Bhagat Singh vs State of Punjab and Another

Dr. Bharat Bhushan Parsoon, J.—Petitioner seeks issuance of an appropriate writ impugning order dated 29.8.1992 communicated to the petitioner on 3.10.1992 discharging him from service, claiming it to be illegal, unwarranted and unjustified. He has also claimed reinstatement with continuity of service, full back wages and all other consequential benefits. Having served Indian Army as Havaldar in Bengal Engineering Group from 26.6.1974 to 31.3.1991, the petitioner was enrolled with Punjab Police on 4.6.1991. When he was undergoing training, he was dismissed from service on 29.8.1992 (Annexure P-7) as communicated to the petitioner on 3.10.1992 (Annexure P-6). Asserting validity and legality of the impugned order and communication thereof to the petitioner, the respondents have claimed that when the petitioner was found unlikely to prove an efficient police officer, he was discharged by the competent authority under Rule 12.21 of the Punjab Police Rules, 1934 (hereinafter called as, the Rules). Dismissal of the petition was sought.

Learned counsel for the parties have been heard while going through the paper book.

Counsel for the petitioner has urged that the impugned order of discharge not only prejudices the petitioner but also visits him with a stigma and having not been preceded by any indictment in departmental enquiry, such order could not have been passed. It is claimed that the petitioner was neither informed nor heard and though enquiry was started, abandoning and aborting the same, he was discharged from service.

Contention of counsel for the respondents is that since the petitioner was on training and had yet not completed three years of his service, he could be discharged under Rule 12.21 of the Rules and thus, the impugned order was passed against him on requisite satisfaction recorded by the competent authority.

At this stage, reference may be made to Rule 12.21 of the Rules as under:

12.21. Discharge of Inefficient.-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.

From this rule, it follows that satisfaction is to be recorded by the Superintendent of Police that relevant person is "unlikely to prove an efficient police officer". Such satisfaction is to be recorded on tangible material. The word "found" preceding the words "unlikely to prove an efficient police officer" is of significance. Such finding thus is to be based on perceptible material and discernible attendant circumstances. In order to find out whether the impugned order in substance is innocuous or by way of punishment, facts which preceded and succeeded passing of such order need to be looked into. Real nature of the order is to be known. Needless to state that Article 311(2) of the Constitution of India provides potent protection to public servants. These provisions need to be followed.

Impugned order (Annexure P-7) was communicated to the petitioner on 3.10.1992 vide Annexure P-6. For evaluation, the impugned order for ready reference is reproduced as below:

It has been reported to me by Supdt. of Police, Police Recruits Training Centre, Jahan Khelan, District Hoshiarpur, vide his memo No. 15877 dated 21.8.1992 that the act and conduct of Constable Bhagat Singh No. 2152/FDK is not satisfactory and he is unlikely to become a good police officer. I am also satisfied with his report.

I, Jasminder Singh, IPS Senior Superintendent of Police, Faridkot being competent authority do hereby discharge Constable Bhagat Singh No. 2152/FDK from service with effect from today, i.e. 29.8.92 afternoon under P.P.R. 12.21 as he is found to be unlikely to prove a good police officer. Book and issue.

Sd/- Senior Superintendent of Police Faridkot

From perusal of this order, it transpires that basis of order Annexure P-7 is the report (Annexure R-3) of Superintendent of Police, Police Recruits Training Centre, Jahan Khelan, District Hoshiarpur. It is of 21.8.1992. When this report (Annexure R-3) is perused, it transpires that report on work and conduct of 8 trainee constables, including the petitioner, was sent in a prescribed form (Annexure R-4) which thus become of utmost relevance and for quick reference is reproduced as below:

SIX MONTHLY REPORT ON TRAINING OF CONSTABLES Report on the working of Constable No. 2152/FDK Name

Sd/- Signature Rank 21.8.92

Note:

His history sheet, which is prepared during training has been sent to concerned district. For more information his history sheet be gone through.

Going through Annexure R-4, it is found that columns No. 3 to 8 had not been appropriately filled and column No. 2 had also been filled casually and meaninglessly. Relevant columns are 9 and 10.

By now, it is clear that report against the petitioner to the effect that "he is not fit for becoming a good police officer" is solely based on the following finding:

He was in habit of remaining absent and used to be negligent during duty.

There is absolutely no mention as to on which dates he was found absent and what kind of negligence was shown by him in performance of his duty during the training. When Annexures R-3 and R-4 are read conjointly, it is not clear as to who is author of report (Annexure R-4). There is no mention that the said report is by Superintendent of Police, Police Recruits Training Centre, Jahan Khelan, District Hoshiarpur. Even forwarding letter Annexure R-3 was sent for and on behalf of the said Superintendent of Police who is not author of the same. This report was sent pursuant to a communication made by respondent No. 2 to S.P., PRTC, Jahan Khelan, Hoshiarpur on 2.8.1992 calling him upon to send report regarding Constable Bhagat Singh No. 2152/FDK for the period ranging from 19.8.1991 to 12.1.1992 during which he had remained on training in that centre.

If he had remained absent during this period, such dates could very well be mentioned. Even if he was negligent in performance of his duty, nature of duty assigned and details of negligence shown by the official was also to be mentioned. There is complete lull on this score. Stand of the petitioner is that he had not only been regular but had also been performing his duty during training as a constituent of disciplined force since he had also unblemished long disciplined service of Indian Army to his credit.

Contention of the learned counsel for the petitioner is that report (Annexure R-4) was got manipulated from training centre though the petitioner had neither been absent nor had been negligent in performance of his duty.

When pleadings of respondents are evaluated more closely, it transpires that during his training, a surprise checking was made by the Company Commander on 8.1.1992 when different kind of medicines as detailed in Annexure R-1 were found in the iron box of the petitioner and sequelly a conclusion was drawn that he was doing medical practice in the centre without permission as he was qualified to practice medicine as per certificate (Annexure P-8). Without any enquiry having been held into the entire episode, alleged recovery of medicines from the iron box of the petitioner ipso-facto would not be sufficient to come to a conclusion that he was practising medicine among his fellow trainees.

Learned counsel for the respondents has pointed out that on these allegations, a departmental enquiry was initiated against the petitioner on 30.1.1992 and charge-sheet was duly served wherein the Enquiry Officer had also been named. It is claimed that the Enquiry Officer had also submitted his findings on 25.7.1992.

It is surprising that aborting further proceedings under the said enquiry, the respondents relying upon report (Annexure R-4) of the training centre discharged the petitioner from service. When impugned order (Annexure P-7) is appraised in relation to report (Annexure R-4), it also becomes evident that satisfaction of respondent No. 2 is not based on his individual findings. Without evaluating the record much less with application of mind, there is only casual reference by respondent No. 2 that he was also satisfied with the report.

From entirety of facts and circumstances, it transpires that whole procedure was short-circuited clearly with a view to dispense with the services of the petitioner without following proper procedure. Malafides of the respondents in getting rid off the petitioner by taking a very short and easy route though the same was illegal, are clear from stand of the respondents which got exposed when enquiry proceedings were abandoned. This stand of the respondents contained in para 10(iv) of the written statement, is as under:

(iv) That the contents of sub para No. iv of para No. 10 of the petition are denied being incorrect. The petitioner was discharged under rule 12.21 of Punjab Police Rules on the basis of Six Monthly reports, on the reasons mentioned in para No. 8. The departmental enquiry regarding the allegations for which the petitioner was charge sheeted was ordered to be kept pending on 8.9.1992 vide order No. 13311-12/B dated 8.9.1992 as the petitioner was already discharged on 29.8.1992 and further there is order that if the petitioner returns to the department either by way of appeal or order of the court, the concerned papers regarding enquiry may be put up for further departmental proceedings.

It is strange that the respondents kept the enquiry pending to nail the petitioner later if he was to come back to service on quashing of order of his dismissal by any Court of Law. This approach of the respondents is reprehensible and thus is deprecated.

It is clear from impugned order (Annexure P-7) that even though it is based on report of alleged absence during training and negligence in performance of his duty, by no means it is innocuous in nature and rather is stigmatic as also has visited the petitioner with evil consequences. The impugned order though is worded in innocuous terms, it is clearly a camouflage and in fact is order of dismissal from service on the ground of misconduct and having been made without holding regular departmental enquiry and without giving an opportunity to the petitioner to show cause against the purported order of dismissal from service, it is evidently in complete violation of the provisions of Article 311(2) of the Constitution of India. Short-circuited course adopted to avoid regular enquiry was not permissible as held by this Court on 11.11.2009 in RSA No. 1875 of 1996 titled as State of Punjab and another Versus Ex. Constable Mehar Singh.

In Prithipal Singh Vs. State of Punjab and Others, where discharge had been made under Rule 12.21 of the Rules without affording an opportunity of hearing even though it revealed that it had been passed on misconduct of the appellant, had been held to be a stigmatic discharge. In the facts of that case, it was held that opportunity of hearing was to be provided to the appellant. Relevant findings of the Hon''ble Supreme Court of India are reproduced as below:

The aforesaid record plainly reveals recording of misconduct of the Appellant. It records, he has disobeyed the orders of his superiors. Once this is recorded in the service record, which is disclosed by the Respondent, it cannot be said there is no stigma attached to the order of discharge. Once there is stigma, the principle is well settled, an opportunity has to be given before passing any order. Even where an order of discharge looks innocuous, but on close scrutiny, by looking behind the curtain, and if any material exists of misconduct and which is the foundation of passing of the order of discharge, or such could be reasonably inferred, then it leaves to no room of doubt that any consequential order of discharge would be construed as stigmatic. Then opportunity has to be given. It is also not in dispute that no opportunity was given to the Respondent before passing the impugned order of discharge. On the facts of this case, we are deliberately not going into the wider question, whether any opportunity is necessary or not before passing an order under the aforesaid Rule, but suffice it to say that on the facts of this case, as we have recorded above it was obligatory for the Respondent to have given an opportunity to the Appellant before passing the discharge order. Hence, the impugned order of discharge dated 22nd February, 1997 is unsustainable and is set aside.

In case of absence of a constable when discharge order was under Rule 12.21 of the Rules, it was held to be stigmatic order and being violative of principles of natural justice, was set aside in Jhirmal Singh Vs. State of Punjab The observations of the Hon''ble High Court are as under:

The bare reading of the impugned order 31st August, 1992 not only records a finding of the kind recorded in Prithipal Singh''s case (supra) but it also refers to an act of misconduct or indiscipline on the part of the delinquent police official, in remaining unauthorisedly absent for 70 days. These two factors render the impugned order stigmatic in view of the law laid down by the Hon''ble Supreme Court. The order would be violative of principle of natural justice as well as would offend the principle of law afore-referred.

In State of Haryana and another Vs. Jagdish Chander, in similar circumstances considering the same rule and order of discharge of the present kind, it was held by Hon''ble Apex Court as under:

It would thus be clear from the order of discharge that it is not an order of discharge simpliciter. On the other hand, the S.P. considered the record and found him to be habitual absentee, negligent to his duty and undisciplined. The findings of habitual absence and indiscipline necessarily against stigma on his carrier and they would be an impediment for any of future employment elsewhere. Under those circumstances, the principles of natural justice do require that he should be given an opportunity to explain the grounds on which the S.P. proposes to pass an order of discharge and then to consider the explanation submitted by the police officer. Then the S.P. is competent to pass appropriate orders according to the rules. Since this part of the procedure had not been adopted, the order of discharge is vitiated by manifest error of law.

When apparently an innocuous order of dismissal under the same rule was found to be punitive and that the same had not been passed in compliance of Rule 16(2) of the Rules and Article 311 of the Constitution of India, it was set aside. Reference in this regard may also be made to the authorities reported as Smt. Rajinder Kaur Vs. State of Punjab and Another, , Ex-Constable Rajinder Kumar Vs. State of Haryana and Others ) Surinder Pal Kaur Vs. The State of Punjab and Others, and State of Punjab Vs. Sukhwinder Singh

In view of the facts and circumstances of the case, the authority reported as Karan Singh Versus The State of Punjab etc. 1972 Cur LJ 442 (P & H) cited by learned counsel for the respondents holding that removal of a constable under Rule 12.21 of the Rules can be made within three years from the date of his enrolment though being undisputed in proposition of law, is of no avail to the respondents, facts and circumstances of the case in hand being entirely different. Keeping in view the totality of facts and circumstances, the petition is allowed and impugned order (Annexure P-7) communicated to the petitioner vide Annexure P-6 having been passed in utter violation of the provisions of Article 311 of the Constitution of India as also Rule 16(2) of the Rules, is set aside. Sequelly, the petitioner is ordered to be reinstated with continuity of service, back wages and all other consequential benefits.