JAI BHAGWAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) Shri Jai Bhagwan has filed the present writ petition under Articles 226/227 of the Constitution of India and it has been prayed by the petitioner that a writ in the nature of certiorari be issued against the respondents and the order dated 23.8.1991 Annexure P-3 be quashed and a declaration be given that the petitioner be deemed to be in service throughout and is entitled to the consequential benefits of service.

(2.) The case set up by the petitioner is that he joined the 3rd Battalion in Haryana Armed Police on 22.7.1991. He was permanently absorbed in the 3rd Battalion and was allotted Constable No. 3/776. When he was serving in the 3rd Battalion, he was falsely involved in a case FIR No. 303 dated 31.7.1991 under Section 324 IPC registered at Police-Station Sadar Karnal and he was placed under suspension vide order dated 2.8.1991 by the Commandant 2nd Battalion. The grievance of the petitioner is that since he was not under the command and control of the 2nd Battalion, but was under the command and control of the 3rd Battalion, therefore, the Commandant of the 2nd Battalion could not pass the order of suspension nor could he pass the order of his discharge on the instructions of the D.I.G., Haryana Armed Police Madhuban who had given the directions to the Commandant 2nd Battalion on 7.8.1991. It was also pleaded by the petitioner that since he has been acquitted subsequently by the Criminal Court, therefore, the order of discharge cannot stand in the eyes of law. Moreover, the order of discharge is penal in nature. It is stigmatic and it should be set aside with all consequential benefits.

(3.) Notice of the writ petition was given to the respondents. Reply was filed and it was pleaded that the order of discharge was passed by the Commandant, 3rd Battalion. The petitioner was recruited as a constable in the strength of the Commandant, 3rd Battalion. The writ petition is bad for non-joinder of necessary parties as the 3rd Battalion has not been impleaded as a party on merits, the stand of the respondents is that the service record of the petitioner was not found satisfactory during his probation period as he remained absent on several occasions and thereafter, he was awarded several minor punishments. The petitioner remained absent from 1.1.1990 to 2.1.1990. He. also remained absent on 11.2.1990. Again he remained absent from 30.4.1990 to 1.5.1990 and then on 24.4.1991 and then on 7.7.1991 and finally from 17.7.1991 to 22.7.1991. It was also pleaded by the respondents that petitioner was appointed as a recruit constable on 7.11.1989 in the 3rd Battalion HAP, Hisar. Thereafter, he was transferred to 2nd Battalion on 4.7.1990. The petitioner then was re-transferred to 3rd Battalion on 3.8.1991 and thereafter, he was put under the command and control of the Commandant of 3rd Battalion from 7.11.1989 to 4.7.1990 and thereafter, from 3.8.1991 to 23.8.1991. The petitioner remained under the command and control of the Commandant, 2nd Battalion from 4.7.1990 to 2.8.1991. Since the petitioner was under the control and command of the 2nd Battalion on 2.8.1991 i.e. The date on which he was placed under suspension due to his involvement in criminal case under Section 324 of the Indian Penal Code, therefore, the Commandant 2nd Battalion had the jurisdiction to suspend the petitioner. It was admitted by the respondents that DIG vide letter dated 7.8.1991 had directed the Commandant, 2nd Battalion, HAP, Madhuban, to take action against the petitioner in accordance with Punjab Police Rule 12.21 but the said directions were not complied with as the petitioner was re-transferred to 3rd Battalion Hisar with effect from 3.8.1991. The Commandant 2nd Battalion did not pass order dated 23.8.1991. This order is a order of discharge and not order of dismissal. The total record of the service of the petitioner show that he was in the habit of absenting himself from duty as police constable. Irrespective of the fact that the petitioner has been acquitted, it does not confer upon him any right of reinstatement in the police service. With this defence, the petitioner has prayed for the dismissal of the writ petition.