State of Punjab vs Dasondha Singh

M.L. Singhal, J.—Shri Dasondha Singh joined the Punjab Police on 14.10.1991. He was given constabulary No. 2606/Jull. He was undergoing basic training course in R.T.C. Jahan Khelan in March, 1992. On 1.3.1992, he fell ill. His father was informed by the Incharge Training Centre, Jahan Khelan that he was lying ill. His father reached the Training Centre and found him lying unconscious. With the permission of the Incharge Training Centre, he took him to his village. Upto 29.4.1992, he remained under treatment of the various Doctors and then reported back for duty. He was treated as absent from duty with effect from 1.3.1992 to 29.4.1992. Superintendent of Police, Jalandhar issued show cause notice calling upon him to show cause as to why he be not discharged from service under Rule 12.21 of Punjab Police Rules (hereinafter to be referred as ''the Rules'') on account of absence from duty. He was discharged from service vide order dated 16.7.1992 by the Senior Superintendent of Police, Jalandhar. He filed suit for declaration whereby he challenged order dated 16.7.1992 of Senior Superintendent of Police, Jalandhar discharging him from service. It was alleged in the plaint that he could not have been discharged from service summarily when the allegation against him was that of absence from duty. Absence from duty is a mis-conduct. There should have been an enquiry according to the procedure laid down in Rule 16.24 of the Rules. He should have been given an opportunity of defending himself against the allegation of mis-conduct. No enquiry was held into the charge of absence from duty. Order discharging him from service was astigmatic in character and, therefore, there should have been an enquiry so that at that enquiry, he could prove his innocence. He should have been given opportunity of personal hearing before discharging him from service. Mere fad that he was absent from duty for a few days could give no indication that he could not be an efficient police official. He prayed that the impugned order dated 16.7.1992 be declared as illegal, void, unlawful and unconstitutional, inoperative, ineffective and as such not binding on him and further that he continues to be in the service of the State of Punjab with salary, allowances etc. as if he was never discharged from service.

Defendant-State of Punjab contested the suit of the plaintiff urging that he was on probation. During the period of probation he could be discharged under Rule 12.21 of the Rules. No enquiry was required to have been made before the discharging him from service. His work and conduct was not satisfactory. He did not take any interest in the basic training. His reply to the show cause notice was considered. His entire service record was also considered. On the perusal of his reply to the show cause notice and his service record, Senior Superintendent of Police, Jalandhar concluded that he was unlikely to become a good police officer. Opportunity of personal hearing was given to him, but he did not avail that opportunity.

On the pleadings of the parties, the following issues were framed by the learned trial Court :-

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

2) Whether the case is pre-mature ? OPD.

3) Whether legal and valid notice u/s 80 CPC was given by the plaintiff ? OPD.

4) Whether no cause of action accrued to the plaintiff ?OPD.

5) Relief.

Vide order dated 16.1.1996 Civil Judge (Junior Division), Jalandhar dismissed the plaintiffs suit in view of his findings that the impugned order removing him from service passed by Senior Superintendent of Police, Jalandhar was quite legal, valid and proper and was in conformity to the Rules.

Not satisfied with the order of Civil Judge (Junior Division), Jalandhar, plaintiff Dasondha Singh filed appeal which was allowed by Additional District Judge, Jalandhar vide order dated 2.11.1999 and he decreed the plaintiffs suit for declaration as prayed. Not satisfied with the order of Additional District Judge, Jalandhar, State of Punjab has come up in appeal to this Court.

I have heard the learned Deputy Advocate General, Punjab and have gone through the record.

Respondent was discharged from service because of absence from duty. Impugned order where through he was discharged from service by Senior Superintendent of Police, Jalandhar reads as follows:-

"Constable Dasondha Singh No. 2306/Jall. while obtaining initial training in P.R.T.C. Jahan Khelan in Batch No. 182 absented himself without leave and permission from the training centre on 1.3.1992 and is coming absent since then. So, he was served with a show cause notice vide office letter No. 21671 dated 26.3.1992 under Rule 12.21 of Punjab Police Rules as to why he be not discharged front the service. He submitted his reply and on the next date he was called and was given personal hearing and his reply was not found to be satisfactory. So, he is discharged from service under Rule 12.21 of the Punjab Police Rules and the period of his absence from 1.3.1992 till today is sanctioned without pay".

Learned Deputy Advocate General, Punjab has submitted that the respondent was on probation. He joined the service only on 14.10.1991 and became absent from duty on 1.3.1992 and continued to be absent from duty upto 29.4.1992. It was submitted that he could be discharged from service by the Senior Superintendent of Police, Jalandhar when he was still on probation. He was on trial during the period of proba- lion. Senior Superintendent of Police, Jalandhar found that he was unlikely to prove an efficient police officer and, therefore, he discharged him summarily. In my opinion, the argument advanced by the learned State counsel is fallacious. Impugned order attaches stigma to the respondent in as much as it says that he absented himself without leave and permission from the Training Centre on 1.3.1992 and is continuing to be absent since then. Impugned order thus attaches stigma to him in as much as it shows that the while discharging him from service his absence from duty alone was taken into account. It would have been a different matter if Senior Superintendent of Police had passed a simple order discharging him from service saying that he was unlikely to prove an efficient police officer. His absence from duty is the foundation of the impugned order as absence from duly is a mis-conduct. In Anil Kumar v. State of Haryana 1997(7) S.L.R. 519 : 2000(3) SCT289 (P&H)(DB), where Constable Sunil Kumar had been discharged from service because of absence from duty for ten days and 18 hours, it was held that the order could not have been passed without any enquiry. In Ex- Constable Ram Niwas v. State of Haryana 1999(1) S.L.R. 463 : 1999(1) SCT 227 (P&H), Constable Ram Niwas was discharged on the ground that he was habitual and a wilfully absentee from duly without leave and he was unlikely to prove an efficient police officer. No charge-sheet was served upon him nor any explanation was called nor any opportunity was given to him nor any enquiry was held. It was held that in these circumstances the order of discharge could not be sustained. Since absence from duty is a mis-conduct and respondent was discharged on the ground of absence from duty, order discharging him from service attaches stigma, there should have been an enquiry in accordance with the procedure as laid down in Rule 16.24 of the Rules.

No exception could be taken to the impugned order if it was a simple order of discharge without anything more. It is not a simple order of discharge. It goes further and says that he is discharged from service under Rule 12.21 of the Punjab Police Rules on account of absence from duty with effect from 1.3.1992 upto 25.4.1992. Impugned order is penal in character in as much as if he applies for a job afresh under the Government, no wonder, the appointing authority refuses him the job feeling that he is irresponsible and absents from duty.

For the reasons given above, this appeal fails and is dismissed.

Appeal dismissed.