HARYANA STATE Vs. HARBANS LAL

JUDGEMENT

(1.) THE sole question of law raised in the instant appeal filed under Section 100 of the Code of Civil Procedure, 1908, is whether the provisions of Rule 16.38 of the Punjab Police Rules, 1934 (as applicable to Haryana) [for brevity, 'the Rules'] are mandatory?

(2.) BRIEF facts of the case are that the plaintiff -respondent was a Constable in the IInd Battalion Haryana Aimed Police, Madhuban. He was dismissed from service vide order dated 16.6.1984, passed by the Commandant of IInd Battalion Haryana Armed Police, Madhuban, after holding an inquiry. It was found that the plaintiff -respondent after consuming liquor had gone to the quarter of another Constable, namely, Ram Singh and addressed him in abusive language under the influence of liquor. The Enquiry Officer submitted his report, which constituted the basis of issuance of show cause notice to the plaintiff -respondent. After consideration of the reply filed by him, the Commandant held the plaintiff -respondent guilty of the charges and dismissed him from service, vide order dated 16.6.1984. His appeals filed under Rule 16.29 and 16.30 of the Rules were dismissed. He then filed a Civil Suit No. 402 of 1985 on 19.7.1985 challenging the order of his dismissal. The trial Court found that the provisions of Rule 16.38 of the Rules were mandatory and sanction of the District Magistrate was required to be obtained. The aforesaid view has been expressed by the Trial Court in para 11 of the judgment, which reads thus:

(3.) THE legal issue has been concluded in favour of the plaintiff -respondent and against the defendant -appellant State by Hon'ble the Supreme Court in the case of Delhi Administration v. Chanan Shah, A.I.R. 1969 S.C. 1108. In para 9 of the judgment it has been held that it was necessary to decide whether the provisions of Rule 16.38 of the Rules were mandatory or directory. Their Lordships of Hon'ble the Supreme Court held that there was no substantial compliance with its provisions. The aforesaid view has been followed and applied by a 5 -Judge Constitution Bench of Hon'ble the Supreme Court in the case of Union of India v. Ram Kishan : (1971)2 S.C.C. 349. In concluding para of the judgment the view taken in Chanan Shah's case (supra) has been followed and it has been held that there was no compliance whatsoever of Rule 16.38(1) of the Rules and the order of dismissal was illegal. It is pertinent to mention that Rule 16.38 of the Rules as applicable to Punjab is substantially the same as it is applicable to Haryana. The question whether the rule is mandatory or directory fell for consideration of Hon'ble the Supreme Court in the case of State of Punjab v. Raj Kumar : (1988)1 S.C.C. 701. Placing reliance on Chanan Shah's case (supra) as well as Ram Kishan's case (supra) and reversing a Full Bench judgment of this Court in Raj Kumar, A.S.I. v. State of Punjab, 1976 C.L.R. (P&H) 39, it has been held as under: