Punjab State vs Balwinder Singh, Ex-Head Constable

R.L. Anand, J.—This regular second appeal has been filed by the State of Punjab and it has been directed against the judgment and decree dated 28.8.1998 passed by the Additional District Judge, Jalandhar who affirmed the judgment and decree dated 19.12.1996 passed by the Court of Civil Judge (Junior Division), Jalandhar, who decreed the suit of the plaintiff-respondent Head Constable Balwinder Singh.

The brief facts of the case are that Balwinder Singh plaintiff-respondent filed a suit for declaration that the order dated 5.7.1995 passed by the Deputy Inspector General of Police, PAP Jalandhar Cantt, whereby his appeal was dismissed and in which the order dated 31.8.1994 passed by the Commandant 13th Battalion, PAP Jalandhar Cantt dismissing him from service, creating the period from 8.2.1994 to 16.3.1994 and from 19.4.1994 to 24.4.1994 of his alleged absence as non-duty and further taking the period of suspension as period of suspension for all purposes, has merged, is illegal, null and void, against the provisions of service rules and rules of natural justice and is not binding on the plaintiff and he conlinues to serve the department as Head Constable as before 31.8.1994 with all consequential relief.

The case set up by the plaintiff in the trial Court was that the said orders being illegal, null and void are not binding upon him and that he continued to serve as Head Constable. According to the plaintiff, he was appointed as Constable in the Police Department on 27.7.1981, but he was promoted as Head Constable in June 1990. He suddenly fell ill on 8.2.1994 and after informing the Incharge Officer, he went to his village for treatment and enquiry was conducted against him on the allegations that the plaintiff remained absent from duty. The Inquiry Officer found him guilty and on the report of the Inquiry Officer he was dismissed from service on 31.8.1994. He filed an appeal before the Deputy Inspector General of Police which was also dismissed on 5.7.1995. According to the plaintiff, these orders are illegal as the order of dismissal has been passed by an authority below the rank of Inspector General of Police who was the promoting authority of the plaintiff as Head Constable.

Notice of the suit was given to the defendant-State of Punjab. They contested the suit and took preliminary objection regarding maintainability of the suit. Other allegations of the plaintiff were denied and it was alleged that notice u/s 80 CPC was not legal and valid. On merits they admitted that the plaintiff was recruited as a constable and was promoted as Head Constable in June, 1990.

On the pleadings of the parties, the trial Court framed the following issues :

Whefher the plaintiff is entitled to declaration as prayed for ? OPP

Whether a legal and valid notice u/s 80 C.P.C. was served before institution of the present suit ? OPP

Whether the suit is bad for non-joinder of neces-. sary parties ? OPD

Whether the suit lies within the jurisdiction of this Court ? OPP

Relief.

The parties were afforded opportunities to produce their evidence and on the completion of the trial, the suit was decreed by the trial Court. The defendant-appellant filed an appeal before the Additional District ludge, Jalandhar, who dismissed the appeal for the reasons given in para No. 9 of the judgment, which is reproduced as follows :

"No doubt, punishing authority of Constables and Head Constables is Superintendent of Police or Commandant according to Punjab Police Rules but admittedly the plaintiff was promoted as Head Constable by the Deputy Inspector General. of Police. Since the plaintiff was promoted as Head Constable by the Deputy Inspector General of Police, he could be dismissed only by the Deputy Inspector General of Police and not by Superintendent of Police. In case Man Singh v. State of Punjab 1973(1) S.L.R. 365 the petitioner was promoted as ASI by the Deputy Inspector General of Police, but he was dismissed by the Superintendent of Police a subordinate authority. It was held that the dismissal was not valid. Similarly, in State of Punjab v. Jagjit Singh 1996(2) S.L.R. 431 the plaintiff was confirmed as Assistant Sub-Inspector of Police by the Deputy Inspector General of Police and was promoted as Officiating Sub-Inspector by the Deputy Inspector General of Police. His order of dismissal passed by the Superintendent of Police, an authority lower in rank than the appointing authority was held to be illegal. Similarly in Dar-shan Singh v. State of Punjab 1991(2) SCT 714 (P&H) : 1991(4) S.L.R. 102 the petitioner was dismissed by Deputy Inspector General of Police though he was appointed by Inspector General of Police and it was held that the dismissal by subordinate authority is null and void, in view of the law laid down by the Privy Council in AIR 1949 112 (Privy Council) , In the present case also the plaintiff was promoted as Head Constable by the DIG of Police and as such his dismissal order by the Commandant who is lower in rank is therefore, null and void. The findings of the trial Court on issue No. I are, therefore, correct and are affirmed."

Hence not satisfied with the judgment and decree of the Courts below, the present appeal by the State of Punjab.

I have heard Shri A.G. Masih, Deputy Advocate General, Punjab on behalf of the appellants and Shri H.S. Gill, Senior Advocate on behalf of the respondent-plaintiff and with their assistance, have gone through the record of the case.

The learned Counsel for the appellants, submitted that as per rules, the appointing authority of the Head Constable is Superintendent of Police, equivalent to the post of Commandant, and in the present case the impugned order of dismissal has been passed by the Commandant, therefore, he is legally competent to pass the order of dismissal and there is no legality in the impugned judgments as observed by the Courts below.

On the contrary, the learned senior Counsel appearing for the respondent submitted that there is a canon of judgments on the point that when the order of promotion of Head Constable has been passed by the Inspector General of Police who is higher in rank than the Commandant, in that eventuality the punishment of dismissal from service can only be passed by the Inspector General of Police and not by the Commandant. In support of his contention, the learned Counsel has relied upon all the judgments which were taken note of by the first Appellate Court. He has also invited my attention to the order dated 16th July, 1990 in support of his contention.

I do not subscribe to the arguments raised by the learned Counsel for the appellants. In The Punjab State and another v. Sh. Kirpal Singh 1999(4) SCT 872 (P&H) : 1999(3)R.S.J.664. It was observed that there is a concurrent finding recorded by the Courts below holding that if the appointing authority of the respondent was Inspector General of Police, then the order of termination could only be passed by the same authority and if the order of termination has been passed by the Commandant who was lower in rank then the Inspector General of Police such an order cannot survive. It was further observed by his lordship in the concurrent findings of fact recorded by the Courts below the jurisdiction of the High Court to interfere is very limited and the High Court can only interfere in the concurrent view only if such view was illegal, unsustainable or findings recorded was palpably erroneous. The order dated 16th July, 1990 shows that Shri Sarabjit Singh then Inspector General of Police PAP Jalandhar Cantt. approved the name of the plaintiff-respondent to be brought on promotion list C-I w.e.f. 2.4.1990 and the plaintiffs name was approved for promotion to the rank of Officiating Head Constable w.e.f. 12th July, 1990. Further on promotion, he was posted in the 7th Bn. P.A.P. Jalandhar Cantt. For all intents and purposes the Inspector General of Police was the promoting authority of the plaintiff as Head Constable. In these circumstances, the order of dismissal could only be passed by the Inspector General of Police or equivalent authority thereto but in the present case the order has been passed by the Commandant equivalent to the rank of Senior Superintendent of Police. Therefore, I do not want to differ with the findings of the Courts below, rather the judgments and decree of the Courts below are hereby affirmed.

Seeing no merit, this appeal is hereby dismissed with no order as to costs.

Appeal dismissed.