High Court Punjab-Haryana High Court

The State Of Punjab vs Sain Dass on 2 December, 2008

Punjab-Haryana High Court
The State Of Punjab vs Sain Dass on 2 December, 2008
RSA No.173 of 1991                                             1


      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH




                                       RSA No.173 of 1991

                                       Date of Decision: 2.12.2008




The State of Punjab                                      ....Appellant

                          Vs.

Sain Dass                                                ..Respondent

Coram: Hon’ble Mr. Justice Vinod K.Sharma

Present: Mr.R.L.Gupta, Additional Advocate General, Punjab,
for the appellant.

Mr.G.K.Chawla, Advocate,
for the respondent.

Vinod K.Sharma,J. (oral)

This regular second appeal is directed against the judgment and

decree dated 17.7.1990 passed by the learned Additional District Judge,

Jalandhar allowing an appeal filed by the plaintiff-respondent against the

judgment and decree passed by the learned Sub Judge First Class, Jalandhar

dismissing the suit filed by the plaintiff-respondent.

The respondent/plaintiff was appointed as constable in Punjab

Armed Police and he joined his duties on 10.9.1981 at Jalandhar. He

successfully completed his training/recruitment course and worked as
RSA No.173 of 1991 2

constable at various places to the entire satisfaction of his superiors. He did

not earn any adverse report. His services were terminated on 21.3.1983 by

the Commandant. The appellant challenged the order of termination by

claiming it to be illegal, ultra-vires, arbitrary, without jurisdiction and

against the principles of natural justice.

The order was passed under Rule 12.21 of the Punjab Police

Rules (for short the Rules). It was claimed that it was not passed by the

competent authority and further the provisions of Rule 12.21 of the Rules

were not complied with in this case.

The plaintiff/respondent claimed that several representations

were made for reviewing the order but no steps were taken to review the

same and thus, the suit was filed.

Suit was contested on the ground that the appellant was not

found likely, to be a good and efficient police officer as such he was

discharged from service under Rule 12.21 of the Rules.

Other allegations were denied.

On the pleadings of the parties the following issues were

framed:-

1. Whether the order dated 21.3.1983 by virtue of which

the plaintiff was discharged from the service is illegal,

null and void? OPP

2. Whether the suit is not maintainable in the present

form?OPD

3. Relief.

The suit was dismissed.

RSA No.173 of 1991 3

In appeal a plea was taken that no material was placed on

record to prove that the appellant was not likely to prove to be a good police

officer as periodical reports at the intervals of six months by the Sub

Inspector or Inspector of Police under whom the respondent/plaintiff

worked were not produced and considered. Thus, it was claimed that the

discharge of the appellant under Rule 12.21 of the Rules was illegal.

Learned counsel appearing on behalf of the appellant

vehemently contends that the judgment and decree passed by the learned

lower appellate court cannot be sustained as under Rule 12.21 of the Rules

constable can be discharged from service on the subjective satisfaction of

the competent authority. It is also the contention of the learned counsel for

the appellant/State that the Superintendent of Police was competent to pass

order under Rule 12.21 of the Rules which could not be the subject-matter

of judicial scrutiny.

Learned counsel appearing on behalf of the respondent/

plaintiff, however, contends that order under Rule 12.21 can be by way of

punishment. The court can see whether order is of simple discharge or

passed on other material. In support of this contention respondent has

placed reliance on the judgment of Hon’ble Supreme Court in the case of

Smt.Rajinder Kaur Vs. Punjab State and another AIR 1986 SC 1790

(1), wherein Hon’ble Supreme Court has been pleased to lay down as

under:-

“13. On a conspectus of all these decisions mentioned

hereinbefore, the irresistible conclusion follows that the

impugned order of discharge though couched in innocuous
RSA No.173 of 1991 4

terms, is merely a comouflage for an order of dismissal from

service on the ground of misconduct. This order has been made

without serving the appellant any charge-sheet, without asking

for any explanation from her and without giving any

opportunity to show cause against the purported order of

dismissal from service and without giving any opportunity to

cross-examine the witnesses examined, that is, in other words

the order has been made in total contravention of the provisions

of Art. 311(2) of the Constitution. The impugned order is,

therefore liable to be quashed and set aside. A writ of certiorari

be issued on the respondents to quash and set aside the

impugned order dated 9.9.1980 of her dismissal from service. A

writ in the nature of mandamus and appropriate directions be

issued to allow the appellant to be reinstated in the post from

which she has been discharged The appeal is thus allowed with

costs. The authorities concerned will pay all her emoluments to

which she is entitled to in accordance with the extant rules as

early as possible in any case not later than eight weeks from the

date of this judgment.”

. Learned counsel for the respondent also placed reliance on the

judgment of this court in RSA No.1224 of 1986 titled Sat Paul, Ex-

Constable Vs. Punjab State decided on 27.5.1988.

Learned counsel for the respondent further placed reliance on

the judgment of this court in the case of Punjab State Vs. Joginder Singh,

Ex-Constable 1989 (3) SLR 665 to contend that in the absence of
RSA No.173 of 1991 5

periodical reports of the Sub Inspector under whom the constable is working

the order under Rule 12.21 of the Rules cannot be sustained. This court has

been pleased to lay down as under:-

“6. There is absolutely no material on the record to prove

that the plaintiff was not likely to prove a good police officer

for which he could be discharged from service under Rule

12.21 of the Rules. Rule 19.5(1) of the Rules,provides as

follows:-

“The fact that a recruit has been passed into the ranks

under rule 19.3 shall not be taken to mean that he is a

fully trained constable. A constable under three years’

service is at any time liable to discharge under rule

12.21. During the whole of this period he shall be kept

under close supervision and reported on at intervals of

six months in Form 19.5 (1) by the Sub Inspector or

Inspector under whom he is working through his

gazetted officer to the Superintendent of Police.

The orderly head-constable shall maintain a list of

constables under three years’ service. He shall submit the

name of each man a month before he is due from

confirmation to the Superintendent together with his

personal file which shall contain the form 19.5(1)

referred to in this rule.

Gazetted officers are expected to make themselves

acquainted as far as possible with the character and
RSA No.173 of 1991 6

career of all constables under three years’ service and

shall be responsible that the name of men unlikely to

make efficient police officers are brought to the notice of

the Superintendent.”

It is evident from the said rule that the constable shall be

kept under close supervision and reported on at intervals of six

months in Form 19.5(1) by the Sub Inspector or Inspector under

whom he is working through his gazetted officer to the

Superintendent of Police. No such six-monthly report has been

brought on the record on behalf of the defendants In the

circumstances, there is no illegality in the concurrent findings

of the two Courts below as to be interfered with in second

appeal.”

The case in hand is squarely covered by the decision of this

court in the case of Punjab State Vs. Joginder Singh, Ex-Constable

(supra).

Thus, no question of law much less substantial question of law

arises in this regular second appeal for consideration of this court.

No merit.

Dismissed.

2.12.2008                                           (Vinod K.Sharma)
rp                                                       Judge