JUDGMENT
S.C. Malte, J.
1. The original plaintiff has preferred this appeal against the decision of Additional District Judge, Amritsar, who while allowing the appeal, dismissed the suit filed by the appellant-plaintiff. The appellant-plaintiff was a Constable working as a driver of the police vehicle. He remained absent without obtaining leave from 3.11.1978 till he returned on duty on 8.11.1978. Again on 9.11.1978 the plaintiff remained absent for two days without obtaining leave. It was also found that he was responsible for 42 Liters of petrol found short in the vehicle in his charge. On finding that he has thus committed misbehaviour while performing his official duties, he was subjected to departmental enquiry. Consequently, by order dated 2.4.1978 passed by the Senior Superintendent of Police, Amritsar, the plaintiff was dismissed from service. The plaintiff took up the matter in departmental appeal, but failed. The plaintiff-appellant, thereof, filed a suit and sought a decree that his order of dismissal from service was illegal and void, etc., and he was entitled to pay and privilege of the rank of constable as was available to him prior to his dismissal. The main contention raised by him was that he was not afforded sufficient opportunity to defend himself during the departmental enquiry.
2. The State of Punjab opposed the suit. It was submitted that sufficient and full opportunity was afforded to the plaintiff as per the rules applicable to the departmental enquiry.
3. The trial Court held that the list of witnesses who were to be examined during enquiry was not supplied to the plaintiff. He further found that sufficient opportunity to defend was thus denied to the plaintiff, and on that account the departmental enquiry was bad in law. Consequently, the suit was decreed and the order of dismissal was set aside. In appeal before the District Court, the Additional District Judge observed that the suit was bad for the reason that the plaintiff had not challenged the order passed by the Deputy Inspector General of Police while dealing with the departmental appeal filed by the plaintiff. On this ground he was held not entitled to any relief. He further observed that the Senior Superintendent of Police and the Deputy Inspector General of Police, Jalandhar, who were the officers who disposed of the departmental enquiry at the various stages, should have been impleaded as defendants, and the suit was, therefore, liable to be dismissed for lack of necessary parties. In so far as it related to the opportunity to defend himself, he took into consideration the evidence led at the time of departmental enquiry and the fact that the plaintiff has also led the defence evidence. He further took into consideration that during departmental enquiry the plaintiff was not able to satisfy that due to ill-health he was unable to attend the duties. He further observed that non-furnishing of statement of allegations and list of documents well in time cannot be said to be denial of reasonable opportunity. According to him no prejudice had been caused to the plaintiff in the course of departmental enquiry, he, therefore, allowed the appeal, and dismissed the suit filed by the plaintiff. Against that judgment dated 28.9.1982 present appeal is filed.
4. In this Court, the counsel for the appellant brought my attention to the finding of fact arrived at by the trial Court to the effect that the list of witnesses was never supplied to the appellant in the course of departmental enquiry. That finding of fact had not been upset at any stage. On that premise he further submitted that without advance knowledge regarding the names of the witnesses and the nature of evidence to be led, the plaintiff would not have sufficient opportunity to prepare himself for effective cross-examination of those witnesses.
5. In reply to that, the counsel for the State brought my attention to the Punjab Police Rules, 1934, Rule 16.24, which provides for the rules applicable to the departmental enquiries against the police officials. As per the procedure for departmental enquiries, at the initial stage, the Enquiry Officer is expected to read out to the delinquent a statement summarising the misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded. A copy of the statement is also required to be supplied to the delinquent free of charge. The papers of the departmental enquiry indicate that such details of the charge was prepared and served on the plaintiff on 5.12.1978 and he was called upon to state whether he would plead guilty to the charges. The plaintiff pleaded not guilt to the charges. Below such statement he has put his signature. To that extent there is a sufficient compliance of the Sub-clause (i) of Rule 16.24 of the Punjab Police Rules. Thereafter as per Clause 16.24 (I) (iii) the evidence is to be recorded in the presence of the delinquent. The department papers indicate that the witnesses were thus examined in compliance with that rule and the delinquent had also cross examined them, i.e. sufficient compliance with the said provisions applicable to such departmental enquiries. Rule 16.24
(1).(iv) further provides that after taking into consideration such evidence, the Enquiry Officer shall frame a charge and explain it to the delinquent and call upon him to answer it. Thereupon, as per the subsequent clause of the Rules, thus prescribed for departmental enquiries, the delinquent is called upon to state his defence and lead the defence witnesses. At the conclusion of the evidence, the order is to be passed, and in the event found guilty, notice regarding the proposed punishment should be served on the delinquent in order to enable him to have an opportunity to defend himself on the point of punishment. I was taken through these Rules and the AAG Punjab vehemently emphasised that the departmental enquiry was held in strict compliance of those Rules. Undoubtedly, the record of the departmental enquiry does indicate that the Rules thus made applicable to the departmental enquiry were followed. However, it must be said that the names of the witnesses should have been made known to the delinquent at the initial stage itself so as to afford him a proper opportunity to prepare himself for cross-examination. Nonetheless, the omission in that respect could not in this case materially affect because even according to the plaintiff, admittedly, he was absent for about six days without obtaining any kind of leave. He came-forth with the defence that due to ill-health he was unable to attend the duties. Therefore, in the present case, the plaintiff has taken upon himself the burden of placing on record the justification for his absence. Therefore, in this case the omission to supply list of witnesses pertaining to the evidence to establish his absence for six days, did not cause prejudice to him in view of the admitted position of absence of the plaintiff. On scrutiny of the defence led by the plaintiff, the Senior Superintendent of Police disbelieved it, and held that the absence of the plaintiff was unjustified. In these proceedings it would be open to the Court to consider the correctness or otherwise of such conclusion arrived during the departmental enquiry. This Court while dealing with the suit filed by the plaintiff, Court would not be sitting in appeal over the decision given by the authorities deciding the departmental enquiry proceedings.
6. The other charge against the delinquent was that 42 liters of petrol was found short in the vehicle which was in his charge. The papers before me indicate that on 3.11.1978 the plaintiff was asked to take that vehicle to the garage. It was accordingly taken to the garage and from 4.11.1978 the plaintiff was absent. Thereafter on 8.11.1978 he appeared on duties, but again absented on 9.11.1978 for two days. Thereupon he was required to hand over the charge of the vehicle to driver constable Gurcharan Singh. At that time 42 liters petrol was found less. The pleadings, therefore, clearly indicate that during the aforesaid period the vehicle was not attended by the plaintiff because he was not on duty. Nonetheless, for the loss of 42 liters of petrol the plaintiff was held responsible. The names of the witnesses and the material that was brought to establish that fact should have been made known to the plaintiff so as to enable him to properly cross-examine the witnesses to show his innocence. To that extent it can be said that omission to supply that information well in advance would amount to denial of proper opportunity to defend that charge.
7. Now, therefore, the only charge that can be justifiably taken into consideration is the one which pertained his unjustified absence for six days. The learned counsel for the appellant, realising the difficulty thus faced by them, came with argument that as per Rule 16.2 of the Punjab Police Rules, order of dismissal from service should not have been passed except in a case of ‘gravest act of misconduct or as the commutative effect of continued misconduct proving incorrigibility and complete un-fitness for police service.” Rule 16.2 of the Punjab Police Rules is in the following words :-
“16.2 (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.”
The question would be whether the absence of six days of the appellant can be considered as the “gravest act” falling under the said provision. The plaintiff has, however, not raised that point in the plaint. However, since the Punjab Police Rules lay down criteria in respect of circumstances that would justify dismissal from service, in my opinion, that legal position will have to be taken into consideration even in the absence of specific plea taken by the plaintiff in his plaint. While interpreting Rule 16.2 of the Punjab Police Rules, the Division Bench of this Court in case of Constable Om Parkash v. State of Haryana, 1994(2) Recent Services Judgments 791 held that the absence of the delinquent in that case for a span of about 50 days cannot be considered as the gravest act of misconduct calling upon for the imposition of dismissal. Again single Bench of this Court in a recent case of Mahaipat v. The State of Haryana, 1994(3) Recent Services Judgments 132 considered the sub Rule and held that absence of 83 days did not warrant punishment of dismissal. Thus, I find that the consistent view of this Court was to the effect that mere absence from duty would not be necessarily a gravest act of misconduct unless it is coupled with some such other facts that would show that the delinquent was guilty of continued misconduct showing incorrigibility and complete unfitness for police service. The cumulative effect of such conduct should be proved properly. Further, in my opinion, if such previous misconduct is also being taken into consideration while imposing the quantum of punishment, the delinquent should be made aware of it well in advance so as to give him sufficient notice that this previous conduct would also be taken into consideration while considering the punishment. In this case, there is nothing to show that the conduct of the plaintiff was such so as to render him incorrigible and unfit for police service. Therefore, in my opinion, the plaintiff deserves to be appropriately dealt with for the unauthorised absence for six days, the punishment of dismissal from service would hardly be justified. In this case, the plaintiff was dismissed on 2.4.1979. Against that dismissal he initially availed the departmental remedies and ultimately filed suit on 24.12.1979. The suit was initially decreed on 5.4.1982, but in appeal the suit was dismissed on 28.9.1982. Consequently, almost for the last 15 years the plaintiff is out of service. In my opinion, in these circumstances ends of justice would be met if the plaintiff is reinstated in service from the date of this judgment and the period of absence during the pendency of this litigation should be left for the consideration of the department as per the rules applicable to the police constables.
8. Before parting with this Judgment, I observe that the judgment of the Additional District Judge indicates that there is a misconception as to the person who should be impleaded as party in a suit. The Additional District Judge has observed that the Senior Superintendent of Police and the Deputy Inspector General of Police, who have passed the orders resulting into dismissal of the plaintiff, have not been made party to the suit. On that ground he observed that the suit was bad for non-joinder of necessary parties. As regards the parties to the suit, the provisions are found in Order 1 Rule 1 and 3 of the Code of Civil Procedure. These provisions clarify that a ‘person’ may sue or be sued. The term ‘person’ is not defined in the Code of Civil Procedure. Therefore, the definition as given in Clause (42) of Section 3 of the General Clauses Act, 1897, can be considered. It defines that the terms ‘person’ shall include any company or association or body of individuals, whether corporated or not. In other words, a person means a natural living person or a legal entity. Orders XXVII, XXVIII, XXIX, XXX, XXXI and XXXII of the Code of Civil Procedure make the provisions in respect of suits by or against various persons, including legal entities such as Government Corporation, Partnership firms etc. Briefly stated, therefore, in order that a person should be impleaded as a party, his existence should respond to the total meaning of the definition coupled with the above mentioned specific provisions in respect of suit by or against such person. From that angle, the State Government is a legal entity and its Officers are nothing but the various departments, which may be called as limbs through which the Government operates. These various officers have no separate legal entity in their official capacity apart from the Government to which they belong; unless such officer is sought to be sued in his personal capacity. In this case the dismissal of the plaintiff was from a Government employment. Therefore, the State Government was the proper party against whom the suit would have been properly filed and entertained.
9. The Additional District Judge also committed error in observing that the suit was liable to be dismissed because the plaintiff had not challenged the orders passed by the appellate authorities under the rules applicable to the departmental enquiry. In find that the plaintiff has challenged the initial dismissal order. That very order was eventually confirmed at the appellate stage during departmental enquiry. Obviously, therefore, it was enough for the plaintiff to challenge the dismissal order. The ultimate consequence of the departmental enquiry was thus challenged by him, and that was enough to invoke the jurisdiction of the Court to examine the correctness, legality etc. of the dismissal order. The appeal in departmental enquiries are nothing but continuation of the same departmental enquiry, though the proceedings of the departmental enquiry are being further examined by the higher officers invested with appellate power.
10. In the conclusion, the appeal is allowed in terms of conclusion arrived at in para 7 of this judgment. No orders as to costs.