State of Punjab vs Sukhwinder Singh

This Judgment has been overruled by : State of Punjab and Others Vs. Sukhwinder Singh, AIR 2005 SC 2960 : (2005) 6 JT 170 : (2005) 141 PLR 402 : (2005) 5 SCC 569 : (2005) SCC(L&S) 705 : (2005) 2 SCR 580 Supp : (2005) 3 SLJ 186 : (2005) AIRSCW 3477 : (2005) 5 Supreme 68

M.L. Singhal, J.—Sukhwinder Singh joined service of the Punjab Police as constable inAugust, 1989. His constabulary No. was 644/ASR. He was under going training in P.R.T.C. Jahan Khelan where he fell ill. He went for treatment. During the period he was away on treatment, he was marked absent. He was marked absent from duty on 22.2.1990 when he was under treatment. Senior Superintendent of Police, Amritsar vide order dated 16.3.1990 discharged him from service under rule 12.21 of the Punjab Police Rules. No enquiry was held before he was discharged from service. In fact, it was not discharge simpliciter from service. It was dismissal from service by way of punishment for mis-conduct namely absence from duty. There should have been enquiry into this misconduct. Had he put in more than 3 years of service and absented from duty, there would have been regular enquiry under Rule 16.24 of the Punjab Police Rules. In the order dated 16.3.1990 the word "discharge" was used instead the word "dismissal" through basis for this action was his misconduct namely absence from duty. On these allegations, he filed suit for declaration to the effect that order dated 16.3.1990 of SSP, Amritsar discharging him from service with effect from 16.3.1990 was wrong, illegal, mala fide, cryptic, capricious, without jurisdiction, passed by way of punishment, viola-tive of the Punjab Police Rules and the provisions of the Conslitution of India and was thus non-est, inoperative and further that plaintiff continued to be on the job of constable on the rolls of District Police, Amritsar with all emoluments admissible to the post of constable as if the said order had never been passed at all. It was alleged in the plaint that rule 12.21 of the Punjab Police Rules was brought into play to ease him out of service summarily. On the face of it, it was an innocuous order but in essence it was an order passed by way of punishment for misconduct without affording him the protect ion of Article 311 of the Constitution of India and Rule 16.24 of the Punjab Police Rules.

State of Punjab contested the suit of the plaintiff, urging that he was a probationer. During the period of probation, he could be discharged from service if SPP felt that he was unlikely to prove an efficient police officer. Rule 16.24 is applicable to permanent police officials. He was not entitled to the protection of Rule 16.24 and Article 311 of the Constitution of India as he was on probation.

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

Whether the suit is bad for non-joinder of necessary parties ? OPD

2- Whether the suit is not maintainable in the present from ? OPD

3- Whether the order dated 16.3.1990 is illegal, void and inoperative against the rights of the plaintiff? OPP

4- Whether the plaintiff is entitled to the declaration and consequential relief prayed for ? OPP

5- Relief.

Vide Order dated 5.5.1993, Subordinate Judge Ist Class, Amritsar decreed the plaintiffs suit for declaration to the effect that order dated 16.3.1990 whereby he was discharged from service was illegal, null and void, without jurisdiction and was not binding on him and he continued to be in the service of the Punjab Police, and was entitled to the emoluments and other benefits admissible as if the said order had never been passed in view of his finding that there should have been enquiry under Rule 16.24 of the Punjab Rules, as absence from duty was viewed as "misconduct" by SSP, Amritsar when he discharged him from service. His discharge from service was not discharge simplicitor but was in fact dismissal from service inflicted upon him by way of punishment for misconduct namely absence from duty.

Aggrieved, State of Punjab went in appeal, which was dismissed by Additional District Judge, Amritsar vide order dated 28.5.1994.

State of Punjab has come up in further appeal to this Court.

In this case, plaintiff absented from duty. It was his absence from duty which led SSP to pass order dated 16.3.1990 which reads as follows:

"Constable Sukhwinder Singh No. 644/ASR of this District is discharged from service w.e.f. 16.3.1990 under Punjab Police Rule 12.21 as he is not likely be become an efficient police officer."

In para 2 of the written statement, it has been admitted that he (Sukhwinder Singh) was detailed !o undergo initial recruit course at Police Recruits Training Center Jahan Khelan, Distt. Hoshiarpur in Batch No. 158 where he absented himself on 25.2.1990 without any leave or permission from the competent authority and did not return till the date of discharge i.e. 16.3.1990.

It was thus admitted that the foundation for the order whereby he was discharged from service was his absentee from duty. Absence from duty is certainly a misconduct. In para 3 of the written statement, State of Punjab has submitted that he was habitual absentee during his short period of service. That means, it was his absence from duty that weighed in the mind of SSP, Amritsar when he showed him the door. Absence from duly is mis-conduct and was viewed as misconduct by SSP, Amritsar otherwise what could there be against him in the mind of SSP, Amritsar, for discharging him from service saying that he was unlikely to prove an efficient police officer. There is a catena of authorities which have laid down that where there is direct nexus between the charge levelled and action taken, the order will be punitive in nature as envisaged by Rule 12.21 of Punjab Police Rules, 1934. In this case there is direct nexus between the order of discharge of constable Sukhwinder Singh from service and his absence from duty and therefore order discharging him from service will be viewed as punitive in nature calling for a regular enquiry under Rule 16.24 of Punjab Police Rules, 1934.

It was held in Surinder Singh v. Slate of Haryana and others, 1994(1) SCT 286 that SSP can discharge a constable at any time within three years of his enrolment, if he comes to the conclusion that he is unlikely to prove an efficient police officer. The discretion is unfettered. The decision to discharge a police constable from service has to be arrived at on the basis of the material available on record. The decision has to be arrived at on the objective analysis of the service record of the concerned police official. If no material is available on the record to form an opinion under Rule 12.21 of the Police Rules, the order of discharge can be quashed on the ground that the decision is arrived at without any basis. The Court can direct the Superintendent of Police to disclose the material on the basis of which he formed an opinion that a particular police officer was not likely to prove an efficient police officer. If the material is found be irrelevant for the purpose of forming the opinion under Rule 12.21 of the Punjab Police Rules, the Court may not sustain the order on the ground that irrelevant matter was taken into consideration while passing the order. The form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the services may, in the facts and circumstances of the case, establish that it was passed in infraction of the provisions of Article 311(2) of the Constitution. The Court can lift the veil to find out the real purpose of the order. If the competent authority decides to discharge the police official on the ground of unsultability under the relevant service rules and the action is not punitive, it is not obligatory to hold a formal inquiry by framing charges and giving opportunity to the Government servant in accordance with the provisions of Article 311 of the Constitution or the service rules.

If there is nexus between the charge levelled and the action taken, the order will be punitive in nature as envisaged in Rule 12.21 of Punjab Police Rules.

In Annop Jaiswal v. Government of India, 1984(1) SLR 426 the Hon''ble Supreme Court observed as follows:

"In this case service of the appellant had been terminated during the period of probation. On the materials on record, it is found by this Court that the order of termination really amounted to punishment because the real foundation of the action against the appellant was the act of misconduct on June 22, 1981."

In Hardeep Singh v. State of Haryana, 1987(4) SLR 576, the facts in brief were that the petitioner was a member of an unregistered Haryana Police Association. The said association had been canvassing for improvement in the service conditions of the Police. A call was given by the association to all its members to participate in a "non-taking of food campaign" which was to take place on 15 August, 1982. 16000 police personnel attended to their duties, but they did not make their food in the Mess. The protest was peaceful, but the State of Haryana issued order of dismissal/removal against 425 policemen under Rule 12.21 of the Punjab Rules. About 154 of such policemen challenged the order of dismissal/discharge from service in writ petitions before the Apex Court. The Apex Court on the material placed on record came to the conclusion that the impugned order cast a stigma on the service career of the petitioner and the order was made by way of punishment. It will be relevant to re-produce the observations made in para 9 of the judgment of the Apex Court:

"There is no doubt that the impugned order casts a stigma on the service career of the petitioner and the order being made by way of punishment, the petitioner is entitled to the protection afforded by the provisions of Article 311(2) of the Constitution as well as by the provisions of Rule 16.24 (IX)(b) of the Punjab Police Rules, 1934. The petitioner has not been served with any charges of misconduct in discharging of his duties as a police constable nor has he ever been asked to show cause against the said charges. The order of removal from service was made because of his union of activities namely participating in the call for expressing the protest of the association for improvement in service conditions by abstaining from taking meals in the Mess on 15th August, 1982 although the petitioner like other members of the association performed his duties on that day and did not abstain from duty. It cannot be said in the facts and circumstances of the case that the impugned order is an order simpliciter of removal from service of the probationer in accordance with the terms and conditions of the service. The impugned order undoubtedly, tantamounts to dismissal from service by reason of misconduct of the petitioner in discharge of the official duties as police constable."

In Hardeep Singh''s case (supra) the following conclusion was reached in para 5 of the judgment:-

"Without going into the merits of the facts whether the petitioner had absented himself unauthorizediy or was in fact under medical treatment and what is the evidentiary value of letters Annexures P-3 and P-4,. I am of the view that the impugned order, though couched in simple language is in fact by way of punishment as the whole basis is the misconduct of the petitioner of having absented unauthorizedly during the training course. Admittedly, no enquiry was held prior to passing the order of discharge."

It is, thus, clear that if the impugned order of discharge in essence was not an order of discharge simpliciter but an order of dismissal passed by way of punishment for misconduct, order of discharge cannot be sustained.

In State of Haryana and another v. Jagdish Chander, 1995 SCC 567 : 1995(2) SCT 427 (SC) the Hon''ble Supreme Court held that the findings of habitual absence and indiscipline necessarily cast a stigma on his career and they would be an impediment for any future employment elsewhere. Under those circumstances, the principles of natural justice do require that he should be given an opportunity to explain the grounds on which the SP proposes to pass an order of discharge and then to consider the explanation submitted by the police officer. Then the SP is competent to pass appropriate orders according to the rules. Since this part of the procedure had not been adapted, the order of discharge is vitiated.

In Rajinder Kaur v. Punjab State and another, AIR 1986 SC 1970 , the Hon''ble Supreme Court observed that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order in giving effect to the rights conferred by law upon the employee.

In Chandra Prakash Shani v. State of UP and others, 2000 SCC 152 : 2000(2) SCT 946 (SC), the Hon''ble Supreme Court held that Court can lift the veil to determine the character of termination.

It is thus clear that constable Sukhwinder Singh was thrown out of job on the ground of absence from duty. Absence from duty is a misconduct. Loss of job was inflicted upon him which was punishment for absence from duty and therefore there should have been an enquiry as envisaged in Rule 16.24 (IX)B, of the Punjab Police Rules, 1934 and as such it cannot be sustained.

For the reasons given above, this appeal fails and is dismissed. No order as to costs.

Appeal dismissed.