Punjab State vs Surinder Singh

Raj Mohan Singh, J. - State of Punjab and its functionaries have ventured to file this Regular Second Appeal against the judgment and decree dated 15.02.2002 vide which judgment and decree dated 19.04.2001 passed by Civil Judge (Junior Division), Amritsar was upheld.

Plaintiff filed suit for declaration to the effect that the order dated 01.02.1994 passed by defendant No.2, discharging the plaintiff from service and the order of the Appellate Authority dated 24.02.1995 dismissing the appeal of the plaintiff were illegal, unconstitutional and bad in the eyes of law.

Plaintiff sought consequential relief of reinstating his service from the date of passing of the order of discharge. Plaintiff was appointed as Constable. He alleged that he was proceeded departmentally on the allegations of absence from service w.e.f. 31.07.1994 to 23.09.1994. Plaintiff averred that he was granted leave by the defendant No.2 and had gone to his village where he fell ill. This fact was brought to the knowledge of the authority vide a telegram dated 18.08.1994. Plaintiff was asked to file his explanation but no inquiry was held on the defence of the plaintiff and the inquiry got conducted was in violation of rules of natural justice and Rule 16.24 of Punjab Police Rules as the plaintiff was never supplied any documents 2 of 11 relied upon by the department nor he was supplied any list of witnesses and the charge-sheet. The order passed by the competent authority under Rule 12.21 of Punjab Police Rules was alleged to be illegal and the order passed by the Appellate Authority was also the result of non-application of mind.

The suit was contested by the defendants/appellants. Rule 12.21 of Punjab Police Rules was pressed into service for discharging the services of the plaintiff because during probation, it was found that he was unlikely to become an efficient police officer. It was averred by the defendants that leave was sanctioned for 20 days from 07.12.1993 to 26.12.1993 and thereafter many warnings were issued to the plaintiff regarding his absence but he persisted on his absence from 31.07.1994 to 23.09.1994 without any leave and permission from the competent authority.

Parties went to trial on following issues:-

"1. Whether the impugned orders are illegal and void? OPP.

Whether the suit is not maintainable? OPD.

Whether the notice under Section 80 CPC is not legal and valid? OPD.

Relief.

Both the parties led evidence. Trial Court decreed the suit of the plaintiff on the ground that order of discharge was stagmatic in nature and therefore, opportunity was required to be given to the plaintiff to prove his case. Since no Show Cause Notice was given to the plaintiff, therefore the order passed under Rule 12.21 of Punjab Police Rules was declared to be illegal, void and ineffective. The defendants State went in appeal against the judgment and decree dated 19.04.2001 passed by Civil Judge (Jr. Divn), Amritsar which was dismissed by Additional District Judge, Amritsar. That is, how, the present appeal came to be filed before this Court.

The defence set up by the defendants/appellants was that the plaintiff was not working diligently. His service record was not good. Plaintiff was a habitual absentee from service. After taking into consideration the past record of the plaintiff, he was discharged from service after forming an opinion by the competent authority that the plaintiff was unlikely to become an efficient police officer in terms of Rule 12.21 of Punjab Police Rules.

No substantial question of law has been formulated in the appeal. In view of Full Bench judgment of this Court in Ganpat v. Smt. Ram Devi and others 1977, PLR page I, framing of question of law was having no effect on the maintainability of the appeal. However, in view of amendment of Section 100 CPC, framing of substantial question of law is sine qua non for maintaining regular second appeal in this Court. Prior to amendment, the appeal could have been filed on the ground set out in clauses (a) to (c) of Section 100(1) CPC. Now second appeal requires substantial question of law to be framed. The interference cannot be made only because the order is contrary to law, but when the disputed issues raised a substantial question of law. Limiting such a power in the Appellate Authority is based on public policy having roots in the maxim "interest reipublicae ut sit finis litium."

Keeping in view the change of interpretation given by different courts to Rule 12.21 of the Rules from time to time, this Court considered it appropriate to formulate following substantial questions of law:-

Whether the order of discharge though couched in innocuous terms was punitive in nature?

Whether services of probationer can be terminated/discharged without adverting to any instances of mis-conduct? Whether order of discharge is the result of misconduct, inefficiency or absence from duty?

The controversy involved in the present appeal is revolving around the interpretation of Rule 12.21 of Punjab Police Rules. The interpretation has gone spontaneous changes from time to time. The interpretation of the Rule as it stood earlier has undergone sea changes as on date. No abstract proposition of law can be drawn where the services of a probationer are terminated without saying anything more in the order except that services are terminated as the incumbent is not going to be proved an efficient police officer. Such type of order is totally innocuous.

The question arises, if the probationer is discharged on the ground of mis-conduct or inefficiency or for similar reasons without holding inquiry or without affording opportunity of hearing to the delinquent then such order of removal falls under the category of Article 311 (2) of the Constitution of India. The view propounded in P.L. Dhingra v. Union of India, (1958) SCR 828, K.H. Phadnis v. State of Maharashtra, (1971) SCR (Supp.) 118, State of Bihar & Ors. v. Shiva Bhikshuk Mishra, (1971) 2 SCR 191, Shamsher Singh & Anr. v. State of Punjab, (1975) 1 SCR 814, Anoop Jaiswal v. Government of India, (1984) 2 SCC 369 and Smt. Rajinder Kaur v. Punjab State and another, 1986 AIR (SC) 1790 was that if the order of discharge even though couched in innocuous terms but if the same was merely a camouflage for an order of dismissal from service on the ground of mis-conduct, then the Court was held entitled to unveil the curtain in order to know the true character of the order. If the order was merely determination of employment was in fact a cloak for an order of punishment, then Court was held competent to interfere.

In Sher Singh v. State of Haryana, 1994(1) PLR 456, Full Bench Judgment of this Court held that the Competent Authority can discharge a Constable from service at any time within three years of his entry into service, even on specific allegations of mis-conduct. Even a single act of misbehavior with public or absence from duty can lead to his discharge from service. It was held that even a single act of indiscipline can lead the competent authority to conclude that the constable is unlikely to prove an efficient police officer.

In Sher Singh''s case (supra), it was further held that it is not only on the basis of periodical reports of the employee, but the opinion of the competent authority if based on any other material, the same was appropriate enough to order discharge of the employee. It was also held that the employee has no right to the post when the competent authority forms an opinion that his continuation in service is not in public interest on account of his unsuitability, mis-conduct or inefficiency. Termination of his services in terms of his appointment cannot be termed to be punitive in nature.

The dictum laid down by Full Bench in Sher Singh''s case (supra) was upheld by the Hon''ble Apex Court in State of Punjab and others v. Sukhwinder Singh 2005 AIR (SC) 2960 and State of Punjab v. Rajesh Kumar 2007 (1) SCT 459.

The view laid down in Smt. Rajinder Kaur''s case (supra) was overruled and the view taken by Full Bench of this Court in Sher Singh''s case (supra) was upheld as the same was found in consonance with the decision rendered by the Hon''ble Apex Court in Superintendent of Police, Ludhiana v. Dwarka Das 1979(1) SCR 299.

In State of Punjab and Ors. v. Constable Avtar Singh (dead) through Lrs. 2009(1) SCT 381, unauthorized absence from duty was considered by the Hon''ble Apex Court vis-a-vis the interpretation of Rule 12.21 of Punjab Police Rules. The Hon''ble Apex Court held that the absence from duty without prior permission is a grave mis-conduct and there was no necessity of holding any formal inquiry for discharging the employee as the order of discharge was neither stagmatic nor of any evil consequences to the employee. The order of discharge was held proper and the view in Sukhwinder Singh''s case (supra) was reiterated.

The controversy involved in this case is no longer res integra in view of State of Punjab v. Sukhwinder Singh, 2005 AIR (SC) 2960 which was subsequently reiterated in State of Punjab v. Rajesh Kumar 2007 (1) SCT 459. In view of proposition highlighted in different precedents, both the question as formulated in earlier part of the judgment have to be answered in favour of the appellants.

In the light of aforesaid facts, unauthorized absence of the plaintiff was sufficient to order his discharge from service and the said order was neither punitive in nature nor stagmatic as it was a simpliciter order of discharge recorded in innocuous terms.

In the light of legal position as mentioned above, this appeal is required to be accepted. Resultantly, impugned judgments and decrees passed by the Courts below are hereby set aside and appeal is allowed, dismissing the suit of the plaintiff. However, both the parties are left to bear their own costs.