JUDGMENT
M.L. Singhal, J.
1. Inderjit Singh joined PAP Jalandhar as Constable on 30.3.1993. While undergoing training in PAP Jalandhar, he was put on temporary duly at Punjab Civil Secretariat, Chandigarh on 24.7.1993. On 24.7.1993, he fell ill. After informing the In-charge, he went to the doctor for taking medicine. Doctor advised him complete rest. He informed the In- charge that he had been taken ill and the doctor had advised him complete rest. He applied for leave. He reported back for duty on 11.10.1993. He again fell ill on 16.10.1993. He remained under the treatment of Dr. A.S. Paul till 9.11.1993. He reported back on 10.11.1993. He was treated as absent from duty
from 24.7.1993 to 11.10.1993 and then from 16.10.1993 to 9.11.1993. Show cause notice was issued to him by the Commandant, 27th Battalion, PAP Jalandhar dated 6.10.1993 calling upon him (o show cause as to why he be not discharged from service under Rule 12.21 of the Punjab Police Rules (in short the PPR). He submitted detailed reply thereto and produced medical certificate. Vide order dated 9.11.1993, he was discharged from service. It was further ordered that the period of absence shall be treated as non-duty period. According to him, it was not an order of simple discharge but was in fact an order removing him from service passed by way of punishment on a definite allegation of absence from duty. In-derjit Singh filed suit for declaration against the State of Punjab to the effect that order No. 2045- 49/ST dated 9.11.1993 passed by the commandant, 27th Battation, PAP Jalandhar whereby he was discharged from service under Rule 12.21 of the PPR was in fact not an order of discharge simplicitor but was in essence an order removing him from service by way of punishment and as such was illegal, null and void, unlawful, unconstitutional, arbitrary, capricious, wanton, discriminatory and mala fide and against the provisions of law, service rules and the rule of natural justice, unjust, improper, inoperative and ineffective and was not binding on him and that he continued to be in the service of the State of Punjab as if the said order had never been passed. It was alleged in the plaint that rule 12.21 of the PPR gave arbitrary power to the Superintendent of Police/Commandant and was therefore violative of the Constitution of India. He was discharged from service on definite allegation of absence from duty. Rule 12.21 PPR is not attracted. No compliance of the procedure prescribed in Rule 16.24 PPR was made before this order was passed. No summary of allegation was served on him nor any evidence was recorded nor any opportunity of defending himself was given to him. Order was passed by way of punishment and in contravention of the provisions of Rule 16.2 PPR.
2. Defendant-state of Punjab contested Ihe suit of the plaintiff urging that the plaintiff was habitual absentee and was not likely to prove efficient police official. As such, he was discharged from service on 9.11.1993 under Rule 12.21 of the PPR. It was order of discharge simplicitor and was passed not by way of punishment.
3. On the pleadings of the parties, the following issues were framed :-
1. Whether the plaintiff is entitled to the declaration as prayed for ? OPP
2. Whether the suit is not maintainable in the present form ? OPD
3. Whether no legal and valid notice under Section 80 CPC was served upon the defendants ? OPD.
4. Whether no cause of action accrued to the plaintiff ?OPD
5. Relief.
Plaintiff’s suit was decreed by Subordinate Judge Second Class, Jalandhar vide order dated 22.7.1995 in view of his finding that it was not an order of discharge simplicitor passed by the Commandant discharging the plaintiff from service. Commandant considered the record and found him habitual absentee, indisci-plined and negligent and this finding was stigmatic in character inasmuch as this finding would stand in his way of future employment. It was found that there should have been inquiry into his alleged absence from duty because absence from duty is “misconduct” and “misconduct” is required to be established through regular inquiry.
4. Not satisfied with the order of Subordinate Judge Second Class, Jalandhar dated 22.7.1995, State of Punjab went in appeal. Vide order dated 9.11.1999. Additional District Judge, Jalandhar dismissed the appeal. Slill not satisfied, State of Punjab has come up in further appeal to this Court.
5. Respondent-plaintiff was shown the door vide order dated 9.11.1993 Ex.P2 which is not an innocuous order of discharge simplicitor. Commandant considered the record and found him habitual absentee, indis-ciplined, incorrigible, not likely to prove an efficient police official. Order Bx.P2 was thus attaching stigma to him barring him from future entry in service. Absence is also misconduct. Such “misconduct” is required to be established through regular inquiry. In this case, there was no regular inquiry. He was shown the door unceremoniously under Rule 12.21 of the PPR. In this case, allegation of absence from duty, spreading of indiscipline in the force and further that he is an undesirable element, amounts to stigma on his character which will be hindrance in his securing employment in future under the State. Impugned order was passed observing that he is habitual absentee and is habitual to committing breach of police discipline. He is incorrigible. Such an order could not have been passed except after the grant of a due and reasonable opportunity of hearing as contemplated under the provisions of the PPR and Article 311. It was held in Paramjit Singh v. State of Haryana , 1991(2) RSJ 705 that where the delinquent was being accused of absence from duly and had been called upon to show cause as to why action be not taken against him, it would not be an order of discharge simplicitor but an order of dismissal passed by way of punishment.
For the reasons given above, this appeal fails and is dismissed.
6. Appeal dismissed.
