STATE OF PUNJAB AND ORS.versusBALWINDER SINGH

A                        STATE OF PUNJAB A1'JD ORS.
                                        v.
                              BALWINDER SINGH

                              FEBRUARY 16, 2006

B             [ARIJIT PASA YAT AND TARlflli CHATTERJEE, JJ.)


         Service law:

          Dismissal-Employe! promoted as Head constable by DIG--Dismissal
C   from service by Superintendent of Police, for absenting without leave--
     Challenged on the grouna that dismissal order could be passed by DIG only
     and not Superintendent of Police- Held: Matter remanded back for fresh
    consideration as the Se,.,,ice Rules were not considered by High Court-
     Punjab Police Rules-Chapter XII-Rules 12./, 13.3(/), (2), 13.8(1).
D         Respondent was appointed as Constable and was promoted as Head
    Constable by the Deputy Inspector General of Police (DIG). He remained
    absent from duty for a l·~ng period. Enquiry officer found him guilty and
    consequently on the bas is of report of Enquiry officer, Superintendent of
    Police dismissed him from service. He preferred an appeal to the DIG,
E   which was also dismissed. He filed a suit for declaration that the order of
    dismissal and order of DIG were not proper, taking plea that the
    promotion was given by DIG, he alone was competent authority to dismiss
    him and not Superintendent of Police. Trial Court decreed the suit. First
    and second appeal wer1~ also dismissed. Hence the present appeal.

F        Jn support of its case, State referred to the Punjab Police Rules,
    Chapter XII relating to appointments and enrolments and submitted that
                                                                                  ,....
    the Superintendent ha!. the authority to grant the promotion.

         Disposing of the appeal and remitting the matter to High Court for
G fresh consideration, the Court
          HELD: I. The Pumjab Police Rules were not considered by the High
    Court. Had these been considered, the High Court would have been in a
    better position to appreciate the rival stands. [332-G I


H                                      330
               STATE OF PUNJAB v. BALWIN DER SINGH [PASAYAT. J.]               3J 1
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5625 of2002.              A
             From the Final Order & Judgment and Order dated 5.7.2001 of Punjab
        and Haryana High Court in Regular Second Appeal No. 81/1999.

             Arun K. Sinha, Rakesh Singh and Mukesh Kumar Sinha for the
        Appellant.                                                                     B
             R.K. Talwar, Amit Talwar, and S.L. Aneja for the Respondents.

             The Judgment of the Court was delivered by

              ARIJIT PASA YAT, J. The State of Punjab and its functionaries are        C
        the appellants in this appeal, directed against the final order and judgment
        dated 05.07.2001 passed in a Regular Second Appeal by a learned Single
        Judge of the Punjab and Haryana High Court.

             The controversy lies within a very narrow compass.
                                                                                       D
               The respondent filed a Suit for a declaration that the, order dated
        05.04.1995 passed by the Deputy Inspector General of Police, PAP, Jalandhar
        Cantt whereby his appeal was dismissed and the order dated 31.08.1994
        passed by the Commandant, 13th Bn. PAP, Jalandhar Cantt dismissing him
        from service were not in order. The Commandant in departmental proceedings
        held that his absence from duty during the periods 08.02.1994 to 16.03.1994 E
        and from 19.04.1994 to 24.02.1994 was to be treated as non duty and the
        period of suspension was to be held to have merged for all practical purposes.
        Respondent filed a Suit. His grievance was that the orders were in violation
        of the service rules, violative or principles of natural justice and, therefore,
        he was entitled to a declaration that he continued to serve the department as F
        Head Constable, as was the position before 31.08.1994 with consequential .
---\.   reliefs. His case, as reflected in the plaint was that he was appointed as
        Constable on 27.07 .1981 and was promoted as Head Constable in June, 1990.
        He remained absent on account of his ailment and went to his village for
        treatment after informing the Incharge Officer. An enquiry was conducted on
        the ground that he had unauthorisedly remained absent from duty. The enquiry G
        officer had found him guilty and consequently, on the basis of the report of
        the enquiry officer, which was accepted by the disciplinary authority, he was
        dismissed from service on 31.08.1994. The appeal to the Deputy Inspector
        General of Police was also dismissed. The State of Punjab filed written
        statement and raised a preliminary objection regarding maintainablility of the H
    332                    SUPREME COURT REPORTS                    [2006 J 2 S.C.R.

A Suit. On merits, it was statt:d that he was recruited as a Constable. He was..
  promoted as Head Constable. The authority who had ordered his dismissal
  was the competent authority. This plea was raised to counter the plea of the
  plaintiff that the promotion having been given by the Deputy Inspector General
  of Police, he could be dismissed only by the said authority and not by the
  Superintendent of Police. The Trial Court decreed the Suit. Appeal filed
B before the Additional District Judge, Jalandhar was also dismissed. The primary
  reasons indicated by the first appellate authority was that the plaintiff having
  been appointed by the Deputy Inspector General of Police and not by the              •
  Superintendent of Police, the dismissal order, if any, could by passed by the        ~

  Deputy Inspector General of Police and not the Superintendent of Police. A
c Second Appeal under Section 100, Code of Civil Procedure, 1908 (in short
  'the Code') was filed. The Second Appeal was also dismissed upholding the
  conclusions of the Trial Court and the first appellate court so far as the
  authority of the Superintendent of Police to dismiss the respondent is
  concerned.

D         When the matter wa.s placed for hearing, reliance was placed on a three
    Judge Bench decision of this Court in Civil Appeal No. 3274 of2001 wherein
    it was noted that when the order of promotion was passed by the Inspector          ..
    General of Police, the order of dismissal could not have been passed by the
    Commandant.
E         Mr. Arun Kumar Sinha, learned counsel appearing for the State of
    Punjab and its functionaries submits with reference to Punjab Police Rules,
    Chapter-XII relating to appointments and Enrollments that in the earlier order,
    the relevant rules were not taken note of. He referred to Rule 12.l, 13.3(1)
    and (2) 13.8(1) and submitted that the Superintendent of Police was the
F   authority who could grant the promotion. The matter was placed before the
    Deputy Inspector General of Police at the time of annual inspection for his
    approval so that the formal order of promotion could be passed. He has filed
    copies of certain documents, particularly, the order passed by the Deputy
    Inspector General of Police relating to the promotion in question.

G         We find that these aspects were not considered by the High Court. Had
    these been considered, the High Court would have been in a better position
    to appreciate the rival stands. It is also correct, as conceded by Mr. Arun
    Kumar Sinha, learned counsel appearing for the appellants that these rules do      <
    not appear to have be:en placed for consideration before the earlier Bench.
    We, therefore, deem it appropriate to remit the matter to the High Court for
H
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                  STATE OF PUNJAB v. BAL WINDER SINGH [PASAYAT, J.]              333
          fresh consideration on merits. The judgment of the High Court is set aside. A
          We make it clear that we have not expressed any opinion on the merits of the
          cases.

                Learned counsel for the respondent, with reference to Rule 16.38
          submitted that the procedure adopted by the authority is clearly untenable.
          This is an aspect which can also be taken up by the High Court at the time    B
          of hearing of the second appeal.

                 The appeal is, accordingly, disposed of.

          D.G.                                                   Appeal disposed of.    C




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