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Harbans Singh v. The State of Punjab - CWP-9785-2006 [2006] RD-P&H 3837 (7 July 2006)



CWP NO.9785 OF 2006

DATE OF DECISION: 06.07.2006

Harbans Singh ... Petitioner


The State of Punjab ... Respondents


Present:- Mr. S.K. Sharma, Advocate for the petitioner.


J.S. Khehar, J. (Oral)

The petitioner was inducted into the service of the Police Department as a constable in 1995. In 1996, a first information report was registered against him under Sections 393,394 and 458 of the Indian Penal Code read with Section 25 of the Arms Act. Consequent upon the trial conducted against him, the petitioner was convicted by the Additional Sessions Judge, Ferozepur vide a judgment/order dated 26.7.2001 (Annexure P2/A). Based on the petitioner's conviction, on charges related to the offence of dacoity, he was dismissed from service by an order dated 9.10.2001 (Annexure P-5). The petitioner preferred appeals against the judgment rendered by Additional Sessions Judge, Ferozepur. His aforestated appeals bearing Nos.830-SB of 2001 and 831 of 2001, have since been admitted for regular hearing by this court. An interim order has also been passed in the aforesaid appeals by this court, whereby, the sentence awarded to the petitioner has been suspended.

It is on account of the suspension of his sentence that the petitioner issued a legal notice dated 15.10.2001 asserting that the order of dismissal from service should be suspended during the pendency of the appellate proceedings before this court. Since the respondents did not take any decision on the aforesaid legal notice dated 15.10.2001, the petitioner approached this court by filing Civil Writ Petition No.19757 of 2001. The aforesaid writ petition was disposed of by order dated 20.12.2001 (Annexure P7) by requiring the respondents to take a final decision on the legal notice referred to above. It is in the aforesaid circumstances that the Senior Superintendent of Police passed an order dated 31.5.2002 (Annexure P8).

By the aforesaid order the request of the petitioner was declined. After a lapse of more than four years since the passing of the aforesaid order dated 31.5.2002, the petitioner has approached this court by filing the instant writ petition with the same prayer. At the present juncture, the petitioner relies on an opinion tendered by the office of the Advocate General, Punjab. The opinion tendered by the Advocate General, Punjab sought to be relied upon by the petitioner is being extracted hereunder:- " OPINION

A perusal of Rule 16.2(2) of the Punjab Police Rules shows that "an enrolled Police Officer convicted and sentenced to imprisonment on a criminal charge shall be dismissed." An interpretation of the rule would mean that the said rule is to be read in toto meaning thereby that the Police Officer should be convicted and sentenced to imprisonment. In case one of the above two ingredients of conviction and sentence are missing, the Police Officer cannot be dismissed. The same would mean that in the event of said Police Officer filing an appeal against the conviction before the Higher Court and in the event of sentence having been suspended by the said Higher Court, the Police Officer cannot be dismissed. The Punishing Authority should wait for the outcome of the said appeal or revision so filed by the said Police Officer against the conviction and sentence. Strict interpretation is to be given to rule 16.2(2) of the Punjab Police Rules. The Punishing Authority cannot dismiss a Police Officer simplicitor on the basis of conviction and sentence. In case the sentence is suspended by a Higher Court and the petition against conviction is admitted by the said Higher Court, the Rule 16.2 (2) would not come into operation.

Thus, the Punishing Authority should wait for the outcome of appeal or revision filed by the convicted Police Officer before the Higher Court. Once the sentence is suspended by the Higher Court, Rule 16.2 (2) cannot be read in two separate parts but has to be read in its totality." It is also the contention of the learned counsel for the petitioner, that the Director General of Police, Punjab, has since accepted the opinion tendered by the office of Advocate General, Punjab. It is submitted that since the sentence awarded to the petitioner has been suspended, during the course of appellate proceedings by this court, the order of dismissal passed against the petitioner on 9.10.2001 (Annexure P5) be revoked and or be kept in suspended animation, till the decision of this Court.

It is not possible for us to accept the submission of the learned counsel for the petitioner, in view of the decision rendered by the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera, AIR 1995 Supreme Court 1364. In the aforesaid case the Apex Court was considering the exercise of power under Clause (a) of the second proviso to Article 311 (2) of the Constitution of India, wherein, after the conviction of the employee, he had preferred an appeal and the High Court in exercise of its appellate power had suspended the sentence imposed upon him. Despite the aforesaid position, the court held as under:- " The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court."

In view of the clear and unambiguous declaration of the legal position on the issue in hand by the Supreme Court in the decision referred to above, we are satisfied that instant claim of the petitioner is clearly mis- conceived. Accordingly, the instant writ petition is dismissed.

After this court had passed the order, learned counsel for the petitioner insisted that he has referred to certain decisions which have not been noticed by this court while passing the order. It is, therefore, that we took upon ourselves to refer to the two judgments of the Supreme Court which were brought to our notice; the first being Laxman Dundappa Dhamanekar and another v. Management of Vishwa Bharata Seva Samiti and another, (2001) 8 Supreme Court Cases 378, and the second, State of Madhya Pradesh v. Syed Qamarali, 1967 S.L.R. 228. Both the judgments relied upon by the learned counsel for the petitioner are irrelevant to the main controversy in hand. Learned counsel for the petitioner possibly referred to them to tender an explanation for the delay in approaching this court despite the fact that the competent authority had rejected the claim of the petitioner on merits by passing an order dated 31.5.2002 (Annexure P8) four years before the filing of the instant writ petition. Undoubtedly, cause of action raised by the petitioner arose to him finally when the aforesaid order was passed by the Senior Superintendent of Police on 31.5.2002 and even a civil suit was not competent as against the aforesaid order at the present juncture. The instant writ petition which was filed beyond the period of limitation was accordingly liable to be dismissed for reasons of delay and laches alone. In spite of the aforesaid, we had taken it upon ourselves to dispose of the instant writ petition on merits, although it should have been disposed of for reasons of delay and laches.

In view of the peculiar facts and circumstances of the case, we deem it appropriate to impose costs on the petitioner. Accordingly, the instant writ petition is dismissed with costs which are quantified at Rs.10,000/-. The aforesaid costs will be deposited by the petitioner with Secretary, Legal Service Authority, Punjab, within three months from today and the receipt thereof shall be placed on the record of this case. In case, the amount is not deposited within the prescribed period, the matter be listed for further hearing.




July 6, 2006. JUDGE



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