Surjit Singh vs State of Punjab and Others

A.N. Jindal, J.

C.M. No. 1203-C of 2013

CM is allowed. Affidavit of Paramjit Singh Gill, IPS, Inspector General of Police, Zonal-1, Punjab, Patiala, is taken on record.

R.S.A. No. 2671 of 2010 The prime question to be determined in this case is, "whether the order of dismissal dated 28.5.2002, passed by the Senior Superintendent of Police, Sangrur, was stigmatic and in violation of Article 311 of the Constitution of India?"

The appellant, a special police official, having been worked since, 1994, was dismissed from service, without holding any enquiry, vide order dated 28.5.2002, the translation of which is reproduced as under:-

Deputy Superintendent of Police, Sub Division, Sangrur, reported vide letter NO. 1067/5A/DSR dated 24.5.2002, to the effect that on 12.5.2002, there was an accident of the scooter of Gurmail Singh son of Inder Singh, Mason, resident of village Mimsa accompanied by Nirmal Singh, in between Kunran and Balwar. There were Rs. 1,08,000/- in the diekeyy of the scooter, which have been misappropriated by SPO Surjit Singh No. LO/710 and SPO Santokh Singh No. LO/118, who were on duty at that time, on account of which, the police department had to suffer a great loss to the reputation. Therefore, SPO Surjit Singh No. LO/710 and SPO Santokh Singh No. LO/118, Sangrur are discharged from SPO duty. The order be registered.

SSP, Sangrur

The said order was challenged in appeal, whereby Deputy Inspector General of Police, Patiala Range dismissed the same. Similarly, the Director General of Police also did not decide in his favour on 16.5.2003.

The plaintiff-appellant Surjit Singh (herein referred as, "the plaintiff"), pleaded that he has been serving regularly and honestly and he did not commit any such offence. Though the plaintiff and the other two police officials, as referred to above, were removed from service by the defendant No. 4, vide order dated 28.5.2002, yet he was not at fault. On the relevant date i.e. 12.5.2002, the plaintiff was on Santri duty from 6.00 p.m. to 10.00 p.m. The in-charge of the Guard, C-1 Harchetan Singh sent the plaintiff from guard duty replacing Santri Zora Singh No. 1509 with driver Santokh Singh along with ambulance van to the place of accident which took place near village Barber. A scooter was lying near the injured. C-1 Harchetan Singh opened the dickey of the scooter to know about the whereabouts of the person and also to know their addresses and C-1 Harchetan Singh had taken away the money, whereas, the plaintiff had taken away the injured person to the hospital with the help of the, other police official. On the next morning, Jaggar Singh alias Ujjagar Singh, a close relative of injured Gurmail Singh along with Jagdev Singh and Labh Singh resident of village Kunran came to the police and asked the in-charge Guard C-1 Harchetan Singh about the money but he did not disclose. Thereafter an enquiry was held, whereupon C-1 Harchetan Singh had deposited the said amount. Ultimately, Harchetan Singh was dismissed from service. But, later on his punishment was reduced to penalty of stoppage of increments and SPO Santokh Singh was not awarded any penalty.

Upon notice, the defendants contested the case by filing written statement while pleading that the plaintiff was posted as SPO, being daily wager employee, no enquiry was required to remove him from service. The plaintiff along with Santokh Singh and Harchetan Singh had committed this offence, therefore, they were rightly removed from service. It was admitted that the plaintiff was appointed as SPO on 28.7.1994. However, it was stated that the plaintiff was not governed by the Punjab Police Rules.

Replication was filed and from the pleadings of the parties, the following issues were framed:-

Whether the plainti is entitled to declaration, as prayed for? OPP

Whether plainti has got no cause of action to file the present suit?OPD

Whether plainti was found guilty by the defendants for misconduct? If so, its effect?OPD

Whether order of discharge of plainti is legal, valid and just?OPD

Relief.

Both the courts decided against the plaintiff. Arguments heard. Record perused.

The undisputed facts are that the appellant was appointed as SPO on the basis of 89 days on 28.7.1994 and he continued on the post till the year 2002. There was no other enquiry regarding the conduct of the plaintiff prior to the year 2002. No enquiry as envisaged under Article 311(2) of the Constitution of India was held before passing the order of dismissal Ex. P2 as referred to above. It also cannot be doubted that the order of removing him from service is stigmatized order as directly attack to his act, conduct and reputation. The State has also not denied that the amount was taken away by C-1 Harchetan Singh and he had paid the said amount of Rs. 1,08,000/- to Labh Singh and Jaggar @ Ujjagar Singh, in two installments of Rs. 66,000/- and Rs. 42,000/-. Initially, C-1 Harchetan Singh was dismissed from service. The order Ex. P5 also indicates that C-1 Harchetan Singh was negligent but a lenient view had been taken later on. The punishment awarded to him was reduced to stoppage of the increments.

Now the question arises, "whether the SPO, who had completed unblemished service for eight years, could be removed from service in violation of the Clause 9 of the standing order, without holding a regular enquiry?"

A similar question arose before the Division Bench of this Court in case Raj Kumar v. State of Punjab 1999 (3) S.C.T. 91 wherein it was observed as under:-

A perusal of the above provision shows that an officer whose work and conduct are not found to be satisfactory can be discharged by the Superintendent of Police without the issue of any notice. This power is, undoubtedly, available to the respondents. However, in the present case a perusal of the impugned orders show that the petitioners were accused of having teased a lady. It was observed that they had used vulgar and condemnable language. It has been further observed that the petitioners are not "fit for working as responsible Police Officers". On this basis, the impugned orders have been passed. Even though it has been said that the petitioners were discharged, yet the fact remains that allegations were levelled and a finding was recorded against them. In this situation, the orders can''t be sustained under Clause 9 of the standing order. The petitioners were entitled to the grant of a due and reasonable opportunity in accordance with the principles of natural justice. No enquiry was admittedly held. The petitioners were not associated with the fact finding proceedings. There was violation of the principles of natural justice. As a result, the impugned orders are vitiated.

The aforesaid case was also of a SPO and his services were also terminated without any regular enquiry and without having been found guilty in the regular enquiry.

A similar question arose before the Full Bench of this Court in case Sher Singh Vs. State of Haryana and Others, wherein, their Lordships, while interpreting Rule 12.21, 19.5, 16.21 and 16.24 of the Punjab Police Rules, 1934 and Article 311 of the Constitution, observed as under:-

A constable can be discharged from Service under Rule 12.21 at any time within three years of his enrolment in spite of the fact that there is a specific allegation which may even amount to misconduct against him;

A Superintendent of Police can form his opinion regarding the likelihood or otherwise of a constable making a good police officer not only on the basis of the periodic reports contemplated under Rule 19.5 but also on the basis of any other relevant material; and

The provisions of Rule 16.24 and o 311 shall be attracted only when the punishing authority decides to punish the constable.

Again, this court discussed the status of the SPO and the question, "whether he could be discharged from service at any time", in case Parveen Kumar Vs. State of Punjab, wherein it was observed that when the case was not found upon any allegations of misconduct, it was neither punitive nor stigmatic and then such order of discharge is quite valid. The said judgment is not applicable to the facts of the present case as the order of dismissal in the present case is punitive and is clearly stigmatic. The said judgment was discussed by this Court in another case Surinder Pal Kaur Vs. The State of Punjab and Others, nd while distinguishing with the said judgment, this court observed as under:-

The contention of counsel for the respondents that the petitioner''s services, being governed by the standing order, which permits the discharge from service at any time, whatsoever for unsatisfactory work and conduct, would have been accepted, had the impugned order confined itself to the work and conduct of the petitioner. As the impugned order concludes that the petitioner misconducted herself/misbehaved with another Officer, the punishing authority was required to hold an inquiry and on the basis of evidence, led for and against the allegations and, thereafter arrive at an independent conclusion. In the absence of any such procedure having been adopted, and in view of the settled law, as referred to in the preceding paragraphs, I have no hesitation in holding that the impugned order being founded on an alleged misconduct is not only punitive but also stigmatic. As no show-cause notice was ever issued, nor any explanation sought or any inquiry conducted, the impugned order, being violative of the principles of natural justice, has to beset aside. Merely because the petitioner was an S.P.O., appointed on daily wages, would be no reason to dispense her services on allegations of misconduct, without issuance of a show notice or holding of an inquiry.

In the instant case also, the order Ex. P2 reveals that the department had levelled the allegations of wrongful custody of the amount of Rs. 1,08,000/- and also misappropriation of the same with the connivance of C-1 Harchetan Singh and SPO Santokh Singh and it was further alleged against the appellant that he was responsible for maligning the reputation of the police department. Thus, the order certainly being stigmatic and punitive one could not be passed without holding any regular enquiry against him. Similar observations were made by the Apex Court in case Jagdish Mitter Vs. The Union of India (UOI), wherein it was observed as under:-

....... When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: Does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the a irmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal. That being so, we are satisfied that the High Court was in error in coming to the conclusion that the appellant had not been dismissed, but had been merely discharged. It is conceded that if the impugned order is construed as one of dismissal the appellant has been denied the protection guaranteed to temporary servants under S. 240(3) of the Government of India Act, 1935 or Art. 311(2) of the Constitution, and so, the order cannot be sustained.

That apart, I am also impressed by the other argument raised by the learned counsel for the appellant that since two other employees have been dealt with leniently, therefore, there is no reason to place the appellant at disparity. In this regard, he has referred to the judgment delivered in case Ratnakar P.M. v. UCO Bank, through its Ratnakar P.M. Vs. UCO Bank and Others, wherein it was observed as under:-

In our view, when two delinquents are charged for the identical misconduct and when the evidence and facts and circumstances of the case are identical, the disciplinary authority is required to act in a fair manner in the matter of awarding punishment and no discriminatory attitude should be shown. As pointed out earlier, on identical charge, the petitioner and Mr. Barve were charged. The evidence on record is also identical. There is absolutely no difference in any manner except that the petitioner was junior to Mr. Barve. Yet, in the matter of inflicting the punishment, different orders have been passed. The learned counsel for the petitioner has submitted that though irregularities were going on in the Hamam Street Branch in connection with the SGL transaction for many years, no attention was paid by the higher authorities to the complaint made by the petitioner.

Considering the aforesaid case, in my view, it would be expedient in the interest of justice to maintain parity between C-1 Harchetan Singh and SPO Santokh Singh with the appellant, who were subjected to departmental proceedings on the same charges and to inflict the same penalty as imposed upon C-1 Harchetan Singh, upon the appellant.

The learned counsel for the appellant has further submitted that at the time when the appellant was dismissed from service, he had completed eight years of service and still he was to retire, therefore, prudent requires that he should be reinstated.

Having taken into consideration the aforesaid contentions and the fact that the appellant was removed from service without holding a valid enquiry, it is a fit case, in which the appellant could be reinstated. Since there is no other evidence on the record that the appellant remained under any other service, therefore, he could not be awarded full back wages beyond the period of three years and two months from the date of passing of this judgment or joining service whichever is later. Resultantly, this appeal is partly accepted, impugned judgments are set aside and the appellant is directed to be taken, back in service.