Swaran Singh vs State of Punjab and Others

Tejinder Singh Dhindsa, J.—The petitioner, who had been serving on the post of Head Constable with the Punjab Police, has questioned the validity of the order dated 29.11,2009, Annexure P14, passed by the Senior Superintendent of Police, Tarn Taran whereby the extreme penalty of dismissal from service has been imposed upon him. Still further, challenge in the present writ petition is to the order dated 15.3.2010, Annexure P16, whereby the statutory appeal preferred by the petitioner against the order of dismissal has been rejected as also the order dated 20.9.2011, Annexure P18, in terms of which the revision petition preferred by the petitioner has also been dismissed. Brief facts that would require notice are that the petitioner joined the Police Department as a Constable on 21.10.1971 and was thereafter promoted as Head Constable in the year 1992. It has been asserted that the petitioner has unblemished service record of 38 years to his credit. The petitioner was placed under suspension on 9.6.2009 based on the allegation that he had taken active part in election activities. The petitioner was charge-sheeted on 15.6.2009 and thereafter, enquiry proceedings were initiated in terms thereof and an Enquiry Officer was appointed. The enquiry report dated 26.11.2009, Annexure P10, was submitted returning findings against the petitioner. A show cause notice was served upon the petitioner along with a copy of the enquiry report contemplating the action to be taken against the petitioner. The petitioner responded to the show cause notice in terms of submitting reply dated 29.11.2009. Upon consideration of the reply dated 29.11.2009, the impugned order of dismissal has been passed on 29.11.2009 itself i.e. one day prior to the date of superannuation of the petitioner. It is not a matter of dispute that the Appellate and Revisional Authorities have also dismissed the Appeal/Revision preferred by the petitioner.

Learned counsel for the parties have been heard at length.

Rule 16.2 of the Punjab Police Rules, 1934 (for short to be referred as ''1934 Rules'') reads in the following terms:

PPR. 16.2. Dismissal: (1) Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension.

A clear mandate of Rule 16.2 of the 1934 Rules is that the penalty of dismissal is to be awarded only for the gravest acts of mis-conduct or on account of the cumulative effect of continued misconduct which, in turn, proves incorrigibility and complete unfitness for police service. Still further, the requirement of the Rules is that while passing any such order, regard has to be had for the length of the service and the claim to pension of such police official.

Undisputedly, the petitioner had almost 38 years of service on the date of passing of the impugned order dated 29.11.2009. Even the categoric averments made in the petition that prior to the initiation of the enquiry proceedings in pursuance to the charge sheet dated 15.6.2009, no previous enquiry had been initiated and as such, the assertion that the petitioner had an unblemished service record had gone unrebutted. A perusal of the impugned order would reveal that the Punishing Authority has given a complete go-by insofar as the mandate of Rule 16.2 of the 1934 Rules is concerned inasmuch as the length of service of the petitioner i.e. approximately 38 years as also his right to pension have not been taken into consideration at all. The impugned order merely recites that the reply to the show cause notice has been considered and the employees'' right to pension has been perused and considered from all aspects.

I find that mere re-production of a part of the relevant Rule i.e. 16.2 of the 1934 Rules would not suffice. The Punishing Authority/Appropriate Authority had to consider the length of service rendered by the petitioner as also the right to pension in the backdrop of his clean service record as also in the light of the charges that had been levelled against the petitioner on the verge of his superannuation. Such aspect has not been considered at all in the impugned order. Even the orders passed by the Appellate and Revisional Authorities suffer from the same very infirmity.

The scope and ambit of Rule 16.2 of the 1934 Rules came up for consideration before a Division Bench of this Court in Shiv Raj Singh Sidhu Vs. Union of India (UOI) and Others and it was held in the following terms:

It is further worthwhile to notice that the Punishing Authority has violated the mandatory provisions of Rule 16.2(1) by refusing to consider length of service of the applicant-petitioner, who had rendered about 33 years of service. A mere reproduction of the Rule is not sufficient compliance requiring examination of the case of the applicant-petitioner. There is nothing on record to conclude that he had earlier committed misconduct of such a nature. On the contrary he has continuously earned promotions. He entered service of the U.T. Administration on 21.5.1973 as Assistant Sub-Inspector and was promoted as Sub-Inspector on 3.12.1981. He was further promoted to the rank of Inspector on 16.9.1987 and was assigned the duties of Traffic Inspector in September 2003. He has earned appreciation while he was posted as Station House Officer in Police Station, Industrial Area, Chandigarh, in the year 2002. He was Investigating Officer in case FIR No. 125, dated 28.7.2002, registered under Sections 420, 467, 468, 473, 474, 258, 259, 263 and 120-B IPC. The case related to the recovery of fake stamps of different denominations worth Rs. 2,91,00,000/- and Rs. 31,731/- from four accused persons. The applicant-petitioner was awarded commendation by the Chandigarh Police and the accused were convicted in that case. The aforesaid averments have been made in para 27 of the petition. In reply to the aforesaid para, the averments have not been controverted. Therefore, we are of the view that the Punishing Authority has ignored the mandatory requirement of Rule 16.2(1) of the Rules.

Rule 16.2 of the 1934 Rules came up for consideration even subsequently in the matter of State of Haryana and others Vs. Jai Dev and a Division Bench of this Court had observed as under:

The case of the writ petitioner-respondent would be covered by the second principle because the Punishing Authority has failed to apply its mind to the right of the writ petitioner respondent to earn pension as he has rendered more than 27 = years of service. The aforesaid requirement is mandatory as per Rule 16.2(1) of the Rules while passing the order of dismissal. For the aforementioned view we place reliance on the judgments rendered in the cases of Ex. H.C. Hari Krishan v. State of Haryana, 2000 (1) SCT 1112 (P & H) and Ram Lal, Ex-Constable v. State of Haryana, 1996 (2) SCT 115. Therefore, we find that the learned Single Judge has acted within the parameters of law by modifying the order of dismissal to that of compulsory retirement. Subject to corrections of fact in the order of the learned Single Judge as noticed in this judgment the appeal is liable to be dismissed.

Accordingly, the impugned order dated 29.11.2009 at Annexure P14, order passed by the Appellate Authority dated 15.3.2010, Annexure P16, as also the order dated 20.9.2011, Annexure P18, passed by the Revisional Authority are set aside. The matter is remanded back to the Punishing Authority for passing of an order afresh in the light of Rule 16.2 of the 1934 Rules. Let such exercise be completed within a period of four months from the date of receipt of a certified copy of the order.

It is clarified that any consequential benefits that the petitioner may be entitled to upon the setting aside of the impugned orders would depend upon the outcome of such fresh re-consideration. Petition allowed in the aforesaid terms.