Constable Surinder Kumar vs State On Haryana and Others

K.S. Garewal, J.—This is a group of eleven cases. Facts of each case are different although each Petitioner is aggrieved by discharge orders passed against him under Rule 12.21 of the Punjab Police Rules, 1934 (as applicable to Haryana, for short ''the Rules'').

On May 30, 2000 learned Single Judge before whom these cases were argued had held that "the orders impugned in the writ petitions which have admittedly been passed in exercise of power under Rule 12.21 of the rules within the period of 3 years from the respective date of enrolment of the Petitioners call for no interference." The Petitioners filed Letters Patent Appeals which were decided on October 7, 2004. The appeals were allowed and the orders passed by the learned Single Judge were set aside. The matter was remitted back for fresh decision.

The facts:

(A) Surinder Kumar (Petitioner in CWP No. 5576 of 1992) was recruited as Constable on July 11, 1989. He successfully concluded training at Madhuban in April, 1990 and after serving for two months with Haryana Armed Police, Karnal he was allocated to District Jind and given Constabulary No. 2/770. In July, 1990 the Petitioner was posted at Police Station, Narwana and was to go to police Lines, Jind for some course but he fell ill on July 25, 1990 with high temperature and vomitting. He pleaded that he was examined by Dr. M.L. Taneja at Sonepat and he remained admitted as an indoor patient at Pooja Hospital up to August 9, 1990, whereafter he was discharged after recovery. The Petitioner resumed duties at Police Station, Narwana on August 10, 1990. After rejoining the duty, the Petitioner applied for medical leave for the period of absence, as detailed above. On August 24, 1990 the Petitioner was also sanctioned seven days leave and he went to his village. The Petitioner was to resume his duty on September 1, 1990 but due to illness of his father, he sought extension for two more days through a telegram. The Petitioner left his village on September 3, 1990 to join duties at Narwana but due to the anti-reservation movement in the State when he reached Sonepat, he found that there was no bus service to Jind or Narwana. The Petitioner got his presence marked at Police Station, Sonepat on September, 3, 1990. Since there was a lot of violence and strikes all over Haryana on account of the anti Mandal reservation, the Petitioner could resume his duties only on September 7, 1990. On August 26, 1991 the Petitioner was suddenly informed that he had been discharged by Superintendent of Police, Jind under Rule 12.21 of the Rules as he was unlikely to be proved as efficient Police Officer. According to the Petitioner the order of discharge was passed more than nearly one year after his alleged absence with an ulterior motive as a measure of punishment. The Petitioner made a representation but was rejected and thereafter filed a writ petition challenging the order of discharge on the ground that it was violative of principles of natural justice and also violative of Rule 16.24 of the Rules. The order of discharge dated August 26, 1991 passed by Superintendent of Police, Jind is Annexure P-5 and is in the following terms:

Constable Surender Kumar, No. 787/Jind is habitual and wilful absentee from duty without leave or permission, indisciplined and disobedient. He is unlikely to prove an efficient Police Officer, hence discharged under PPR 12.21 with effect from forenoon of 26th August, 1991.

(B) Yashwanti, Petitioner in CWP No. 9360 of 1992, was enlisted as Lady Constable on March 22, 1992 and on April 4 she was deputed for training but discharged on May 4, 1992. The Petitioner pleaded that she was wife of Ajit Singh, President of the Union of Employees of the Haryana Police. In April/May, 1992 there had been an agitation on behalf of the police men and the Petitioner was discharged to create a pressure on her husband. The order of discharge passed on May 1, 1992 by Superintendent of Police, Telecommunication (Haryana), Chandigarh has been annexed as Annexure R-1 and is in the following terms:

Lady Constable Yashwanti Devi, No. 2087/C of this section is hereby discharged from service under P.P.R. 12.21 with immediate effect, since she is not likely to prove to be a good Police Officer.

However, Yashwanti Devi, when asked to furnish her detailed particulars for verification of character and antecedents, had filled up the prescribed form on January 31, 1992, in which she had concealed that she was married. In the form, which was sent to District Magistrate, Jind she had said that she was daughter of Dalip Singh, not wife of Ajit Singh. Later she filled up a similar form for verification of character and antecedents, which was sent to District Magistrate, Bhiwani. In the second form she was wife of Ajit Singh. Moreover, in the first form she had given her present and permanent address to be that of her father Dalip Singh (district Jind). In the second form she had given her present and permanent address as that of her husband Ajit Singh (District Bhiwani). In the verification report from Superintendent of Police, Bhiwani it was mentioned that Yashwanti Devi had been married for 9-10 years. Furthermore, Yashwanti Devi was verified to be the wife of discharged Constable Ajit Singh who had been discharged during the police strike.

(C) Anant Ram is the peitioner in CWP No. 490 of 1994. He was enrolled in the Haryana Police on October 8, 1989. The Petitioner was posted at Karnal Rest House on sentry duty from 3 A.M. to 6 A.M. on February 10, 1992, Commandant 1st Battalion, Haryana Armed Police was also staying in the Rest House. At night Respondent No. 3 heard some noise coming from out side his room and on being woken up he started rebuking all the Constables and Head Constable present there. At that time there was a Head Constable and C. Ishwar Singh as well as the Petitioner. The Head Constable, in order to save his skin, implicated C. Ishwar Singh and the Petitioner, whereupon Respondent No. 3 discharged both of them under Rule 12.21 of the Rules. The order passed against the Petitioner had been annexed at Annexure P-l and is as follows:

Ct. Anant Ram, No. 1/699 was enlisted as Const.on 8th October, 1989, this Constable absented himself from Roll Call on the following dates:

(i) On 30th June, 1991 he absented himself from General Roll Call for 11 hours and 15 minutes and to amend this Constable he was awarded 2 days punishment drill.

(ii) On 28th January, 1992 this Constable again absented himself for 1 day 3 hours and 5 minutes and he was awarded 2 days leave without pay so that this Constable can amend himself and become a good Police Officer.

Ct. Anant Ram No. 1/699 was posted on the Guard of Canal Rest House on 9th February, 1991 where the undersigned is staying. On the night of 9th February, 1991 Ct. Anant Ram under the influence of liquor started quarrelling with another Constable who was also posted at the same guard. Under the influence of liquor he created nuisance at his place of posting i.e. Canal Rest House. The above acts of misconduct and absence clearly shows that this Constable is not likely to prove a good police officer and as such keeping in view the provisions under-Ill of PPR 12.21, he is hereby discharged from the police force with effect from A.N. of 10th February, 1992.

(D) Des Raj and seven others are Petitioners in CWP 5541 of 1992. The Petitioners were recruited as Constables in April, 1992 on the basis of a recruitment test held at Hisar by Superintendent of Police, Hisar to fill up 31 vacancies of Constables. The Petitioner possessed the minimum educational qualification of matericulation and also the requisite physical standard of height and chest expansion. They participated in the recruitment test and selected. The measurement of their height and chest expansion had actually been conducted by the Superintendent of Police himself. The Petitioners were formerly enrolled on April 28, 1992.

Superintendent of Police, Hisar was transferred and in his place another Police Officer was appointed who joined on May 1, 1992 who ordered a second physical test on the morning of May 9, 1992. However, without constituting any Medical Board and without measuring the height and chest expansion, the Superintendent of Police declared that the Petitioners were being discharged as they were not physically fit for recruitment. Consequently, a common order of discharge was passed on May 4, 1992 under Rule 12.21 which is annexed as Annexure P-l and reads as under:

According to order No. 7189--92 dated 9th May, 1992 under Rule 12.21 PPR recruits Vinod Kumar, C. No. 1770 s/o Ishwar Singh, Sita Ram, No. 1766 s/o Hari Chand, Des Raj, No. 1790 s/o Daya Nand, Pawan Kumar No. 1788 S/ o Mani Ram, Ajay Kumar No. 1787 s/o Sri Chand, Jeewan Parkash, No. 1786 S/o Jagdish Parshad, Krishan Kumar, No. 1785 S/o Man Phool, Rajinder Singh, No. 1769 s/o Om Parkash are hereby discharged forthwith under Rule 12.21 of PPR. They are relieved from the Force and Uniforms and other goods should be got deposited in the Government godowns.

(E) Ravinder, Ram Niwas, Dharamvir Singh, Wazir Singh, Krishan Kumar, Sanjay Kumar and Subhash Chander are Petitioners in CWP Nos. 9354, 9358, 9359, 9362, to 9365 of 1992. The Petitioners enrolled as Constables and joined on April, 30, 992 in the Jind Police. A new Superintendent of Police joined at Jind on May 3/4, 1992 and he directed that all 44 Constables who had been recruited, including the Petitioners, should again attend physical/medical examination. 12 Constables were discharged as a result of the examination on the ground that they did not possess the required physical standard. The Petitioners passed this test but they were discharged under Rule 12.21 of the Rules on the ground of absence from the Police Lines for different periods. The periods of absence culled from the pleadings are mentioned below:

(i) Ravinder 11 hours 35 minutes (over-night)

(ii) Ram Niwal Ditto

(iii) Dharamvir Singh Ditto

(iv) Wazir Singh 8 hours 35 minutes (Over night)

(v) Krishan Kumar 4 hours 45 minutes (Over night)

(vi) Sanjay Kumar 11 hours 35 minutes (Over night)

(vii) Subhash Chander 8 hours 35 minutes

The Arguments

According to the learned Counsel for the Petitioners powers under Rule 12.21 of the Rules have been exercised in such a way that the Constables have actually been punished for misconduct. The orders of discharge must be set aside because punishment can only follow proven misconduct which must be established on the basis of an inquiry. While exercising powers under Rule 12.21 of the Rules, the Superintendents of Police do not conduct any inquiry but simply discharge the concerned Constable without resorting to disciplinary proceedings. This course of action would be valid only if the order of discharge did not amount to punishment and was not stigmatic in nature. The moment there was even a whiff of stigma, principles of natural justice would get invoked and the orders of discharge would stand vitiated.

At this stage it may be useful to.reproduce Rule 12.21 of the Rules:

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.

The principles of law have been discussed in various pronouncements of Courts, which may be enumerated: State of Haryana and Anr. v. Jagdish Chander 1985 (2) R.S.J. 868, Prithpal Singh v. State of Punjab and Ors. 2000 (4) S.L.R. 754, Major Singh v. State of Punjab and Ors. 2000 (5) S.L.R. 141, Bahadur Singh v. The State of Haryana and Ors. 1988 (1) S.L.R. 651 , Om Parkash v. State of Haryana and Ors. 1991 (4) S.L.R. 75 , Ex. Const. Ram Niwal v. State of Haryana 1998 (4) S.L.R. 493 and The Punjab State and Ors. v. Sukhwinder Singh 2001 (2) R.S.J. 33.

In Jagdish Chander''s case (Supra) the Constable enrolled in 1985 was found to be absent from duty for 25 days in 1992 and was discharged under Rule 12.21 of the Rules. Since this order had been passed after three years of enrolment of the Constable the Superintendent of Police had to objectively considered the record and record conclusions but if he recorded a finding which could caste a stigma on the Constable, rules of natural justice requires that an opportunity of hearing has to be given before passing the adverse order. The High Court had straightaway set aside the discharge order and directed reinstatement with consequential benefits but the Supreme court did not agree and held that the State should hold an inquiry and give an opportunity to the Constable of being heard and then pass the appropriate order. This case does not really apply to any of the cases in hand because in none of these cases has the discharge order been passed after three years of the enrollment of the concerned Constable.

In Prithpal Singh''s case (Supra) also the discharge order had been passed after nine years of the enrollment for four periods of absences. The Court held that the discharged Constable deserved an opportunity of hearing before being discharged.

In Major Singh''s case (Supra) the Constable had not completed three years of service and the High Court upheld the discharge simpliciter under Order 12.21 of the Rules but the Supreme Court held that the termination order, running into five pages, had completely stigmatised the Constable.

In Bahadur Singh''s case (Supra) a Chowkidar of the Forest Department was discharged from service for absence from duty. The discharge was set aside.

In Om Parkash''s case (supra) there was an unauthorised absence from duty but it was found that the order was, though couched in simple language was infact punitive as the whole basis was misconduct of the Petitioner for naving absented himself unauthorizedly during the training period.

In Ram Niwas''s case (supra) the Petitioner was discharged for being habitually absentee from duty, his Petitioner was allowed and the discharge order was set aside.

There must be a number of cases in which Rule 12.21 of the Rules had been used to discharge lazy, truant and, therefore, inefficient police officials. The question to be considered is whether an inquiry would be necessary in each such case when the official is discharged for absence from duty. In the present cases, barring the case of Des Raj and seven others and of Yashwanti Devi, all the Petitioners had been found to be absent from duty for different periods. Anant Ram had been additionally found to be creating a nuisance while being drunk on duty. Absence from duty is a question of fact. It is not something which could be contested like other types of misconduct. For example, if a Constable misbehaved under influence of liquor or spoke rudely to his senior officer or was found stealing case property, an inquiry had to be conducted to arrive at the truth. In cases of absence from duty there is really no need to hold an inquiry. In none of these cases did not Petitioner plead that he was not absent. The Petitioners have come up with lame excuses for absence and not with substantive defences.

In Aligarh Muslim University and Others Vs. Mansoor Ali Khan, , a Laboratory Assistant in the University had obtained two years extraordinary leave to work in Libya but he over stayed leave. When his service were terminated automatically without an inquiry he pleaded violation of rules of natural justice. The Hon''ble Supreme Court invoked the doctrine of "useless formality" as propounded in S.L. Kapoor Vs. Jagmohan and Others, by following Ridge v. Baldwin (1963) 2 All ER 66 (House of Lords) and held that there were certain exceptions to the rules of natural justice. It was concluded that no prejudice had been caused to the Laboratory Assistant who had over stayed leave if no inquiry was held. The reasons was that on admitted and undisputed facts only one view was possible, the case fell within the exception noted in S.L. Kapoor, the University''s appeal was allowed and the writ petition filed by the over-staying employee was dismissed.

The rule in Aligarh Muslim University''s case (supra) fully applies to the facts of all the cases barring the cases of Des Raj and seven others and Yashwanti Devi.

In the case of Des Raj and Ors. there was re-measurement of the height and chest expansion of the Petitioners and it was found that they did not measure up to the required standard of height and chest expansion. Height is something that cannot reduce. Even chest expansion is something that could not have reduced in a few days. One would expect a newly recruited Constable chest to swell up (with pride) and not measure less than the required standard. Therefore, even in these cases no inquiry was necessary as the physical standard had not been passed by the Petitioners and they were rightly discharged.

In Yashwanti Devi''s case there had been concealment of important facts regarding her marital status and place of residence. Therefore, her discharge from service was perfectly valid because she had tried to get recruitment by concealing that she was wife of Ajit Singh and tried to show that she was resident of Jind and was daughter of Dalip Singh. Such a Police Constable would certainly never be an efficient official. Therefore, her discharged had been correctly ordered.

In view of the above discussion, there is no merit in these writ petitions and the same are hereby dismissed. No costs.