Gurmit Singh vs State of Punjab and Another

Ranjit Singh, J.—The appellant, who was serving as Head Constable in Police, has filed this appeal to impugn the judgment passed by the First Appellate Court against the judgment and decree dated 11.01.1995, dismissing his suit. The appellant had challenged the order of his dismissal from police service by filing a civil suit which was decreed.

The appellant had joined the police service on 25.07.1979 and was promoted as Head Constable at Kapurthala w.e.f. 24.11.1987. On 17.01.1991, he proceeded on 30 days leave. He was accordingly required to report back on 15.02.1991. He, however, did not rejoin his duty. The appellant says he became ill and so could not join back. He would also claim that he had applied for extension of leave till 30.10.1991 by sending telegram. No order was ever conveyed to him and he presumed that the leave had been sanctioned and so he continued to remain on leave. The appellant also claimed to have reported for duty on 30.10.1991 on the expiry of the leave. As per him, he was not allowed to join the duty and was apprised that he had been dismissed from service on 26.10.1991 on the ground that he was treated as absent from duty w.e.f. 15.02.1991.

The appellant accordingly challenged this order on the ground that his plea that he was seriously ill up to 30.10.1991 at Civil Hospital, Kapurthala was not properly considered. He would also urge that no notice was ever served on him either for appearing for the inquiry about the absence. No charge sheet was ever served on him. He would also claim that no show cause notice was served on him and before passing the impugned order, he was not afforded any opportunity of hearing. The appellant accordingly would term the order as illegal, unlawful and void. The appellant thus challenged the order of his dismissal by filing the suit on 05.04.1994.

The respondent-State contested the pleas raised by the appellant on number of grounds. It is pleaded that the plaintiff was bound to exhaust the departmental remedy before filing the suit. It is also pleaded that no telegram was ever received regarding sickness or for extension of leave after 16.02.1991 and that the appellant had neither submitted any medical certificate nor he reported for duty after 16.02.19'' !. The averment that the appellant had reported for duty on 30.10.1991 as alleged in the plaint was denied. It is also stated that exparte inquiry proceedings were held against the appellant, after serving due notice to the wife of the appellant. Accordingly, the impugned order of dismissal is justified.

As per the averment, summary of allegation alongwith the list of witnesses were served at the home address of the appellant and were received by his brother, Kuldip Singh. When none appeared, the SSP had ordered the inquiry proceedings be continued exparte. It is also stated that the charge sheet was pasted on the door due to non-availability of the appellant. The order of dismissal was also statedly sent through special messenger at his home address, which was received by his wife.

On the basis of pleadings, the following issues were framed by the trial Court:

Whether the notice u/s 80 CPC is illegal? OPD.

Whether the suit is pre-mature? OPD.

Whether the plaintiff has got no locus standi to file the present suit? OPD.

Whether the plaintiff is entitled to the declaration prayed for? OPP.

Relief.

After hearing the parties and appreciating the evidence, the trial Court held that the service on the appellant was not properly effected as was required under Rule 22 of the Punjab Civil Services (Punishment and Appeal) Rules (hereinafter referred to as ''Rules''). As such the inquiry conducted without effecting the service on the appellant would render the impugned order illegal, void and the same was accordingly set aside. The State had then filed an appeal against the same, which was allowed, and so the appellant has now filed the present Regular Second Appeal.

The primary grievance raised by the counsel appearing for the appellant is that the appellant was not properly served before being proceeded again exparte during enquiry. Plea is mat the principle of natural justice was so violated. The counsel, accordingly, would support the view taken by the trial Court. On the other hand, learned State counsel would point out that the notice about the inquiry was duly served upon the wife of the appellant and still he failed to appear. The State counsel will also point out that the charge sheet and list of witnesses were also served on the brother of the appellant through a special messenger and accordingly would submit that there was proper service in the eyes of law and hence the submission made by the counsel for the appellant that there was no service leading to violation of principle of natural justice cannot be accepted.

I have considered the rival submissions made before me by the counsel appearing for the parties. The counsel for the appellant has drawn my attention to a decision in Civil Writ Petition No. 13154 of 2004 decided on 08.09.2006 titled as Simarjit Singh v. State of Punjab and Ors. This was a case of Constable, who was proceeded against departmentally under the provisions of the rules. He was also dismissed from service on the basis of inquiry held. Having remained unsuccessful in his departmental remedy, he had also filed a civil suit. One of the issues, which arose for consideration in Simarjit Singh''s case (supra) was the manner of effecting service on the delinquent employee. It was pleaded, as is the case in hand, that Rule 22 of the rules required service, to be effected on the delinquent employee in the manner as given in the rule and unless the service was effected in this manner, it could not be treated as service in the eyes of law. Rather the Division Bench in the case of Simarjit Singh (supra) clearly formulated the issue, which requires adjudication in this case as can be seen from the following observation made in the order:

The only question to be adjudicated upon while disposing of the instant controversy is whether the petitioner should be deemed to have been served with the revisional order on the basis of the despatch register produced by the respondent. In our view, the issue has to be adjudicated upon the basis of the Rule 22 of Punjab Civil Services (Punishment and Appeal) Rules, 1970.

Thereafter, Rule 22 of the Rule was referred to, which reads as under:

Service of Orders, notices etc.- Every order, notice and other process made or issued under these rules shall be served in person on the Government employee concerned or communicated to him by registered post:

Provided that if there is reason to believe that the Government employee is keeping out of the way for the purpose of avoiding service, or that for any other reason, the order, notice and other process cannot be served upon him in the manner aforesaid, the same shall be got published in any of the leading newspapers of the region giving last known address of the employee concerned and thereupon the same shall be deemed to have been served upon him.

Analyzing the provisions of above rule, the Division Bench has held that the rule requires that an employee must either be served in person or alternatively, it must be despatched to him by registered post. Proviso also make a provision for effecting service through publication. Concededly the service was effected on the wife of the appellant, which cannot be treated as service on personal of the appellant. Even the charge sheet and the list of witnesses were also not personally served on the appellant but on his brother. This fact would clearly emerge from the inquiry proceedings itself. On the basis of the service, as noticed in the inquiry proceedings, the exparte proceedings were held against the appellant and he was found guilty of the charge. The appellant was then dismissed from service. In the case of Simarjit Singh (supra), the impugned order passed in revision was taken to have been served on the employee who was petitioner in the writ petition and he was given liberty to avail the remedy on the basis of order so served on him. In other words, the petitioner therein was given liberty to challenge the order passed in revision, against which he had complained of having not been served on him.

Somewhat similar would be a situation in the present case. Here also, the service was not effected on the appellant for appearing before the inquiry in terms of Rule 22 of the rules. Even if, the submissions made by the State counsel are accepted that the appellant was not available to be served still there was need to serve him by a registered post as envisaged under Rule 22 of the rules or by publication as given in Rule 22. The service on the wife of the appellant or to his brother could not be taken as service in the eyes of law. Substantial question of law thus arise in this case as to whether the appellant was properly served in accordance with law before being proceeded against exparte before the enquiry proceedings;

Another fact, which has weighed with me to take this view is that record reveals that the appellant had asked for leave. There was a communication received from the brother of the appellant for granting extension of his leave to the appellant. This fact is found mentioned in the inquiry proceedings that a telegram was received from the brother of the appellant for extension of his leave by 30 days on account of his sickness. Since the appellant did not get an opportunity to show whether he was really sick, the fact which is obviously disputed by the State, it would be appropriate to give opportunity to both the parties to prove their respective assertions.

In view of this position, the impugned order can not be sustained and the same is set aside. However, liberty is given to the respondent to hold inquiry afresh. The appellant would be deemed to be served with the impugned order including charge sheet. Let the appellant appear before the Senior Superintendent of Police, Kapurthala on 26.04.2010. SSP would be at liberty to detail an inquiry officer to hold an inquiry in regard to absence and thereafter pass an appropriate order in accordance with law. There is no requirement of serving any fresh notice to the appellant. In case, the appellant is not in possession of the charge sheet or other documents, he may make a request in writing to the SSP, who would then supply these documents to him before further proceeding against him.

The Regular Second Appeal is disposed of.