STATE OF PUNJAB Vs. EX. CONSTABLE AMARJIT SINGH

JUDGEMENT

(1.) Instant Regular Second Appeal has been filed by the State of Punjab against the judgment and decree dtd. 24/7/1995, passed by the Court of learned Sub Judge III Class, Jalandhar, whereby suit filed by the respondent-plaintiff for declaration was decreed as well as against the judgment and decree dtd. 4/9/1999, passed by the Court of learned Additional District Judge, Jalandhar, whereby appeal filed by the State against the judgment and decree dtd. 24/7/1995, has been dismissed.

(2.) Parties to the lis hereinafter shall be referred to by their original position in the suit. In nutshell, the facts of the case emanating from the record are that plaintiff-Amarjit Singh filed a suit for declaration to the effect that the impugned order No.85-89 dtd. 27/4/1993, passed by the Comdt. 13th Bn PAF Jalandhar Cantt. whereby the plaintiff was dismissed from service and order dtd. 23/7/1993 passed by D.I.G. of Police (PAP) Jalandhar Cantt., dismissing the appeal of the plaintiff are illegal, void, capricious, arbitrary, unjust, unconstitutional, against the provisions of law and violative of the principles of natural justice and the plaintiff is entitled to re-instatement w.e.f. the date of dismissal with all other monetary benefits attached with the service. It was pleaded that plaintiff joined as Constable in PAP Jalandhar Cantt. w.e.f. 22/1/1992 and that due to his illness he had to be away from duty on two occasions and that he had submitted application for grant of leave on medical grounds. But the punishing authority-defendant No.3, instead of granting leave directed to hold ex parte departmental enquiry against the plaintiff, even without serving notice with regard to the enquiry. The Enquiry officer recorded evidence without serving any notice to the plaintiff and held the plaintiff guilty and thereafter, the Comdt. i.e. the punishing authority passed order of dismissal. The plaintiff further alleged that the ex parte proceedings could not be initiated against the plaintiff without serving any notice nor any publication was made for securing the presence of the plaintiff and that statements of witnesses were recorded without oath and as such violated Rule 16.2 of PPR. The plaintiff had produced the medical certificates regarding his illness but were ignored by defendant no.3. The plaintiff filed an appeal against the impugned order to the D.I.G. of Police, PAP Jalandhar Cantt. and appellate authority passed the order dtd. 23/7/1993, without giving personal hearing to the plaintiff. The plaintiff further alleged that copy of the findings of the Enquiry officer furnished to the plaintiff was dim and illegible which is against the mandatory provision for not supplying the fair copy of the enquiry report and all other documents. The impugned order is also against Article 311(2) of the Constitution of India.

(3.) Upon notice defendants appeared and filed written statement raising certain preliminary objections with regard to maintainability of the suit in the present form and being pre-mature. Validity and legality of the notice under Sec. 80 C.P.C. and locus standi of the plaintiff was also challenged. On merits, the defendants had admitted that the plaintiff has joined as Constable in P.A.P with effect from 24/1/1992 and he absented himself wilfully on 22/3/1992 from C.T.C. Kapurthala while he was undergoing basic training and further alleged that his absence was recorded in Roznamcha vide DDR No.6 dtd. 22/3/1992. The plaintiff reported back on 6/5/1992 after a period of 44 days and 23 hours. Defendants specifically denied any application by the plaintiff for medical leave. They further alleged that a notice No.3091/OSI dtd. 26/3/1992 was sent at his home address and directed him to join his duty immediately but the plaintiff failed to report back at his place of posting. He reported back at Battalion on 6/5/1992 after the period of absence for 44 days 23 hours. Due to his absence, a departmental enquiry was ordered against him and Sh. Dharam Singh A/C 13th Bn, was appointed as enquiry officer to conduct departmental enquiry against the plaintiff, vide office order no.5868-71/ST dtd. 18/6/1992, which was received by the plaintiff himself on 5/7/1992. But the plaintiff did not appear before the enquiry officer and failed to join the departmental enquiry proceedings. After that, the enquiry officer got the ex parte order from the Comdt. 13th Bn, on 9/7/1992 and the plaintiff was informed accordingly on 27/7/1992, the plaintiff appeared before the enquiry officer and enquiry officer served him summery of allegations, list of prosecution witnesses and list of documents free of cost which was received by the plaintiff on 27/7/1992. On completion of evidence, a charge sheet was prepared and was given to the plaintiff after getting his signatures. The plaintiff had also given in writing that he did not want to produce any evidence in his defence and the same was available in the enquiry file. The enquiry officer submitted his findings to the punishing authority. As a result of departmental enquiry a show cause notice for dismissal was prepared and sent to the plaintiff at his home address on 13/11/1992 and the same was received by his father Sh. Nasib Singh on 24/11/1992 after getting his signatures, as the plaintiff was not present at his home. The plaintiff has not submitted his reply in detail and only gave in writing that he wanted to appear before the punishing authority before any order. The reply of the plaintiff was considered and found unsatisfactory. The plaintiff was dismissed from service w.e.f 27/4/1993. The plaintiff further filed an appeal to DIG/PAP against order dtd. 27/4/1993. The same was considered and rejected by DIG/PAP vide order dtd. 23/7/1993. The defendants further denied that ex parte proceedings were held against the plaintiff. The plaintiff reported back immediately after the passing of ex parte orders against him. Defendants further denied that there is procedure of taking oath before recording statement/evidence. The evidence recorded in the case was according to rules and departmental enquiry was held according to Punjab Police Rules and the plaintiff was dismissed from service under Rule 16.2 of the PPR on the ground of willful absence which is grave misconduct in the disciplined force. The defendants further denied that opportunity of personal hearing by the appellate authority was not given to the plaintiff and also denied the copy of enquiry report being dim.