State of Punjab & Ors. Vs. Avtar Singh (Dead) by LRS. [2008] INSC
896 (12 May
2008)
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLTE JURISDICTION CIVIL APPEAL NO. OF 2008 [Arising out of SLP (C)
No. 5753 OF 2003] State of Punjab & Others .. Appellants Versus Constable
Avtar Singh (dead) through LRs. .. Respondents
Dalveer Bhandari, J.
1. Leave granted.
2. This appeal arises from the
judgment dated September 16, 2002 delivered by the High Court of Punjab and
Haryana at Chandigarh in RSA No.556/2001.
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3. Brief facts which are necessary
to dispose of this appeal are recapitulated as under:-
4. The respondent was appointed on
probation for a period of three years in the Punjab Police in 1989. In July,
1992, he was sent to Barnala, Punjab to attend a departmental enquiry.
The Deputy Superintendent of
Police, Barnala relieved the respondent on 1.8.1992 with the direction to
report at his place of posting, but the respondent did not report at his place
of posting, therefore, he was marked absent from 1.8.1992 to 19.9.1992. The
respondent joined the duty on 20.9.1992 after one month and two days and again
remained absent from 7.10.1992. The respondent remained absent for a long
period without any permission from the senior officers which is a serious act
of misconduct according to the police discipline rules. In these circumstances,
the respondent was dismissed from service w.e.f. 1.11.1992 under rule 12.21 of
the Punjab Police Rules, 1934.
5. Rule 12.21 reads as under:
"A Constable who is found
unlikely to prove an efficient police officer may be discharged by the 3
Superintendent at any time within three years of enrolment. There shall be no
appeal against an order of discharge under this Rule."
6. The said order of dismissal was
challenged by the respondent by filing a civil suit for declaration that the
order of dismissal is illegal, ultra vires, unconstitutional, null and void and
against the principle of natural justice. The suit of the plaintiff /respondent
was decreed.
7. The State of Punjab aggrieved
by the said judgment and decree preferred an appeal. The said appeal was also
dismissed. According to the appellants, the appeal was dismissed without
considering the Punjab Police Rule 12.21.
Under the said rule, an employee
of disciplined forces can be removed from services any time within three years
of the enrolment. The Appellate Court held that an opportunity has to be
afforded to the delinquent official because the dismissal from the service
carries a serious stigma.
8. The State of Punjab preferred a
regular second appeal contending that the question of absence from duty without
prior permission of the Senior Officer is an act of grave misconduct. The
Punjab Police Rules, 1934 permit that an 4 inefficient constable may be
discharged by the Superintendent of Police at any time within three years of
the enrolment. The High Court of Punjab and Haryana dismissed the regular
second appeal on the ground that the impugned order of discharge was stigmatic
and respondent was not given a fair opportunity and secondly absence from duty
could not be viewed as culpable as in the same order the Senior Superintendent
of Police, (for short `SSP'), Barnala has condoned respondent's absence from
the duty. The State of Punjab aggrieved by the judgment of the High Court has
preferred the present appeal by special leave under Article 136 of the
Constitution.
9. The learned counsel appearing
for the State of Punjab submitted that the controversy involved in this case is
no longer res integra. He placed reliance on a three-Judge bench decision of
this court in State of Punjab & Others v.
Sukhwinder Singh (2005) 5 SCC 569.
The facts of this case are almost similar to the facts of the case in hand. In
the said case, the respondent was appointed as a police constable.
Before completion of the probation
period of three years, he 5 absented from duty without seeking permission for
22 days.
The SSP discharged him from
service with immediate effect by invoking rule 12.21 of the Punjab Police
Rules, 1934. The respondent challenged the order of discharge before the civil
court. The civil court held that order is null and void and the appellate court
also upheld that decision. The High Court dismissed the second appeal and held
that absence from duty was a misconduct and imposition of the punishment of
discharge on the respondent without holding a formal inquiry as envisaged under
Rule 16.24 (ix) of the Rules vitiated the order of discharge. The State of
Punjab aggrieved by the order of the High Court filed an appeal by special
leave before this court.
10. The State of Punjab contended
before this court that the respondent was only a probationer in terms of the
Rules. That the impugned order of discharge was neither stigmatic nor did it
affect him with any evil consequences. The impugned order was passed in
exercise of the power conferred by the Rules.
That since no disciplinary action
had been taken against the 6 respondent there was no necessity of holding any
formal enquiry.
11. On the other hand, the
respondent submitted that the impugned order of discharge, although apparently
innocuous, had in fact been passed on the ground of misconduct viz. the
continued absence from duty and therefore amounted to an order of dismissal.
That, therefore, it was obligatory upon the appointing authority to have held a
formal departmental enquiry. This court held as under:
"20. In the present case
neither any formal departmental inquiry nor any preliminary fact- finding
inquiry had been held and a simple order of discharge had been passed. The High
Court has built an edifice on the basis of a statement made in the written
statement that the respondent was a habitual absentee during his short period
of service and has concluded therefrom that it was his absence from duty that
weighed in the mind of the Senior Superintendent of Police as absence from duty
is a misconduct. The High Court has further gone on to hold that there is
direct nexus between the order of discharge of the respondent from service and
his absence from duty and, therefore, the order discharging him from service
will be viewed as punitive in nature calling for a regular inquiry under Rule
16.24 of the Rules. We are of the opinion that the High Court has gone
completely wrong in drawing the inference that the order of discharge dated 16-3-1990
was, in fact, based upon misconduct and was, therefore, punitive in nature,
which should have been preceded by a regular departmental inquiry. There cannot
be any doubt that the respondent was on probation having been appointed about
eight months back. As observed in Ajit Singh v. State of Punjab (1983) 2 SCC
217 the period of probation gives time and opportunity to 7 the employer to
watch the work, ability, efficiency, sincerity and competence of the servant
and if he is found not suitable for the post, the master reserves a right to
dispense with his service without anything more during or at the end of the
prescribed period, which is styled as period of probation. The mere holding of
preliminary inquiry where explanation is called from an employee would not make
an otherwise innocuous order of discharge or termination of service punitive in
nature. Therefore, the High Court was clearly in error in holding that the
respondent's absence from duty was the foundation of the order, which
necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules."
This court set aside the impugned
judgment of the High Court. The ratio of this case is fully applicable to the
facts of the case in hand. In the aforesaid case, the court dealt with the case
of police constable who was dismissed from the service without holding the
enquiry and by invoking Rule 12.21 of the Punjab Police Rules, 1934 and the
charge was absence of 22 days from the duty.
12. In this case, the respondent
was also a probationer police constable. He was also discharged from the
service because he remained absent from 1.8.1992 to 19.9.1992. He joined duty
on 20.9.1992 after total absence of a period of one month and two days and
again he remained absence since 7.10.1992.
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13. We have heard learned counsel
for the parties. We are in total agreement with the submission of the learned
counsel for the State of Punjab that the controversy involved in this case is no longer
res integra. Learned counsel appearing for the respondent had drawn our
attention to a two-Judge bench decision of this court in Prithipal Singh v.
State of Punjab & Others (2002) 10 SCC 133. The court held that once there
is stigma, the principle is well settled, an opportunity has to be given before
passing any order. Even where an order of discharge looks innocuous, but on a
close scrutiny, by looking behind the curtain if any material exists of
misconduct and which is the foundation of passing of the order of discharge, or
such could be reasonably inferred, then it leaves no room for doubt that any
consequential order, even of discharge, would be construed as stigmatic. The
decision in Sukhwinder Singh (supra) was given by a three-Judge bench and in
view of that decision in 2005, there is no scope for this court to take a
different view. We are squarely bound by the said decision.
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14. Consequently, the appeal filed
by the State of Punjab is allowed, but in the facts and circumstances of this
case, we direct the parties to bear their own costs.
...............................J.
(Tarun Chatterjee)
...............................J.
(Dalveer Bhandari) New Delhi;
May 12, 2008.
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