State of Punjab and Another vs Ex-Constable Devinder Singh

Mahavir Singh Chauhan, J.—Respondent, who was serving as a Constable in the Punjab Police, was served with a charge-sheet on the allegation that he remained absent from duty for 80 days and 17 hours. After holding a departmental inquiry, a punishment of dismissal from service was awarded to him by the Superintendent of Police, Bathinda (appellant No. 2 herein). Respondent''s appeal against the order of dismissal was also dismissed by the appellate authority. Respondent challenged the order of dismissal as also the order of the appellate authority by way of Civil Suit No. 829 of 18.12.1987 on various grounds. The suit was resisted by the appellants by filing a written statement, wherein issuance of charge-sheet, award of penalty of dismissal from service and dismissal of appeal of the respondent were admitted and it was added that the respondent was afforded full opportunity to defend himself.

A replication was filed and from the pleadings of the parties following issues were framed by the Court of learned Sub Judge, 1st Class (A), Bathinda, (hereinafter referred to as ''the trial Court''):-

Whether the order dated 2.5.86 passed by S.S.P. Bathinda regarding dismissal of the plaintiff is illegal null and void, ineffective qua the rights of the plaintiff? OPP.

If issue No. 1 is proved in the affirmative whether the plaintiff is entitled to draw and receive all the arrears of allowances and other benefits under the rules? OPP.

Relief.

After conclusion of evidence of both the sides, learned trial Court appraised the evidence and pleadings in the light of submissions made at the bar, returned findings on both the issues hostile to the plea of the respondent and, vide judgment and decree dated 19.01.1991, dismissed the plaintiff-respondent''s suit leaving the parties to bear their own costs.

To challenge the judgment and decree dated 19.01.1991, plaintiff-respondent filed Civil Appeal No. 32 of 25.04.1991, which, after contest, was accepted, judgment and decree dated 19.01.1991 passed by the trial Court were set aside and respondent''s suit was decreed, vide judgment and decree dated 09.03.1994, leaving the parties to bear their own costs, by the Court of learned Additional District Judge, Bathinda (hereinafter referred to as ''the First Appellate Court'') granting liberty to the appellants to pass fresh order in accordance with law and rules.

The appellants, in stead of passing a fresh order in view of the liberty granted to them, have approached this Court by way of the instant Regular Second Appeal u/s 100 of the Code of Civil Procedure.

Respondent is contesting the appeal.

I have heard learned counsel for the parties and have perused the record carefully.

It is argued on behalf of the appellants that judgment and decree dated 09.03.1994 of the First Appellate Court cannot be allowed to sustain insofar as these have been passed without considering the fact that misconduct of the respondent has been proved in a departmental inquiry conducted strictly in accordance with law and provisions of Punjab Police Rules, 1934 and the respondent could not point out any procedural illegality or irregularity, in conduct of the departmental inquiry. The learned Additional Advocate General, Punjab, representing the appellants, also submits that the respondent, who was member of a disciplined force, absented himself from duty and, thus indulged in the gravest kind of misconduct and, as such, he deserved the extreme penalty of dismissal from service.

Per contra, on behalf of the respondent it has been argued that the appeal deserves dismissal, firstly, because no substantial question of law has either been formulated in the memorandum of appeal or placed on record during the pendency of the appeal, and, secondly, because the First Appellate Court set aside the order of dismissal on two counts, i.e., concession given on behalf of the appellants that the period of absence was treated as extra-ordinary leave; and past service record of the respondent was taken into consideration even though it was not part of the charge-sheet; and had granted liberty to the appellants to pass a fresh order in accordance with law and rules, but the appellants have elected not to pass any such fresh order which in itself is indicative of the fact that even the appellants are convinced that the charge against the respondent does not survive after the period of absence has been treated as extra-ordinary leave. In support of the contentions, learned counsel for the respondent has relied upon a Supreme Court judgment rendered in the case of The State of Punjab and Others Vs. Bakshish Singh, .

Nothing more has been urged on either side.

There is no dispute with regard to the fact that the respondent was proceeded against the departmentally on the allegation of having remained absent from duty for 80 days and 17 hours unauthorizedly. It is also beyond cavil that a member of a disciplined force as the Punjab Police, is, cannot be expected to absent from his official duty without sufficient cause and without previous permission of the competent authority. Nonetheless, the First Appellate Court has recorded a very categoric finding that it was conceded before it on behalf of the appellants that period of absence of the respondent was treated as extra-ordinary leave by the competent authority and that being so, the charge of absence from duty ceased to exist. During the course of hearing, the learned Additional Advocate General could not show anything to establish that either the concession to the aforesaid effect was not made on behalf of the appellants or it was made unauthorizedly or without the instructions of the authority concerned. That being the situation, the finding recorded by the First Appellate Court cannot be interfered with.

Another circumstance used by the First Appellate Court to upset the judgment and decree of the trial Court and the order of dismissal passed against the respondent is that the past service record of the respondent was taken into consideration even though it was not part of the charge-sheet served upon him. This aspect could not be disputed by the counsel appearing on behalf of the appellants during the course of hearing. It is needless to state that to use past record of the respondent against him, it was incumbent upon the competent punishing authority to make that record part of the charge-sheet so as to enable the respondent to put forward his explanation/defence qua the same and by not making the past service record as a part of the charge-sheet and basing the order of punishment upon it, the competent punishing authority has violated the well recognized cannons of natural justice, which require that nobody can be condemned unheard.

It is not that the First Appellate Court set aside the order of punishment and shut the doors upon the appellants to rectify the mistake/irregularity. In fact, a liberty was granted to the appellants to pass a fresh order, in accordance with law, but for reasons best known to the appellants, they did not opt for rectification of the mistake and to pass a fresh order, as per procedure known to law.

Be that as it may, the findings recorded by the First Appellate Court are pure findings of fact and as pointed out by the learned counsel for the respondent, no substantial question of law has been shown to be involved in he appeal and for that reason also the appeal is bound to fail. In the consequence, the appeal fails and is, hereby, dismissed with costs.