punjab Police Rules, 1934 and the order
cannot even remotely be stated to be stigmatic. It is further submitted that in
the order, it had been recorded that the respondent-plaintiff was not going to
prove to be an efficient police officer and the said observations made in the
impugned order are in accordance with the provisions of Rule 12.21 of the
Punjab Police Rules, 1934. In support of his arguments, learned counsel for
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the appellants has relied upon the judgment of the Hon'ble Supreme Court
in the case titled as "State of Punjab and others Vs. Sukhwinder Singh"
reported as 2005(5) SCC 569. It is further submitted that in the said case, a
similar order was passed against the respondent therein discharging his
services, which was upheld by the Hon'ble Supreme Court.
ARGUMENTS ON BEHALF OF THE RESPONDENT
10. Learned counsel appearing for the respondent, on the other
hand, has stated that the judgments passed by the trial Court and the Ist
Appellate Court are in accordance with law and deserve to be upheld. It is
submitted that the foundation for passing of the impugned order is an
alleged misconduct and in case the veil is lifted and the averments made in
the written statement are considered, then, it would be proved that the
impugned order had its foundation to an alleged misconduct. In the said
regard, learned counsel for the respondent has referred to paragraph 3(b) of
the written statement filed by the appellants-State. In support of the said
argument, learned counsel for the respondent has relied upon a judgment of
the Hon'ble Supreme Court of India in the case titled as "State of Punjab
and others Vs. Balbir Singh", reported as (2004) 11 SCC 743, to contend
that in order to determine whether the misconduct is motive or foundation
of the order of termination, the test to be applied is to ask the question as to
what was the basis of the order. It is further submitted that in case the basis
of the order is an alleged misconduct, then, in that situation, it is incumbent
upon the authorities to hold a regular inquiry under Rule 16.24 of the
Punjab Police Rules, 1934. It is prayed that the said principle has been
reiterated in the judgment passed by the Hon'ble Supreme Court in the case
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titled as "State of Punjab and others Vs. Jaswant Singh", reported as 2023
(9) SCC 150.
ANALYSIS AND FINDING
11. This Court has heard the learned counsel for the parties and has
perused the paper book and is of the opinion that the judgment and decree
of the trial Court as well as of the Ist Appellate Court deserve to be set aside
and the present appeal being meritorious, deserves to be allowed.
12. The substantial question of law which arises for consideration
in the present case is:-
"Whether the order dated 14.05.1991 vide which the
plaintiff, who was on probation, had been discharged is in
accordance with the provisions of Rule 12.21 of the Punjab
Police Rules, 1934 or not and as to whether the said order is
an order of discharge simpliciter or not?".
13. The order dated 14.05.1991 passed by the Senior
Superintendent of Police, Amritsar, vide which the plaintiff had been
discharged, as reproduced in paragraph 10 of the judgment of the trial Court
is reproduced hereinbelow:-
"Constable Manjinder Singh No.1719/Amritsar son of
Shri Bhajan Singh r/o Fatehabad P.S. Verowal Police District
Tarn Taran is being discharged from service from 10.5.1991
under Punjab Police Rules 12.21 as he is not going to prove
efficient police official. The period of absence from duty from
2.12.1990 to 12.2.1991 i.e. 72 days is treated as leave without
pay."
14. Rule 12.21 of the Punjab Police Rules, 1934, under which the
said order has been passed, is reproduced hereinbelow:-
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"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."
15. The Three Judges Bench of the Hon'ble Supreme Court of India
in the case of "State of Punjab and others vs. Sukhwinder Singh" reported
as 2005(5) SCC 569 while considering a similar case in which a similar
order of discharge had been passed under Rule 12.21 of the Punjab Police
Rules, 1934, had observed that the impugned order therein was in
accordance with Rule 12.21 of the Punjab Police Rules, 1934 and the order
of discharge was innocuous and could not be said to be punitive in nature
and thus, set aside the judgment passed by the High Court as well as by the
trial Court and the Ist Appellate Court and allowed the appeal filed by the
State of Punjab. It had further been observed that the High Court was
clearly in error in holding that the respondent's absence from duty was the
foundation of the order, on account of which an enquiry was required to be
conducted under Rule 16.24 (ix) of the Rules. Importantly, the judgment in
the case of Rajinder Kaur (supra), which was relied upon by the trial Court
to decree the suit of the present plaintiff was held to be bad law and it was
observed by the Three Judges Bench of the Hon'ble Supreme Court that
they were unable to agree with the view taken in the said case. It was also
observed that it was the consistent view of the Hon'ble Supreme Court that
even in case some kind of preliminary inquiry or fact-finding inquiry was
required to be held, then also the order of discharge of probationer could not
be treated to be an order of punishment, as the appointing authority has to
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necessarily ascertain all the relevant facts before taking a decision as to
whether the probationer should be retained in service or not.
16. It was also observed by the Hon'ble Supreme Court in the
abovesaid case that the High Court had built an edifice on the basis of a
statement made in the written statement to the effect that the respondent
therein was a habitual absentee during his short period of service and had on
the said basis concluded that it was his absence from duty that weighed in
the mind of Senior Superintendent of Police to pass the order of discharge
which was viewed to be punitive in nature by the High Court calling for a
regular inquiry under Rule 16.24 of the Rules. After noticing the
observations of the High Court, the Hon'ble Supreme Court in the abovesaid
case had observed that the High Court had gone completely wrong in
drawing an inference that the order of discharge dated 16.03.1990 was
based upon misconduct and was therefore punitive in nature. The present
case is similar to the case in the abovesaid judgment. The relevant part of
the said judgment is reproduced hereinbelow:-
".....The decision to discharge a probationer during the
period of probation or the order to terminate the service of a
temporary employee is taken by the appointing authority or
administrative heads of various departments, who are not
judicially trained people. The superior authorities of the
departments have to take work from an employee and they are
the best people to judge whether an employee should be
continued in service and made a permanent employee or not
having regard to his performance, conduct and overall
suitability for the job. As mentioned earlier a probationer is
on test and a temporary employee has no right to the post. If
mere holding of an inquiry to ascertain the relevant facts for
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arriving at a decision on objective considerations whether to
continue the employee in service or to make him permanent
is treated as an inquiry "for the purpose of imposing
punishment" and an order of discharge or termination of
service as a result thereof "punitive in character", the
fundamental difference between a probationer or a
temporary employee and a permanent employee would be
completely obliterated, which would be wholly wrong.
20. In the present case neither any formal departmental inquiry
nor any preliminary fact-finding inquiry had been held and a
simple order of discharge had been passed. The High Court
has built an edifice on the basis of a statement made in the
written statement that the respondent was a habitual absentee
during his short period of service and has concluded
therefrom that it was his absence from duty that weighed in
the mind of Senior Superintendent of Police as absence from
duty is a misconduct. The High Court has further gone on to
hold that there is direct nexus between the order of discharge
of the respondent from service and his absence from duty
and, therefore, the order discharging him from service will be
viewed as punitive in nature calling for a regular inquiry
under Rule 16.24 of the Rules. We are of the opinion that the
High Court has gone completely wrong in drawing the
inference that the order of discharge dated 16.3.1990 was, in
fact, based upon misconduct and was, therefore, punitive in
nature, which should have been preceded by a regular
departmental inquiry. There cannot be any doubt that the
respondent was on probation having been appointed about
eight months back. As observed in Ajit Singh v. State of Punjab
the period of probation gives time and opportunity to the
employer to watch the work, ability, efficiency, sincerity and
competence of the servant and if he is found not suitable for
the post, the master reserves a right to dispense with his
service without anything more during or at the end of the
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prescribed period, which is styled as period of probation. The
mere holding of preliminary inquiry where explanation is
called from an employee would not make an otherwise
innocuous order of discharge or termination of service
punitive in nature. Therefore, the High Court was clearly in
error in holding that the respondent's absence from duty was
the foundation of the order, which necessitated an inquiry as
envisaged under Rule 16.24(ix) of the Rules.
21. For the reasons discussed above, we are of the opinion that
the view taken by the High Court and also by the lower courts
is wholly erroneous in law and must be set aside. The appeal is
accordingly allowed and the judgment and decree passed by
the High Court and also by the learned Sub-Judge and
learned Additional District Judge are set aside. The suit filed
by the plaintiff-respondent is dismissed."
17. In the above said judgment, even the judgment of the Hon'ble
Supreme Court in the case of State of Punjab and others vs. Balbir Singh
(supra), which has been relied upon by the learned counsel for the
respondent, was considered and after considering the same, the appeal of
the State of Punjab was allowed. The facts in the case of Sukhwinder Singh
(supra), as has been stated hereinabove, are similar to the facts of the
present case. In the said case, the employee Sukhwinder Singh had joined
on 04.08.1989 as Police Constable and he had absented himself from his
duty w.e.f. 22.02.1990 and thereafter the Senior Superintendent of Police
had passed the order dated 16.03.1990 discharging him from service. The
order of discharge in the said case, which is similar to the order passed in
the present case is reproduced hereinbelow:-
"Constable Sukhwinder Singh No. 644/ASR of this District is
discharged from service w.e.f. 16-3-1990 under the Punjab
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Police Rules 12.21 as he is not likely to become an efficient
police officer."
18. The Hon'ble Supreme Court in the said judgment had also
referred to the Full Bench judgment of the Punjab and Haryana High Court
in the case of Sher Singh vs. State of Haryana reported as (1994) 1 Punj
LR 456 in which scope and content of Rules 12.21, 19.3 and 19.5 had been
examined and it had been observed that an employee appointed on
probation has no right to the post and his services are terminable at any time
during the period of three years and he can secure his position in the service
only in case he convinces the Superintendent of Police that he is likely to
prove to be an efficient police officer and that in case the Superintendent of
Police finds that a particular constable is not active, disciplined, punctual,
courteous etc., then he can reasonably form an opinion that he is not likely
to prove to be an efficient police officer and thus can invoke his power
under Rule 12.21 and can discharge the constable from the force. After
recording the observation of the Full Bench in the abovesaid case, the
Hon'ble Supreme Court had observed that they were in agreement with the
view taken by the Full Bench of this Court.
19. The judgment of the Hon'ble Supreme Court of India in the
case of State of Punjab and others vs. Sukhwinder Singh (supra) has
further been referred to in the latest judgment of the Hon'ble Supreme Court
of India titled as "State of Punjab and others vs. Jaswant Singh" reported
as (2023) 9 Supreme Court Cases 150. Even in the said case of Jaswant
Singh (supra), the order of discharge was similar to the order of discharge
as passed in the present case. The Hon'ble Supreme Court after considering
the entire law and the facts of the case, observed that all the three Courts
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i.e., trial Court, Ist Appellate Court as well as the High Court had
misconstrued Rule 12.21 of PPR and had decreed the suit filed by the
plaintiff therein, although by looking to the contents of the order of
discharge, there was no foundation of misconduct alleged in the order and
the said order was an order simpliciter of discharge of a probationer
constable. It was observed that the discharge order had been passed on
account of prolonged absence from training which showed to the authorities
that the Constable had no sense of responsibility and thus, could not prove
to be a good and efficient police officer. The order of discharge in the said
case, which was reproduced in paragraph 5 of the said judgment, as well as
the relevant portion of the abovesaid judgment are reproduced
hereinbelow:-
"5. In furtherance to the said recommendation, the SSP
passed the order dated 28.03.1991, discharging the
respondent-plaintiff. The said order is relevant and for ready
reference is being reproduced as under:
"ORDER
Constable Jaswant Singh No. 1669/ASR s/o Shri Hazara
Singh, caste Jat, R/o Village Thoba, PS Ramdass, Police
District Majitha is hereby discharged from service under
PPR 12.21 as he is not likely to become an efficient police
officer. His absent period from 24.11.1990 to date is
treated as non-duty non pay.
Issue orders in OB.
Sd/-
Sr. Superintendent of Police,
Amritsar
No. 11369 - 76/B Dated 28.3.1991"
xxx xxx xxx
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22. In our considered view, all the three courts
misconstrued Rule 12.21 of PPR and decreed the suit filed by
the respondent- plaintiff. Looking to the contents of the order
of discharge, in the considered opinion of this Court, there is
no foundation of misconduct alleged in the order and it is an
order of simpliciter discharge of a probationer constable. The
judgment in Ratnesh Kumar Choudhary relied upon by the
respondent is of no help for the simple reason that in that case,
the initial appointment was alleged to be illegal based on a
vigilance report which was on record. Thereafter, notice was
issued on the anvil of the said vigilance report which contained
serious allegations and in the said peculiar situation, the Court
found that the termination was not simpliciter, but it was
punitive."
20. Even in the above said case, it was on account of absence of the
employee that the order of discharge had been passed. The argument of
there being no detailed enquiry was accepted by the trial Court as well as
the Ist Appellate Court and the High Court. However, the Hon'ble Supreme
Court, after considering the entire law, set aside the judgment passed by all
the three Courts and dismissed the suit filed by the employee therein.
21. In the present case, neither it is in dispute nor it is the case of
the respondent before this Court that a bare reading of the order of
discharge shows that it is punitive or stigmatic. No malafide against the
competent authority who had passed the order has been alleged. The fact
that the respondent-plaintiff was appointed on 11.11.1989 and was on
probation is also not disputed. Even the power of the Senior Superintendent
of Police under Rule 12.21 of the Punjab Police Rules to discharge an
employee within a period of three years of his enrollment has also not been
disputed. The fact that the respondent-plaintiff had absented himself from
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duty without leave from 02.12.1990 to 19.01.1991 i.e., 47 days 19 hours and
then from 19.01.1991 to 12.02.1991 i.e., 23 days 22 hours and 30 minutes
and thus, there being absence for a period of 72 days (approximately) has
also not been disputed. Thus, in the said circumstances and in view of the
law laid down in the abovesaid judgments, it cannot be said that the order of
discharge is either in violation of Rule 12.21 of the Punjab Police Rules,
1934 or is stigmatic or punitive. Reliance placed on behalf of the
respondent, upon the averments made in the written statement to the effect
that the plaintiff-respondent was stated to be a habitual absentee during his
short period of tenure also cannot be made the basis to hold that the order of
discharge was punitive or stigmatic. Reference in this regard may be made
to the observations made in paragraph 20 of the judgment of the Hon'ble
Supreme Court in the case of State of Punjab and others vs. Sukhwinder
Singh (supra) (relevant portion of which is reproduced hereinabove), to the
effect that the High Court had completely gone wrong in building up a case
of the order of discharge being punitive on the basis of averments made in
the written statement to the effect that the employee was a habitual absentee
during the short period.
22. Even the judgment relied upon by the learned counsel for the
respondent in the case of State of Punjab and others vs. Balbir Singh
(supra) would also not further the case of the respondent. Apart from the
fact that the said judgment has been duly considered in the subsequent
judgment of the Hon'ble Three Judges Bench of the Hon'ble Supreme Court
in the case of State of Punjab and others vs. Sukhwinder Singh (supra), it
would be relevant to note that even in the said case, it was observed that the
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order of termination passed could not be held to be punitive in nature, as the
preliminary inquiry done in the said case was done with a view to determine
the suitability of the employee within the meaning of Rule 12.21 of the
Punjab Police Rules, 1934 and that the termination was not founded on
misconduct but was on account of misbehaviour of the employee with a
lady Constable and of having consumed liquor in office, which factors were
considered for determining the suitability of the respondent for the job, in
light of the standards of discipline expected from a police personnel. For the
said reasons, the impugned judgment of the High Court was set aside and
the appeal filed by the State of Punjab and others was allowed. The
impugned order of discharge in the said case was also similar to the
impugned order passed in the present case and the order of discharge was
challenged primarily on the ground that the same was passed without
conducting any regular disciplinary enquiry. It is in the said background,
that the Hon'ble Supreme Court had observed that in case an enquiry or an
assessment is aimed at determining the suitability of an employee for a
particular job, then such termination would be termination simpliciter and
not punitive in nature. The Hon'ble Supreme Court thus, in a case where an
employee is stated to have misbehaved with a lady constable and also
consumed liquor in the office and subsequently discharged had held the said
order of discharge to be not punitive. The facts of the present case are on a
higher footing to uphold the order of discharge than the facts of the
employee in the abovesaid judgment before the Hon'ble Supreme Court.
23. Thus, the substantial question of law which arises for
consideration in the present case is answered in favour of the appellant
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-State and against the respondent-plaintiff. It is held that the order dated
14.05.1991 vide which the plaintiff had been discharged during the
probation period is in accordance with the provision of Rule 12.21 of the
Punjab Police Rules, 1934 and the said order is an order of discharge
simpliciter. Accordingly, the finding on issue no.4 of the trial Court as well
as the Ist Appellate Court is liable to be set aside and is accordingly set
aside.
24. As an ancillary point, it would be relevant to note that the
respondent-plaintiff even as per his own case had filed a representation
against the order dated 14.05.1991 to the Deputy Inspector General of
Police and the Deputy Inspector General of Police, vide order dated
18.07.1991, had observed that after carefully going through the order and
other relevant record as well as the representation, all the points raised were
without any valid reason or legal justification and as such were not
sustainable and the order dated 14.05.1991 called for no inference and
accordingly, the representation was rejected. Although in the same order, it
was also observed that no appeal lies against the order passed under Rule
12.21 but once the plaintiff had filed a representation and the higher
authority had also passed an order after taking into consideration the
relevant record, then a specific challenge to the said order was also required
to be made in the said suit and a declaration regarding said order was also
required to be prayed for, which admittedly has not been done. Although
the said aspect is not the primary reason for allowing the present appeal.
25. At this stage, it would also be relevant to note that the Ist
Appellate Court had observed that in the present case there was non-
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compliance of Rule 19.5 of the Punjab Police Rules and thus the order of
discharge deserves to be set aside. Rule 19.5 reads as under:-
"19.5. Further training of Constables. - (1) The fact that a
recruit has been passed into the ranks under rule 19.3 shall not
be taken to mean that he is a fully trained Constable. A
Constable under three years' service is at any time liable to
discharge under rule 12.21. During the whole of this period he
shall be kept under close supervision and reported on at
intervals of six months in Form 19.5(1) by the Sub-Inspector or
Inspector under whom he is working through his gazetted
officer to the Superintendent of Police.
The orderly Head-Constable shall maintain a list of
Constables under three years' service. He shall submit the
name of each man a month before he is due for confirmation to
the Superintendent together with his personal file which shall
contain the form 19.5(1) referred to in this rule.
Gazetted officers are expected to make themselves
acquainted, as far as possible, with the characters and careers
of all Constables under three years' service and shall be
responsible that the names of men unlikely to make efficient
police officers are brought to the notice of the Superintendent.
(2) On being transferred from the lines after completion
of his training in the first reserve, a Constable under three
years' service shall be instructed in the practical duties of a
Constable by the Inspector or Sub- Inspector under whom he is
serving. He shall be sent out of beat, patrol, traffic and other
duties with a selected senior Constable who shall be made to
feel his responsibility for the instruction of the younger man."
26. A perusal of the plaint would show that no reference had been
made to there being any violation of Rule 19.5 or that the proceedings /
order of discharge was required to be set aside on account of non-
compliance of Rule 19.5. Thus, the said observations by the Ist Appellate
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Court had been made without any pleading. The trial Court had not taken
into consideration the said aspect while decreeing the suit of the plaintiff-
respondent. Thus, the Ist Appellate Court, for the first time considered the
said aspect in the appeal filed by the appellant-State. The Division Bench of
this Court in the case of Ex-Constable Ravinder Singh vs. State of Punjab
reported as 2003(3) SCT 269 had observed that the provision of Rule 19.5
was regulatory in nature and was meant only for internal management and
supervisory control of the superior police officials over the trainee
constables and had rejected the argument raised on behalf of the employee
therein that on account of non-compliance of the provision of Rule 19.5, the
order of discharge would stand vitiated. Even in the said case, the employee
therein was absent for 13 days 4 hours and 25 minutes and was discharged
from service under Rule 12.21 of the Punjab Police Rules, 1934 and the plea
taken by the employee was that he had fallen sick. The challenge to the
order of discharge was made on two grounds, one of them being that the
said order of discharge had been passed in violation of the provision of Rule
19.5 of the 1934 Rules and as such was vitiated and the said ground of
challenge was rejected as has been stated hereinabove. Thus, the basis of
decreeing the suit and dismissing the appeal filed by the appellant-
defendants in the present case by the Ist Appellate Court was primarily in
view of the alleged non-compliance of Rule 19.5 of the 1934 Rules which is
against the law as laid down by the Division Bench of this Court in the
abovesaid case.
27. Moreover, a reading of the abovesaid Rule does not even
remotely suggest that the competent authority can base its discharge order
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under Rule 12.21 of the 1934 Rules solely on the basis of the report /
information as stated in Rule 19.5. The Full Bench of this Court in the case
of Sher Singh vs. State of Haryana reported as 1994(1) PLR 456 had held
that a Superintendent of Police can form his own opinion regarding the
likelihood or otherwise of a constable making a good police officer and the
said opinion need not be made on the basis of the periodic reports
contemplated under Rule 19.5. It had further been observed that a single act
of indiscipline can lead the authority to conclude that the constable is
unlikely to prove to be an efficient police officer and to discharge him from
service. The said judgment of the Full Bench as has been stated hereinabove
has been approved by the Hon'ble Supreme Court in the case of State of
Punjab and others vs. Sukhwinder Singh (supra). It is also relevant to note
that a close scrutiny of the facts in the case of State of Punjab and others
vs. Sukhwinder Singh (supra) would show that the order of discharge was
held to be valid by the Hon'ble Supreme Court, even though there was
nothing to show that the said order of discharge had been passed in
pursuance of the report / information as mentioned in Rule 19.5 given to the
competent authority. No contrary judgment has been cited on behalf of the
respondent on the said aspect.
28. In the present case the execution of the judgment and decree of
the Ist Appellate Court has been stayed by the Coordinate Bench of this
Court vide order dated 03.01.1995 and the said order has been in operation
till date and it is not disputed before this Court that the judgments have not
been given effect to.
29. The present Regular Second Appeal has been filed under
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Section 41 of the Punjab Courts Act, 1918 and not under Section 100 of
CPC and that in paragraph 27 of the judgment of the Constitutional Bench
(Five Judges Bench) of the Hon'ble Supreme Court in the case of
Pankajakshi (dead) through legal representatives and others Vs.
Chandrika and others and other connected matters reported as (2016) 6
Supreme Court Cases 157, it was observed that since Section 97(1) of the
Code of Civil Procedure (Amendment) Act, 1976, has no application to
Section 41 of the Punjab Courts Act, it would necessarily continue as a law
in force. Section 41 of the Punjab Courts Act provides that an appeal would
lie to the High Court from every decree passed in appeal by any Court
subordinate to the High Court on any of the grounds mentioned therein and
one such ground, i.e., ground No.(a) is when the decision is contrary to law
or to some custom or usage having the force of law. The finding of the trial
Court and also of the Ist Appellate Court, as has been discussed
hereinabove, is found to be contrary to the settled law and the substantial
question of law as framed in paragraph 12 of the present judgment has also
been held in favour of the appellants and thus, the impugned judgments
deserve to be set aside.
CONCLUSION
30. Keeping in view the abovesaid facts and circumstances, the
impugned judgment and decree passed by the trial Court as well as the Ist
Appellate Court are set aside and the present appeal being meritorious, is
allowed and the suit filed by the plaintiff is dismissed.
(VIKAS BAHL)
January 27, 2025. JUDGE
Davinder Kumar
Whether speaking / reasoned Yes/No
Whether reportable Yes/No
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