State of Punjab vs Devinder Pal

M.L. Singhal, J.—One Devinder Pal was Constable in 75th Battalion of the Punjab Armed Police (P.A.P.) since 10.10.1990. He was inducted as full fledged Constable after he had successfully completed recruits'' course from the Regional Training Centre, P.A.P. Jullundar Cahtt. Vide Daily Diary Report No. 16 dated 13.7.1993 reported at 3.30 P.M., he was deputed to R.T.B.P. Academy, Mussourie for undergoing Karate course. On account of heavy rains and floods, there was disruption in train services. He reached R.T.B.P. Academy, Mussourie on 1.8.1993. He was not allowed to join the Karate course, which had already started on 12.7.1993. On his way back from Mussourie, he fell ill and he went straight to his village for treatment. He applied for leave on medical ground. Orders passed on his application were never conveyed to him. He was treated as absent from duty from 13.7.1993 to 18.11.1993 and was ordered to be tried departmentally. Shri Mohan Singh Parmar, Deputy Superintendent of Police conducted the enquiry against him which was in contravention of the provisions of law, service rules and principles of natural justice. He was placed under suspension with effect from 11.3.1994. Enquiry Officer returned a finding of guilt against the plaintiff. He was dismissed from service vide order dated 21.4.1994 passed by Commandant 75th Battalion of P.A.P. Jullundar Cantt. 128 days'' period during which he allegedly remained absent, was ordered to be treated as non-duty period and copy of the order dated 21.4.1994 was never supplied to him. On these allegations, Devinder Pal filed suit for declaration against the State of Punjab whereby he challenged order dated 21.4.1994, dismissing him from service and also ordering 128 days'' period as non-duty period.

It was prayed that he is entitled to all rights, privileges and other service benefits attached to the post as if he was never dismissed from service. He also prayed for the grant of mandatory injunction directing the State of Punjab to reinstate him with all consequential benefits.

Defendant-State of Punjab, contested the suit of the plaintiff. It was stated that the suit was not maintainable. He ought to have gone in appeal, revision/mercy petition before the Deputy Inspector General of Police, P.A.P., Jalandhar Cantt., Additional Inspector General of Police, P.A.P., Jalandhar Cantt. and Director General of Police, Punjab, Chandigarh, under Punjab Police Rule 16.29. It was stated that his work and conduct was not satisfactory. He was a wilful absentee. During the short tenure of his service, he was awarded 7 punishments. He was deputed to Karate course at R.T.B.P. Academy at Mussourie vide DDR No. 15 dated 13.7.1993, but he did not report at Mussourie. He reported back after remaining absent from 127 days, 18 hours and 30 minutes vide DDR No. 7 dated 18.11.1993. Departmental enquiry was conducted into his misconduct and he was found guilty of this misconduct. For this misconduct, he was dismissed from service.

On the pleadings of the parties, the following issues were framed :-

" 1. Whether the order dated 21.4.94 is illegal, null and void ? OPP.

Whether the notice served upon the defendant is not legal and is void ? OPP

Whether this suit is not maintainable ? OPD

Whether the plaintiff was required to exhaust all the channels before filing of the present suit ? OPD, if so, its effect?

Whether the plaintiff is entitled for declaration as prayed for ? OPD

Whether the plaintiff is entitled for mandatory injunction as prayed for ? OPD.

Relief-Vide order dated 11.6.1997, Civil Judge (Junior Division), Jalandhar dismissed the plaintiffs suit in view of his findings on issues No. 1, 5 and 6. It was found that he was highly incorrigible and retention of such a person in the disciplined force like the police is likely to prove more harmful as it will convey message to the other incumbents that despite such major lapse, they can remain in service. It was found to be the gravest act of misconduct on his part for which dismissal was the only punishment which could meet the ends of justice. Enquiry conducted was in tune with law and procedure governing such enquiries.

Devinder Pal, plaintiff, went in appeal. Vide order dated 16.2.1999 Additional District Judge, Jalandhar, allowed the appeal, set aside the judgment and decree of the learned trial Court and decreed the plaintiff''s suit for declaration/mandatory injunction.

State of Punjab has come up in appeal to this Court against the judgment and decree of the 1st Appellate Court dated 16.2.1999.

I have heard the learned counsel for the parties and have gone through the record.

In my opinion the finding of learned Additional District Judge, Jalandhar, that he was not given reasonable opportunity of defending himself in the enquiry, is correct. Summary of allegations was served on him on 10.12.1993. Evidence was recorded in the enquiry on 10.12.1993. Evidence in the enquiry against the plaintiff was, thus, recorded on the same day when the summary of allegation was served on him. Enquiry Officer should have adjourned the enquiry to some other day so that, in the meanwhile, he could prepare himself for cross-examination. He was, thus, handicapped in cross-examining the witnesses. In State of Punjab v. Kirpal Singh 1958 P&H 26, it was held that it is required that a reasonable period should elapse between the delivery of charges and the commencement of the enquiry, the intention being that the officer concerned should have adequate notice of the purpose and scope of the intended investigation. When only few hours'' notice is given, it must be held to be insufficient, though a few days are generally enough. Plaintiff was not given opportunity to lead defence evidence. He gave application for summoning the defence witnesses. Enquiry Officer declined the request of the plaintiff and asked to plaintiff to produce his witnesses himself. Enquiry report shows that the plaintiff brought a witness, but his statement was not recorded by the Enquiry Officer saying that his name did not find mention in the list of witnesses. Enquiry Officer should have recorded the statement of that witness whom the delinquent had brought with him. There was, thus, failure of justice to the delinquent so far as the conduct of enquiry is concerned.

So far as the punishments awarded to the plaintiff, previously, are concerned, they would not have been taken into account when they had not been set out in the charge-sheet/show cause notice. Previous punishments could have been taken into account, if the delinquent had been given notice thereof so that he could explain them away.

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

Appeal dismissed