(Fakkir Mohamed Ibrahim Kalifulla and C. Nagappan, JJ.)
Gurbax Singh _______________________________________ Appellant
v.
State of Punjab & Ors. ____________________________ Respondent(s)
Civil Appeal No(S). 4069/2009, decided on February 17, 2016
The Order of the court was delivered by
Order
1. The appellant is aggrieved by the order of the Division Bench of the High Court of Punjab and Haryana dated 16.11.2005 in Letters Patent Appeal No. 97 of 2003, by which the Division Bench affirmed the order of the learned Single Judge, who declined to interfere with the order of dismissal dated 27.6.1991 passed against the appellant.
2. The appellant joined as a Constable in the Police service of the Respondent No. 1/State. In between 11.7.1986 and 5.6.1989, his services were appreciated. On 5.6.1989 the Deputy Inspector General, Jalandhar Range with the approval of the Director General of Police, Punjab Branch gave a fortuitous promotion to the appellant to the rank of Sub-Inspector of Police with immediate effect for having shown exceptional courage, gallant action and sense of duty in liquidating a dreaded terrorist in a case under FIR No. 82 dated 10.7.1987, who was booked for the offence under Section 307 read with Section 34 IPC as well as Sections 25, 54 and 59 of the Arms Act. While granting such fortuitous promotion and forwarding a copy to the concerned SSP Jalandhar, he was also cautioned that the working of the appellant should be closely watched to ensure that there was no deterioration and lack of alertness in the performance of his duties.
3. While so, in March 1991, according to the appellant, a tussle broke out as between him and one Didar Singh, who made every effort to forcibly evict the appellant from the premises in which he was tenanted. There was a diary entry in the jurisdiction of Police Station at the instance of the appellant’s wife on 8.3.1991, wherein it was alleged that Didar Singh was acting based on the support of Deputy Inspector General of Police, Chandigarh by name Mr. G.I.S. Bhullar. One of the owners of the tenanted premises by name, Mohinder Singh, who is an Advocate, also forwarded a representation to the Hon’ble Governor of Punjab referring to the undue pressure applied on the appellant for vacating the premises where he was residing with the motive to grab the property of the owners.
4. In the above-stated background, when inquiry was held by the Vigilance Department, the appellant stated to have made a detailed statement on 26.6.1991 before the Superintendent of Police (Vigilance), Chandigarh about the undue involvement of the Deputy Inspector General along with Didar Singh to grab the property in which he was residing.
5. Be that as it may, there was a show cause notice issued to the appellant for his alleged involvement in supporting a terrorist gang. It was in the above-stated background, by the order dated 27.6.1991, the services of the appellant came to be terminated, dispensing with the usual formality of holding an inquiry, by stating that the said requirement was being dispensed with as the Punishing Authority was satisfied with the desparate anti-social and anti-national involvement of the appellant along with the member of terrorist gang.
6. Aggrieved by the said order of dismissal, appellant preferred the writ petition, wherein apart from arraying the official respondents as parties, the appellant impleaded the concerned DIG of Police, Mr. G.I.S. Bhullar as Respondent No.5, apart from denying his involvement in any anti-social or anti-national activity along with the member of any terrorist gang.
7. On behalf of the respondents, a common written statement was filed in the writ petition reiterating the nature of alleged activities of the appellant with the terrorist gang, which necessitated the Department to dismiss the appellant. There was also a bald rebuttal as against the malafides alleged against Respondent No.5. The Respondent No.5, in spite of such specific allegations of malafides alleged against him, did not come forward to file any reply to the writ petition. Therefore, the allegations of malafides remained un-rebutted.
8. The learned Single Judge dismissed the writ petition taking note of the allegations of the official respondents relating to the alleged anti-social and anti-national involvement of the appellant along with the members of the terrorist gang. Significantly, the learned Single Judge also completely omitted to deal with the allegations of malafides raised by the appellant as against Respondent No.5, who was a higher authority in the hierarchy of police service.
9. When the appellant challenged the order of the learned Single Judge, we find that the Division Bench while affirming the order of the learned Single Judge again did not go into the allegations of malafides.
10. In the above-stated background, we heard Mr. Nidhesh Gupta, learned senior counsel appearing for the appellant and Mr. Saurabh Ajay Gupta, learned Additional Advocate General for the State of Punjab appearing for the respondents. Having considered the submissions of the respective counsel and having perused the material papers placed before us, we find prima facie support in the submission of the learned senior counsel appearing for the appellant that the non-consideration of the allegations of malafides, especially in the absence of any rebuttal at the instance of Respondent No.5, it will be difficult to straightway come to an exact conclusion that the confidential communications which were relied upon by the Disciplinary Authority to terminate the services of the appellant by dispensing with the normal procedure of holding inquiry would be justified.
11. We do not wish to delve deep into in the said issue, inasmuch as if the appellant had been given an opportunity in the inquiry which could have been held by the Disciplinary Authority with utmost confidentiality, there would have been scope for the appellant to demonstrate the correctness or otherwise of the materials relating to his involvement in the alleged anti-social, anti-national activities along with any member of a terrorist gang. It can also be said that in spite of any such opportunity, the respondent Authorities could have been in a position to establish his involvement. Therefore, at this juncture, if at all anything can be done, it can only be by way of granting an opportunity to the appellant at the stage at which the order of dismissal came to be passed by directing the Disciplinary Authority to hold an inquiry and thereafter take a decision depending upon the outcome of that inquiry.
12. In the normal course, we would have resorted to such a course, but we find that the dismissal order came to be issued on 27.6.1991, when the appellant had put in 28 years of service and that during the pendency of this litigation, the appellant had already reached the age of superannuation. That apart, Mr. Gupta, learned senior counsel appearing for the appellant, has informed that the appellant is now more than 70 years old and he is hospitalized and is not in a position to participate in any proceedings because of severe physical ailments.
13. Therefore, it will not be prudent to adopt the said course for holding any fresh inquiry. Instead, we are of the view that the equity of justice can be sub served by adopting a middle course of allowing the respondents to convert the order of dismissal into one of compulsory retirement as provided under Rule 3(1) of the Punjab Civil Services Rules, which is applicable to the police service. Rule 3(1) (a) of the said Rules, reads as under:—
“3 (1)(a) The appropriate authority shall, if it is of the opinion that it is in public interest to do so, have the absolute right, by giving an employee prior notice in writing, to retire that employee on the date on which he completes twenty-five years of qualifying service or attains fifty years of age as on any date thereafter to be specified in the notice.
b) The period of such notice shall not be less than three months,
Provided that where at least three months’ notice is not given or notice for a period less than three months is given, the employee shall be entitled to claim the sum equivalent to amount of his pay and allowances, at the same rates at which he was drawing them immediately before the date of retirement for a period of three months or, as the case may be, for a period by which such notice falls short of three months.”
14. Applying the said Rule, we modify the order dated 27.6.1991 as one of compulsory retirement and direct Respondent Nos. 1 to 4 and 6 to pass all consequential orders sanctioning the terminal benefits payable to the appellant. The said exercise shall be carried out by Respondent Nos.1 to 4 and 6 within eight weeks from the date of production of a copy of this order.
15. With the above observations and directions, the appeal stands disposed of.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(S). 4069/2009
Gurbax Singh … Appellant(s);
v.
State of Punjab & Ors. … Respondent(s).
(with interim relief and office report)
Decided on February 17, 2016
(Before Fakkir Mohamed Ibrahim Kalifulla and C. Nagappan, JJ.)
For Appellant(s)
Mr. Nidhesh Gupta, Sr. Adv.
Mr. Tarun Gupta, Adv.
Ms. S. Janani, Adv.
For Respondent(s)
Mr. Saurabh Ajay Gupta, AAG
Mr. Saurabh Singhal, Adv.
For Mr. Jagjit Singh Chhabra, AOR
UPON hearing the counsel the Court made the following
ORDER
16. The appeal is disposed of in terms of the signed order.
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