IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 874 of 1987
Date of Order: October 21, 2009
The Punjab State through the Collector, Ferozepur
...Appellant
Versus
Harjinder Singh
....Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
Present: Mr. Rajesh Garg, Addl. AG, Punjab,
Ms. Sudeepti Sharma, DAG, Punjab,
for the appellant.
Mr. Nikhil Chopra, Advocate,
for the respondent.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the
Digest?
M.M. KUMAR, J.
The only substantive question of law raised in this appeal
filed under Section 100 of the Code of Civil Procedure, 1908 (for
brevity, ‘the ‘Code’) is “Whether an order of discharge in respect of a
probationer police constable under Rule 12.21 of the Punjab Police
Rules, 1934 (for brevity, ‘the Rules) is liable to be set aside for want
of regular departmental enquiry contemplated by Rule 16.24(IX) of
the Rules”. The aforesaid question has been considered by Hon’ble
the Supreme Court in the context of same rules, facts and
circumstances in the cases of State of Punjab v. Balbir Singh,
(2004) 11 SCC 743; State of Punjab v. Sukhwinder Singh, (2005)
R.S.A. No. 874 of 1987 2
5 SCC 569; State of Punjab v. Avtar Singh, (2008) 7 SCC 405 and
State of Punjab v. Rajesh Kumar, (2006) 12 SCC 418. In
Sukhwinder Singh’s case (supra), Rajesh Kumar’s case (supra) and
Avtar Singh’s case (supra) the view taken by a Full Bench of this
Court in Sher Singh v. State of Haryana, 1994(2) SLR 100, has
been approved. It has been held that an order discharging a
probationer constable cannot be set aside merely on the ground that
no enquiry has been held. In para 8 of the judgment in Rajesh
Kumar’s case (supra) their Lordships have observed as under:-
“8. The Full Bench of the High Court of Punjab and
Haryana has held in Sher Singh v. State of Haryana,
(1994) 2 SLR 100 (P&H)(FB) that a constable can be
discharged from service under Rule 12.21 of the Punjab
Police Rules, 1934 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. It was further held by the Full Bench that a
Superintendent of Police can form his opinion on 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. In view of the above
decision, the constable can be discharged from service
even if there is specific allegation which may amount to
misconduct against him.”
2. Similar view has been taken in Sukhwinder Singh’s case
(supra). In para 7 of the judgment following opinion has been
expressed:-
R.S.A. No. 874 of 1987 3
“7. A Full Bench of Punjab and Haryana High Court
in Sher Singh vs. State of Haryana and others 1994 (1)
PLR 456 (FB), has examined the content and scope of
Rules 12.21, 19.3 and 19.5 of the Rules in considerable
detail. It has been held in that case that the effect of the
Rules is that for a period of three years a constable is
under surveillance. He is being watched and is kept in
close supervision. He has no right to the post and his
services are terminable at any time during this period of
three years. He can secure his position in the service only
if he convinces the Superintendent of Police that he is
likely to prove an efficient police officer. The Full Bench
has further held that the Rules contained the necessary
guidelines for the Superintendent of Police, on the basis
of which, he has to form an opinion regarding a
constable. If on a consideration of the relevant material,
the Superintendent of Police finds that a particular
constable is not active, disciplined, self-reliant, punctual,
sober, courteous or straight-forward or that he does
possess the knowledge or the technical details of the
work required of him, he can reasonably form an opinion
that he is not likely to prove an efficient police officer. In
such a situation the Superintendent of Police can invoke
his power under Rule 12.21 and can discharge the
constable from the force. We are in agreement with the
view taken by the Full Bench of the High Court. In fact,
this view is in consonance with the decision of this Court
R.S.A. No. 874 of 1987 4rendered in Supdt. of Police v. Dwarka Das, (1979) 3
SCC 789 where it was observed that if Rules 12.21(3)
and 12.21 are read together, it will appear that the
maximum period of probation in the case of a police
officer of the rank of constable is three years, for the
Superintendent of Police concerned has the power to
discharge him within that period. It was also held that the
power of discharge cannot be exercised under Rule 12.21
after the expiry of the period of three years and
consequentially if it is proposed to deal with an
inefficient police officer after the expiry of that period, it
is necessary to do so in accordance with Chapter XVI of
the Rules, which makes provisions for the imposition of
various punishments including dismissal from the police
force. No simple order of discharge under Rule 12.21 can
be passed after the expiry of the period of three years for
that will attract Article 311 of the Constitution.”
3. In the light of the preface of the statement of law the
facts of the present case may first be examined which have lead to the
filing of the instant appeal. The defendant-State of Punjab, has
challenged the judgment and decree passed by the learned lower
Appellate Court, dated 22.11.1986, allowing the appeal filed by the
plaintiff-respondent by reversing the judgment and decree dated
14.12.1985 passed by the learned Trial Court vide which suit for
declaration filed by the plaintiff-respondent was dismissed.
4. The plaintiff-respondent joined service as a Constable in
the Punjab Police on 20.2.1980 (F.N.). On 28.3.1982, the Senior
R.S.A. No. 874 of 1987 5
Superintendent of Police, Ferozepur passed an order discharging the
plaintiff-respondent from service by invoking the provisions of Rule
12.21 of the Rules on the ground that he was unlikely to prove a good
police officer. Challenging the discharge order dated 28.3.1982, the
plaintiff-respondent filed a suit for declaration. The defendant-
appellant contested the suit asserting that proper legal procedure was
adopted before passing the impugned discharge order. The following
issues were framed by the trial Court:
“1. Whether the plaintiff is entitled to the declaration
prayed for? OPP.
2. Whether the suit is bad for want of a valid and
legal notice? OPD.
3. Relief.”
5. The trial Court after discussing the evidence brought on
record and by referring to Rule 12.21 of the Rules returned the
finding that the validity of order could not be challenged in any
manner because the plaintiff-respondent was discharged on the
ground of inefficiency and he had worked for less than three years in
the department at the time of passing of discharge order.
Consequently, the trial Court dismissed the suit with costs, vide
judgment dated 14.12.1985.
6. The plaintiff-respondent then filed an appeal before the
lower Appellate Court. After noticing the aforementioned factual
position, the lower Appellate Court proceeded to discuss the Ex. P.1-
service file of the plaintiff-respondent. The relevant portion of paras
5 and 6 of the observations/findings recorded by the lower Appellate
Court, being relevant are reproduced as under:-
R.S.A. No. 874 of 1987 6
“5. Harjinder Singh plaintiff appeared as P.W.2 and
has stated that there was no adverse entry ever has been
communicated to him throughout his service and there is
no rebuttal to this effect and P.W.1 has placed on record
Ex. P.1 service file of the plaintiff. The learned counsel
for the appellant has taken me through the service file
Exh. P.1. There is no adverse entry or any report against
the plaintiff till 8.3.1982 i.e. D.R (D.D.R?) recorded by
the A.M.H.C in which it has been alleged that Harjinder
Singh has stated in the presence of Mehal Singh
Constable that he has relations with his sister. As such
there was quarrel between Mehal Singh and Harjinder
Singh in which other constables intervened and the
matter was settled. There was also allegations that he has
informed F.C.I people regarding nakabandi in case F.I.R
No. 62, dated 22.2.1982 under Sections 379/411/408/465
I.P.C. As such the A.M.H.C made a prayer that he
should be transferred before departmental action is taken
against the plaintiff-appellant. There is a letter dated
9.3.1982 to the same substance by S.I. Bichhu Ram to
Deputy Superintendent of Police, Fazilka which was
forwarded to the Senior Superintendent of Police,
Ferozepur by the D.S.P vide endorsement dated 9.3.1982.
There is further endorsement on the file “in my view he
is not likely to become good police officer, S.S.P may
like to consider his case for discharge from service dated
11.3.1982.” As such it is apparent that the action has
R.S.A. No. 874 of 1987 7been taken on the basis of D.D.R dated 8.3.1982 in
which serious allegation regarding character amounting
to stigma has been made against the plaintiff-appellant
and shelter under Rule 12.21 of the Punjab Police Rules
has been taken by the police department just to avoid
regular enquiry. Though the order of dismissal is really
made on basis of misconduct alleged in D.D.R dated
8.3.1982. No other service record has been taken into
consideration while passing the order of dismissal under
Rule 12.21 of Punjab Police Rules. No charge sheet has
been framed against the appellant-plaintiff. No enquiry
was held and he was not given opportunity to defend the
allegations made against him by the A.M.H.C in D.D.R
dated 8.3.1982. The impugned order is merely a
camouflage for dismissal on the ground of misconduct
alleged in the D.D.R dated 8.3.1982 and no other matter
has been taken into consideration, while passing the
above said order. No proper procedure has been
followed……
6. From the discussion above, it is apparent that the
order of Senior Superintendent of Police, Ferozepur
dated 28.3.1982 is passed solely on the basis of D.D.R
dated 8.3.1982 and without taking into consideration of
previous record of the plaintiff-appellant and as such is
merely a camouflage for order of dismissal for
misconduct. As such the appeal of the appellant-plaintiff
is accepted and the suit of the plaintiff for declaration to
R.S.A. No. 874 of 1987 8the effect that the order dated 28.3.1982 passed by the
Senior Superintendent of Police, Ferozepore by virtue of
which the plaintiff was discharged from service, is
illegal, wrong, wanton, cryptic, capricious, without
jurisdiction, against the terms and conditions of
employment and against the Punjab Police Rules and
against the procedure, precedent and therefore, null and
void and the plaintiff continues to be in the service of the
Punjab State on the same emoluments and benefits
admissible to him from time to time is decree with costs
in favour of the plaintiff-appellant and against the
defendant-respondent. Decree sheet be prepared
accordingly and the file of appeal be consigned to the
record room. Lower court record be returned.”
7. Against the judgment and decree passed by the lower
Appellate Court the defendant-State of Punjab has preferred the
instant appeal. An application under Order XLI Rule 5 read with
Section 151 CPC for stay was also filed along with the appeal.
However, the said application was dismissed vide order dated
26.10.1987.
8. During the course of hearing a specific query was put to
the learned State counsel as to whether the plaintiff-respondent has
been granted the benefit of the impugned judgment passed by the
lower Appellate Court since no stay was granted by this Court.
Accordingly, the learned State counsel has placed on record report of
the Assistant Civil Suit Clerk, office of the Senior Superintendent of
Police, Ferozepur, dated 6.10.2009 along with a letter dated
R.S.A. No. 874 of 1987 9
5.10.2009, which are taken on record as Mark ‘A’. A perusal of para
6 the said report shows that the plaintiff-respondent was reinstated in
service on 28.8.1990 and all arrears of back wages were also given to
him in pursuance of directions issued by the Executing Court on his
Execution Application. It has further been mentioned that the
plaintiff-respondent is still serving in the Police Department, Punjab.
9. I have heard learned counsel for the parties and perused
the record with their able assistance. The controversy in the present
case revolves around Rule 12.21 of the Rules, which reads thus:
“A constable who is found unlikely to prove an efficient
police officer may be discharged by the Superintendent
at any time within three years of enrolment. There shall
be no appeal against an order of discharge under this
Rule.”
10. It has already been noticed above that Rule 12.21 of the
Rules has not only been upheld but the order passed by the punishing
authority discharging the Constable has also been found to be lawful
on the rationale that the object of holding any preliminary inquiry was
limited to find out whether the Constable was likely to prove as an
efficient police officer. When the facts of the present case are
examined, the aforesaid principles are applicable in all fore. The
extracted para from the judgment of the lower Appellate Court shows
that the Deputy Superintendent of Police vide endorsement dated
9.3.1982 had recommended that in his opinion the plaintiff-
respondent Constable was not likely to become good police officer
and the appointing authority-S.S.P. may consider his case for
discharge from service. Therefore, the lower Appellate Court is not
R.S.A. No. 874 of 1987 10
right in holding that a regular departmental inquiry on the basis of
D.D.R. dated 8.3.1982 levelling allegation concerning character of
the plaintiff-respondent Constable amounted to stigma. The aforesaid
D.D.R. cannot be considered as foundation of the order of discharge
and the order cannot be dubbed as an order of dismissal. Therefore,
the view taken by the lower Appellate Court is liable to be set aside
and that of the trial Court is liable to be restored.
11. The question then is what relief could be granted to the
plaintiff-respondent. According to the report submitted by the
appellant department, the plaintiff-respondent was reinstated in
service on 28.8.1990 and all arrears of back wages have been paid to
him. He is still continuing in service. The decree passed by the lower
Appellate Court dated 22.11.1986 stand implemented. Therefore, it
may not be possible at this stage to set aside the decree which stand
executed because a person who has continued in service for about 20
years after passing of the judgment and decree and the stay was
declined by this Court, cannot be put to a situation which would
entail the result of discharging him from service after such a long
time. I answer the question of law in favour of the defendant-
appellant, yet, the appeal is dismissed as the decree passed by the
lower Appellate Court stand executed.
(M.M. KUMAR)
October 21, 2009 JUDGE
Pkapoor