CASE NO.: Appeal (civil) 34 of 2004 PETITIONER: Himmat Singh RESPONDENT: State of Haryana & Ors DATE OF JUDGMENT: 24/02/2006 BENCH: S.B. Sinha & Dalveer Bhandari JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
This appeal is directed against a judgment and order dated 14.07.2003
passed by the High Court of Punjab & Haryana in CWP No.14261 of 2000
dismissing the writ petition filed by the Appellant herein questioning an
order dated 24.08.2000 by reason whereof his offer for voluntary retirement
was accepted.
The Appellant was appointed as a Constable in Haryana Police. In
1992, he was promoted as Head Constable. He allegedly had been on
unauthorized leave. The Station House Officer made a report to the
superiors about his behaviour and conduct. He was placed under
suspension, whereafter a departmental proceeding was initiated against
him. During the pendency of the said enquiry, according to the Appellant,
when he was called to the office of the Superintendent of Police on
29.05.2000, filed an application wherein he, inter alia, expressed his
intention to go for voluntary retirement with effect from 31.08.2000 in the
following terms :
“Most respectfully I want to bring in your kind
notice that on 19.8.1999 at about 9 P.M. I received an VT
on wireless set from previous worthy S.P. Shri O.P.
Singh IPS Hisar that, three unknown culprits covering
their mouth riding on an matiyala scooter round up these.
2. That at that time I was present along with police
party near Puspa Complex near Dabra Chowk Hisar.
3. That above culprits come on above scooter
towards ply over the turned in sector 13A Hisar Shopping
Center I covered these in Sector 13 while running behind
these might right leg gone in sewerage dip and I got
fracture.
4. That on 19.8.99 I was admitted in G.H. Hisar
remained in G.H. Hisar up to 4.10.1999 and got 15%
disability on 1.3.2000. I am still under treatment.
5. That now I feel lackness in my right leg and
now I want to go on retirement from 31.08.2000.”
Allegedly, thereafter he was absolved of the charges framed against
him in the departmental proceedings. He despite reinstatement in service
allegedly was not allowed to perform any duty. Indisputably, by an order
dated 24.08.2000, the offer of the Appellant for voluntary retirement was
accepted, which reads thus :
“HC Himmat Singh No.852/HSR is hereby
permitted to proceed on voluntary retirement w.e.f.
31.8.2000 A.N. i.e. after the expiry of notice period.” .
The Appellant, however, contends that he had withdrawn the said
offer on 24.08.2000 itself by filing an application which was forwarded to
the Superintendent of Police by the Lines Officer, Police Lines, Hisar.
The Appellant filed a writ petition before the Punjab and Haryana
High Court praying, inter alia, for the following reliefs :
“i) issue a writ in the nature of certiorari calling
for the records of the respondents concerning the passing
of the order retiring the petitioner and after perusal of the
same, order retiring the petitioner be quashed and the
petitioner be allowed to continue in service.
ii) it is further prayed that an application which
the petitioner sent through Line Officer who has
forwarded to the Supdt. Of Police on 24.08.2000 be
allowed with all consequential reliefs and the petitioner
be allowed to continue in service till the age of
superannuation.”
A Division Bench of the High Court before issuing rule nisi went
through the records and opined that the contention raised by the Appellant
that he had withdrawn the offer of voluntary retirement on 24.08.2000 may
be correct. Pursuant to a direction issued by a Division Bench of the said
court, the then Superintendent of Police as also the Lines Officer affirmed
their respective affidavits.
We may furthermore notice that the Appellant in the writ petition
raised a serious allegation that he had been assaulted by the Fifth
Respondent on 24.08.2000, who forcibly obtained an acknowledgment from
him on the order of retirement although no copy thereof was handed over to
him. He while acknowledging the same made the following endorsements
therein :
“Sir,
Noted and application already for
withdrawal/cancellation sent to your office today.
Sd/- Himmat Singh, HC/SJL
P.S. HSR. 24.8.2000″
The said allegation of the Appellant had specifically been denied and
disputed by the Fifth Respondent in his aforementioned affidavit in the
following terms :
“That in the order dated 18/24.8.2000, the
deponent specifically mentioned that the petitioner would
be permitted to proceed on voluntary retirement w.e.f.
31.8.2000 i.e. after the expiry of the notice period,
therefore, the deponent was very well aware of the fact
that as per the provisions of the Rules the application of
the petitioner for seeking voluntary retirement could be
allowed after the expiry of the notice period.”
It was further pointed out :
“That some of the above-mentioned facts and
circumstances and orders passed by the deponent in the
case of the petitioner have deliberately been not brought
on record by the petitioner to suppress the material facts
from this Hon’ble Court and with a view to play fraud
upon the Court. The story of the petitioner is totally
belied from the fact that he has himself sworn an
affidavit duly signed by him, dated 1.9.2000, that he has
proceeded on voluntary retirement, whereas in the
present writ petition his own case is that he had made an
application on 24.8.2000 for withdrawal of the voluntary
retirement. It has been further mentioned by the
petitioner that his letter dated 24.8.2000 was signed by
the Line Officer, Police Lines, Hisar. It is respectfully
submitted that though the records pertaining to the
present case have been kept in the custody of this
Hon’ble Court and the alleged application dated
24.8.2000 is almost 2 years 9 months old, the deponent
most humbly submit from his memory that he has never
received such an application dated 24.8.2000 from the
petitioner in person. In fact, had the petitioner made any
such application he would have never sworn the affidavit
dated 1.9.2000 and would have at least made a mention
or in the alternative would have made a mention of the
said application dated 24.8.2000 in the said affidavit.
Had the alleged application dated 24.8.2000 been
presented by the petitioner to the competent authority i.e.
the deponent, there was no reason for the deponent to not
consider the same because in the order dated
18/24.8.2000 passed by the deponent it was clearly
indicated that the voluntary retirement of the petitioner
would come into effect w.,e.f. 31.8.2000 i.e. after the
period of the notice period.”
It had further been averred :
“In fact, it seems that the petitioner has deliberately
tried to mislead this Hon’ble Court by not only casting
very serious allegations of mala fide against the deponent
but also not producing before this Hon’ble Court relevant
orders passed by the competent authority i.e. the
deponent and other material facts such as the affidavit of
the petitioner dated 1.9.2000. it seems that the
allegations of malafide against the deponent do not
originate from the facts verified by the petitioner but
may have originated from the improper legal advice
given to him in as much as there as not only been a
deliberate attempt on behalf of the petitioner to suppress
material facts and circumstances, the petitioner may also
have been fully aware of the fact that if true facts are
brought to the notice of the Court, the petition filed by
the petitioner may not have been entertained. To
prejudice the mind of this Hon’ble Court, therefore, the
petitioner has chosen a very novel method i.e. firstly to
make material suppression of facts and play fraud upon
this Hon’ble Court and secondly to allege malafides
against the deponent to prove his case. It is clear that the
allegation of malafide have not originated from the actual
facts ands circumstances.”
The Lines Officer pursuant to the said directions affirmed an affidavit
before the High Court stating :
“1. That I was working as Lines Officer, Police
Lines, Hisar on 29.5.2000. An application for seeking
retirement w.e.f. 31.8.2000 was submitted by HC Himat
Singh (Petitioner) which was forwarded by the deponent
on the very same day and handed over to the petitioner
on his request which was submitted by him personally
before the then Superintendent of Police, Hisar-Sh.
Sandeep Khirwar, I.P.S.
2. That similarly an application for cancellation of
voluntary retirement dated 24.8.2000 addressed to the
Superintendent of Police Hisar as put up before me by
the petitioner and the same was also forwarded and
handed over to petitioner by me on his personal request
on the same day.”
The High Court on consideration of the entire matter was of the
opinion that the contentions of the Respondents are correct holding :
“it is not possible for us to record a finding of fact that
the petitioner actually communicated the application
dated 24.8.2000 withdrawing the request for retirement to
the Lines Officer, Police Lines, Hisar, for onward
communication to the Superintendent of Police, Hisar”
Upon taking into consideration the affidavit affirmed by the Appellant
on 01.09.2000 wherein he categorically stated that he had requested to
proceed on voluntary retirement w.e.f. 31.08.2000, the High Court opined :
“On the basis of the aforesaid affidavit submitted
by the petitioner, it is contended that the petitioner has
concocted a story so as to get out of his earlier request for
voluntary retirement. The original of the aforesaid
affidavit has been produced in Court along with the
official record. It reveals that the stamp paper on which
the affidavit was submitted was purchased from the
stamp vendor by the petitioner himself. The aforesaid
affidavit was duly notarized by a notary public. The
particulars of the notary public, reveal his identity as Sh.
Ram Swaroop Singh Dhanda, Advocate, Hisar, Learned
counsel for the petitioner could not dispute the purchase
of the stamp paper on which the affidavit has been sworn,
or the submission of the aforesaid affidavit by the
petitioner himself If the petitioner actually executed the
aforesaid affidavit (which has also been attached to the
written statement as Annexure R-3), and submitted it to
the authorities for consideration, there can hardly be any
doubt that the petitioner ever withdrew his request for
voluntary retirement. In fact the aforesaid factual
position demonstrates that the petitioner has maneuvered
official record to project an incorrect factual position so
as to obtain a favourable order from us.”
The High Court also rejected the contention of the Appellant that he
had been coerced to apply for voluntary retirement.
Mr. Mahabir Singh, the learned counsel appearing on behalf of the
Appellant, would submit that having regard to the fact that the Lines Officer,
Hisar, had clearly stated in the affidavit that the letter of withdrawal of the
offer of voluntary retirement had been handed over to him, it was his duty to
make an entry therefor in the requisite register in terms of clause 12.55 of
the Punjab Police Rules, 1934. He was furthermore in accordance with the
said rules required to make an entry thereof, in the appropriate register
showing that the same had been taken back by the Appellant. The said rule
reads thus :
“22.55.Register No. V. -The correspondence
register shall be maintained in two parts in Form 22.55.
Each part shall contain 400 pages.
(1) In Part I shall be entered a brief abstract of all
reports and orders received at the police station and of all
letters and replies dispatched which are not entered in
any other book.
(2) When any entry is made in the receipt columns
the corresponding dispatch column shall be left blank for
the reply and vice versa.
This register is a receipt and dispatch register and
is not meant as a record of the full correspondence.
Correspondence received and not meant to be forwarded
or returned shall be filed in monthly files. These shall be
destroyed after two years.
(3) In Part II the receipt and return of processes
shall be entered.
Processes include
(a) Summonses to appear or to produce.
(b) Warrants of arrests.
(c) Search warrants
(d) Orders of proclamation, attachment, injunction or
otherwise under sections 87, 88, 95, 99, 133, 140,
143, 144 and 145, Code of Criminal Procedure.
Warrants in all non-cognizable criminal cases and
summonses in non-cognizable criminal cases in which
Government is the complainant are served through the
police.
On the last day in each month a statement giving
the following information shall be entered in the daily
diary and sidelined in red ink :-
(a) The number of warrants remaining un-
executed at the end of the previous month,
received and executed during the current
month and remaining unexecuted at the end
of it.
(b) Similar information regarding summonses in
cognizable and non-cognizable cases.
(c) Similar information regarding other
processes.
At the end of the year any statistics required shall
be compiled from such entries in the daily diary.”
Having regard to the findings of fact arrived at by the High Court, we
are of the opinion that the said contention is wholly misconceived. If the
Appellant had taken back his application for withdrawal of resignation after
submitting the same to the Lines Officer; the question of making any entry
thereabout in the register would not arise. Alleged non compliance of the
said rule relating to maintenance of records furthermore has not been raised
by the Appellant either in the writ petition or in the special leave petition.
Such a question admittedly was also not raised at the hearing before the
High Court. We, therefore, cannot permit the Appellant to raise the said
contention before us for the first time.
Mr. Mahabir Singh then contended that the High Court did not deal
with the averments made in the writ petition that the Fifth Respondent was
biased and in this connection our attention was drawn to ground no.7 of the
writ petition.
The said contention again has no force. Such a contention has been
raised only in ‘the grounds’ and the contents thereof have not been verified.
In the grounds of a writ petition only a question of law can be raised and not
a statement of fact. No statement has been made in the body of the writ
petition. The statement made in the said grounds was also not verified in
accordance with the writ rules. Despite the same, as we have noticed
hereinbefore, the Fifth Respondent in his affidavit denied or disputed the
contents thereof. Whether the statement of the Appellant or the Fifth
Respondent was correct or not could not ordinarily be decided in a writ
proceeding. It is well known that in a writ petition ordinarily such a disputed
question of fact should not be entertained. The High Court arrived at a
finding of fact on the basis of affidavit evidence.
We agree with the said findings of the High Court.
Furthermore, as has been rightly held by the High Court, that the
Appellant was not entitled to any relief in view of his conduct as he
suppressed material facts.
For the reasons aforementioned, we do not find any merit in this
appeal, which is dismissed accordingly with costs. Counsel’s fee assessed at
Rs.10,000/-.