G.S. Singhvi, J. - (1.) WHETHER order dated 8.9.1989 passed by Senior Superintendent of Police, Amritsar under Rule 12.21 of the Punjab Police Rules, 1934 (for short, 'the Rules') to terminate the services of the respondent could be treated as punitive solely on the basis of averments contained in the written statement filed by the appellants in the trial court is the substantial question of law which arises for determination in this appeal.
(2.) THE FACTS Respondent -Anil Kumar joined service as Constable in District Police, Amritsar on 9.3.1989. He absented from duty from 6.7.1989 to 8.7.1989 and again from 25.7.1989 to 29.7.1989. After considering his record, Senior Superintendent of Police, Amritsar discharged him from service vide order dated 8.9.1989 passed under Rule 12.21 of the Rules with the observation that he is unlikely to become an efficient police officer. The same read as under: "Constable Anil Kumar No.871/ASR of this district is discharged from service with effect from 8.9.89 after -noon under PPR 12.21 as he is unlikely to become an efficient police officer. Issue orders in O.B. and all concerned to note or necessary action." The representation submitted by the respondent against the order of discharge was rejected by the Deputy Inspector General of Police, Boarder Range, Amritsar vide memo No. 111/BR -5/5.11.1990 and this was conveyed to him vide order dated 9.11.1990 passed by Senior Superintendent of Police, Amritsar. The respondent challenged his discharge from service by filing a suit for declaration in the Court of Sub Judge, Ist Class, Amritsar. He pleaded that termination of his service was punitive in character because the real notice for exercise of power under Rule 12.21 was to punish him on account of alleged absence from duty and the same was liable to be invalidated because the Senior Superintendent of Police had not held any enquiry into the allegation of absence from duty. Paragraphs 2, 3 and 4 of the plaint, which contain the averments suggesting that the order of discharge was punitive, read as under: "2. That it was to be the sheer misfortune of the plaintiff that during service, he developed sudden health problems on 2 or 3 occasions and when he left for consulting a doctor, he was marked absent. Though such an absence was for an hour or so, the arrival of the plaintiff was recorded only after 2/3 days thereby implying that the plaintiff was absent for more times than actual. However, no explanation was called for these absence from the plaintiff. That it was against this background that suddenly vide order No.23884 -87/ dated 8.9.89, the Senior Superintendent of Police, Amritsar discharged the plaintiff from service while invoking provisions of P.R. 12.21. The provisions of P.R. 12.21 were restored to as a short -cut and only with a view to make the order of discharge look innocuous on the face of it, whereas the reality is that this order was passed by way of a penalty for the alleged absence from duty by the plaintiff (as referred to in para (2) above. Since the plaintiff had not completed his three years in service, the provisions of P.R. 12.21 came handy with the authority to punish the plaintiff while at the same time dispensing with the formalities of conducting a regular inquiry under P.R. 16.24.
(3.) IT is significant to note that no inquiry was ever conducted into the plaintiff's work and conduct to ascertain whether he (the plaintiff) was likely to become an efficient police officer or not neither at the plaintiff's back nor in his presence. No independent mind was applied to assess the work and conduct of the plaintiff and to arrive at a conclusion whether the plaintiff should or should not be retained in service. Thus, there was nothing for the authority to form opinion regarding likeliness or otherwise of the plaintiff becoming an efficient police officer. In the circumstances, the only reason/motive for discharging the plaintiff service was his absence from duty. Thus, the plaintiff was punished for his absence from duty and was not actually discharged because of the fact that he was unlikely to become an efficient police officer. The very purpose of discharge order (discharging the plaintiff) was punitive. Thus, the authority while discharging the plaintiff from service made a colourable exercise of power and in fact punished him under the garb of discharging him from service." In the written statement filed on behalf of the appellants, it was averred that after joining the duty, the petitioner had remained absent from 6.7.1989 to 8.7.1989 and again from 25.7.1989 to 29.7.1989 and, therefore, the Senior Superintendent of Police concluded that he was not likely to prove to be an efficient police officer and ordered his discharge under Rule 12.21. Paragraphs 2, 3 and 4 of the written statement are also reproduced below: "2. That the content of para No.2 of the plaint is vague and hence denied. It is denied being incorrect that due to illness he was to consult the doctor and in this process, his absence was recorded. There is no document on the file from which it can be gathered that the plaintiff was seriously ill and that it has rendered him unable to join duty. He remained absent from 6.7.1989 to 8.7.1989 and then from 25.7.1989 to 29.7.1989. There is no solid grounds for his absence. 3. Para No.3 of the plaint is wrong, vague and hence denied. The order dated 8.9.1989 vide which the plaintiff was discharged from service under Punjab Police Rules 12.21 is legal, valid and binding upon the plaintiff. The plaintiff was discharged from service according to terms and conditions of service. Moreover, at the time of passing the order dated 8.9.89, the plaintiff was temporary Govt. employee and Rule 16.24 is not applicable to this case. This rule is only applicable to permanent government employee. The service of the plaintiff was less than 3 years at the time of passing order dated 8.9.1989, so he was discharged under PPR 12.21. 4. That the contents of para No.4 of the plaint is wrong, vague and hence denied, in view of assertion given in the proceeding paragraphs. He was habitual absentee during his short period of service, within a period of three years under Punjab Police Rules 12.21, a Constable can be discharged at any time if he is found not to be a good police official and is unlikely to become an efficient police officer. On account of long and wilful absence without purpose, he was discharged under PPR 12.21 being a member of the disciplinary force." 3. On the pleadings of the parties, the trial court framed the following issues: - "1. Whether the orders dated 8.9.1989 and 5.11.1990 are illegal, void and inoperative against the rights of the plaintiff? OPP 2. Whether the suit is not maintainable? OPD . 3. Whether a legal and valid notice under Section 80 C.P.C. was issued to the defendant before filing the present suit. If so, what is its effect? OPP 4. Whether the plaintiff is entitled to the declaration and consequential relief prayed for? OPP;