M.L. Singhal, J. - (1.) SUKHWINDER Singh joined service of the Punjab Police as constable in August , 1989. His constabulary No. was 644/ASR. He was under going training in P.R.T.C. Jahan Khelan where he fell ill. He went for treatment. During the period he was away on treatment, he was marked absent. He was marked absent from duty on 22.2.1990 when he was under treatment. Senior Superintendent of Police, Amritsar vide order dated 16.3.1990 discharged him from service under rule 12.21 of the Punjab Police Rules. No enquiry was held before he was discharged from service. In fact, it was not discharge simpliciter from service. It was dismissal from service by way of punishment for mis -conduct namely absence from duty. There should have been enquiry into this misconduct. Had he put in more than 3 years of service and absented from duty, there would have been regular enquiry under Rule 16.24 of the Punjab Police Rules. In the order dated 16.3.1990 the word "discharge" was used instead the word "dismissal" through basis for this action was his misconduct namely absence from duty. On these allegations, he filed suit for declaration to the effect that order dated 16.3.1990 of SSP, Amritsar discharging him from service with effect from 16.3.1990 was wrong, illegal, mala fide, cryptic, capricious, without jurisdiction, passed by way of punishment, violative of the Punjab Police Rules and the provisions of the Constitution of India and was thus non -est, inoperative and further that plaintiff continued to be on the job of constable on the rolls of District Police, Amritsar with all emoluments admissible to the post of constable as if the said order had never been passed at all. It was alleged in the plaint that rule 12.21 of the Punjab Police Rules was brought into play to ease him out of service summarily. On the face of it, it was an innocuous order but in essence it was an order passed by way of punishment for misconduct without affording him the protect ion of Article 311 of the Constitution of India and Rule 16.24 of the Punjab Police Rules.
(2.) STATE of Punjab contested the suit of the plaintiff, urging that he was a probationer. During the period of probation, he could be discharged from service if SPP felt that he was unlikely to prove an efficient police officer. Rule 16.24 is applicable to permanent police officials. He was not entitled to the protection of Rule 16.24 and Article 311 of the Constitution of India as he was on probation. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the suit is bad for non -joinder of necessary parties ? OPD 2 - Whether the suit is not maintainable in the present from ? OPD 3 - Whether the order dated 16.3.1990 is illegal, void and inoperative against the rights of the plaintiff? OPP 4 - Whether the plaintiff is entitled to the declaration and consequential relief prayed for ? OPP 5 - Relief. Vide Order dated 5.5.1993, Subordinate Judge Ist Class, Amritsar decreed the plaintiffs suit for declaration to the effect that order dated 16.3.1990 whereby he was discharged from service was illegal, null and void, without jurisdiction and was not binding on him and he continued to be in the service of the Punjab Police, and was entitled to the emoluments and other benefits admissible as if the said order had never been passed in view of his finding that there should have been enquiry under Rule 16.24 of the Punjab Rules, as absence from duty was viewed as "misconduct" by SSP, Amritsar when he discharged him from service. His discharge from service was not discharge simplicitor but was in fact dismissal from service inflicted upon him by way of punishment for misconduct namely absence from duty.
(3.) AGGRIEVED , State of Punjab went in appeal, which was dismissed by Additional District Judge, Amritsar vide order dated 28.5.1994.;