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CASE NO.: Appeal (civil)  34 of 2004

PETITIONER: Himmat Singh

RESPONDENT: State of Haryana & Ors

DATE OF JUDGMENT: 24/02/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       This appeal is directed against a judgment and order dated 14.07.2003  passed by the High Court of Punjab & Haryana in CWP No.14261 of 2000  dismissing the writ petition filed by the Appellant herein questioning an  order dated 24.08.2000 by reason whereof his offer for voluntary retirement  was accepted.

       The Appellant was appointed as a Constable in Haryana Police.  In  1992, he was promoted as Head Constable.  He allegedly had been on  unauthorized leave.  The Station House Officer made a report to the  superiors  about his behaviour and conduct.  He was placed under  suspension,  whereafter  a departmental proceeding was initiated against  him.  During the pendency of the said enquiry, according to the Appellant,  when he was called to the office of the Superintendent of Police on  29.05.2000, filed an application wherein he, inter alia, expressed his  intention to go for voluntary retirement with effect from 31.08.2000 in the  following terms :

       "Most respectfully I want to bring in your kind  notice that on 19.8.1999 at about 9 P.M. I received an VT  on wireless set from previous worthy S.P. Shri O.P.  Singh IPS Hisar that, three unknown culprits covering  their mouth riding on an matiyala scooter round up these.

2.  That at that time I was present along with police  party near Puspa Complex near Dabra Chowk Hisar.

3. That above culprits come on above scooter  towards ply over the turned in sector 13A Hisar Shopping  Center I covered these in Sector 13 while running behind  these might right leg gone in sewerage dip and I got  fracture.

4.  That on 19.8.99 I was admitted in G.H. Hisar  remained in G.H. Hisar up to 4.10.1999 and got 15%  disability on 1.3.2000.  I am still under treatment.

5.  That now I feel lackness in my right leg and  now I want to go on retirement from 31.08.2000."   

       Allegedly, thereafter he was absolved of the charges framed against  him in the departmental proceedings.  He despite reinstatement in service  allegedly was not allowed to perform any duty.  Indisputably, by an order  dated 24.08.2000, the offer of the Appellant for voluntary retirement was  accepted, which reads thus :

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"HC Himmat Singh No.852/HSR is hereby  permitted to proceed on voluntary retirement w.e.f.  31.8.2000 A.N. i.e. after the expiry of notice period." .

                The Appellant, however, contends that he had withdrawn the said   offer on 24.08.2000 itself by filing an application which was forwarded to  the Superintendent of Police  by the Lines Officer, Police Lines, Hisar.

The Appellant filed a writ petition before the Punjab and Haryana   High Court praying, inter alia, for the following reliefs :

       "i)  issue a writ in the nature of certiorari calling  for the records of the respondents concerning the passing  of the order retiring the petitioner and after perusal of the  same, order retiring the petitioner be quashed and the  petitioner be allowed to continue in service.

       ii)     it is further prayed that an application which  the petitioner sent through Line Officer who has  forwarded to the Supdt. Of Police on 24.08.2000 be  allowed with all consequential reliefs and the petitioner  be allowed to continue in service till the age of  superannuation."

       A Division Bench of the High Court before issuing rule nisi went  through the records and opined that the contention raised by the Appellant  that he had withdrawn the offer of voluntary retirement on 24.08.2000 may  be correct.  Pursuant to a direction issued by a Division Bench of the said  court, the then Superintendent of Police as also the Lines Officer affirmed  their respective affidavits.   

       We may furthermore notice that the Appellant in the writ petition  raised a serious allegation that he had been assaulted by the Fifth  Respondent on 24.08.2000, who forcibly obtained an acknowledgment from  him on the order of retirement although no copy thereof was handed over to  him.  He while acknowledging the same made the following endorsements  therein :

       "Sir,  

       Noted and application already for  withdrawal/cancellation sent to your office today.

                               Sd/- Himmat Singh, HC/SJL                                 P.S. HSR. 24.8.2000"

       The said allegation of the Appellant had specifically been denied and  disputed by the Fifth Respondent in his aforementioned affidavit in the  following terms :

       "That in the order dated 18/24.8.2000, the  deponent specifically mentioned that the petitioner would  be permitted to proceed on voluntary retirement w.e.f.  31.8.2000 i.e. after the expiry of the notice period,  therefore, the deponent was very well aware of the fact  that as per the provisions of the Rules the application of  the petitioner for seeking voluntary retirement could be  allowed after the expiry of the notice period."

       It was further pointed out :

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                        "That some of the above-mentioned facts and  circumstances and orders passed by the deponent in the  case of the petitioner have deliberately been not brought  on record by the petitioner to suppress the material facts  from this Hon’ble Court and with a view to play fraud  upon the Court.  The story of the petitioner is totally  belied from the fact that he has himself sworn an  affidavit duly signed by him, dated 1.9.2000, that he has  proceeded on voluntary retirement, whereas in the  present writ petition his own case is that he had made an  application on 24.8.2000  for withdrawal of the voluntary  retirement.  It has been further mentioned by the  petitioner that his letter dated 24.8.2000 was signed by  the Line Officer, Police Lines, Hisar.  It is respectfully  submitted that though the records pertaining to the  present case have been kept in the custody of this  Hon’ble Court and the alleged application dated  24.8.2000 is almost 2 years 9 months old, the deponent  most humbly submit from his memory that he has never  received such an application dated 24.8.2000 from the  petitioner in person.  In fact, had the petitioner made any  such application he would have never sworn the affidavit  dated 1.9.2000 and would have at least made a mention  or in the alternative would have made a mention of the  said application dated 24.8.2000 in the said affidavit.   Had the alleged application dated 24.8.2000 been  presented by the petitioner to the competent authority i.e.  the deponent, there was no reason for the deponent to not  consider the same because in the order dated  18/24.8.2000 passed by the deponent it was clearly  indicated that the voluntary retirement of the petitioner  would come into effect w.,e.f. 31.8.2000 i.e. after the  period of the notice period."

       It had further been averred :

"\005In fact, it seems that the petitioner has deliberately  tried to mislead this Hon’ble Court by not only casting  very serious allegations of mala fide against the deponent  but also not producing before this Hon’ble Court relevant  orders passed by the competent authority i.e. the  deponent and other material facts such as the affidavit of  the petitioner dated 1.9.2000.  it seems that the  allegations of malafide against the deponent do not  originate from the  facts verified by the petitioner but  may have originated from the improper legal advice  given to him in as much as there as not only been a  deliberate attempt on behalf of the petitioner to suppress  material facts and circumstances, the petitioner may also  have been fully aware of the fact that if true facts are  brought to the notice of the Court, the petition filed by  the petitioner may not have been entertained.  To  prejudice the mind of this Hon’ble Court, therefore, the  petitioner has chosen a very novel method i.e. firstly to  make material suppression of facts and play fraud upon  this Hon’ble Court and secondly to allege malafides  against the deponent to prove his case.  It is clear that the  allegation of malafide have not originated from the actual  facts ands circumstances."          

The Lines Officer pursuant to the said directions affirmed an affidavit

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before the High Court stating :

       "1.  That I was working as Lines Officer, Police  Lines, Hisar on 29.5.2000.  An application for seeking  retirement w.e.f. 31.8.2000 was submitted by HC Himat  Singh (Petitioner) which was forwarded by the deponent  on the very same day and handed over to the petitioner  on his request which was submitted by him personally  before the then Superintendent of Police, Hisar-Sh.  Sandeep Khirwar, I.P.S.   

       2.  That similarly an application for cancellation of  voluntary retirement dated 24.8.2000 addressed to the  Superintendent of Police Hisar as put up before me by  the petitioner and the same was also forwarded and  handed over to petitioner by me on his personal request  on the same day."

                        The High Court on consideration of the entire matter was of the  opinion that the contentions of the Respondents are correct holding :

"\005it is not possible for us to record a finding of fact that  the petitioner actually communicated the application  dated 24.8.2000 withdrawing the request for retirement to  the Lines Officer, Police Lines, Hisar, for onward  communication to the Superintendent of Police, Hisar\005"

Upon taking into consideration the affidavit affirmed by the Appellant  on 01.09.2000 wherein he categorically stated that he had requested to  proceed on voluntary retirement w.e.f. 31.08.2000, the High Court opined  :           "On the basis of the aforesaid affidavit submitted  by the petitioner, it is contended that the petitioner has  concocted a story so as to get out of his earlier request for  voluntary retirement.  The original of the aforesaid  affidavit has been produced in Court along with the  official record.  It reveals that the stamp paper on which  the affidavit was submitted was purchased from the  stamp vendor by the petitioner himself.  The aforesaid  affidavit was duly notarized by a notary public.  The  particulars of the notary public, reveal his identity as Sh.  Ram Swaroop Singh Dhanda, Advocate, Hisar,  Learned  counsel for the petitioner could not dispute the purchase  of the stamp paper on which the affidavit has been sworn,  or the submission of the aforesaid affidavit by the  petitioner himself  If the petitioner actually executed the  aforesaid affidavit (which has also been attached to the  written statement as Annexure R-3), and submitted it to  the authorities  for consideration, there can hardly be any  doubt that the petitioner ever withdrew his request for  voluntary retirement.  In fact the aforesaid factual  position demonstrates that the petitioner has maneuvered  official record to project an incorrect factual position so  as to obtain a favourable order from us."

       The High Court also rejected the contention of the Appellant that he  had been coerced to apply for voluntary retirement.

       Mr. Mahabir Singh, the learned counsel appearing on behalf of the  Appellant, would submit that having regard to the fact that the Lines Officer,  Hisar, had clearly stated in the affidavit that the letter of withdrawal of the  offer of voluntary retirement had been handed over to him, it was his duty to  make an entry therefor in the requisite register in terms of clause 12.55 of

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the Punjab Police Rules, 1934.  He was furthermore in accordance with the  said rules required to make an entry thereof, in the appropriate register  showing that the same had been taken back by the Appellant.  The said rule  reads thus :

       "22.55.Register No. V. -The correspondence  register shall be maintained in two parts in Form 22.55.   Each part shall contain 400 pages.

(1) In Part I shall be entered a brief abstract of all  reports and orders received at the police station and of all  letters and replies dispatched which are not entered in  any other book.

(2) When any entry is made in the receipt columns  the corresponding dispatch column shall be left blank for  the reply and vice versa.

This register is a receipt and dispatch register and  is not meant as a record of the full correspondence.   Correspondence received and not meant to be forwarded  or returned shall be filed in monthly files.  These shall be  destroyed after two years.

(3) In Part II the receipt and return of processes  shall be entered.

Processes include \026  

(a)     Summonses to appear or to produce. (b)     Warrants of arrests. (c)     Search warrants (d)     Orders of proclamation, attachment, injunction or  otherwise under sections 87, 88, 95, 99, 133, 140,  143, 144 and 145, Code of Criminal Procedure.

Warrants in all non-cognizable criminal cases and  summonses in non-cognizable criminal cases in which  Government is the complainant are served through the  police.

On the last day in each month a statement giving  the following information shall be entered in the daily  diary and sidelined in red ink :-

(a)     The number of warrants remaining un- executed at the end of the previous month,  received and executed during the current  month and remaining unexecuted at the end  of it.

(b)     Similar information regarding summonses in  cognizable and non-cognizable cases.

(c)     Similar information regarding other  processes.

At the end of the year any statistics required shall  be compiled from such entries in the daily diary."    

       Having regard to the findings of fact arrived at by the High Court, we  are of the opinion that the said contention is wholly misconceived. If the  Appellant had taken back his application for withdrawal of resignation after  submitting the same to the Lines Officer; the question of making any entry

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thereabout in the register would not arise.  Alleged non compliance of the  said rule relating to maintenance of records furthermore has not been raised  by the Appellant either in the writ petition or in the special leave petition.  Such a question admittedly was also not raised at the hearing before the  High Court.  We, therefore, cannot permit the Appellant to raise the said  contention before us for the first time.

       Mr. Mahabir Singh then contended that the High Court did not deal  with the averments made in the writ petition that the Fifth Respondent was  biased and in this connection our attention was drawn to ground no.7 of the  writ petition.

       The said contention again has no force.  Such a contention has been  raised only in ’the grounds’ and the contents thereof have not been verified.   In the grounds of a writ petition only a question of law can be raised and not  a statement of fact.  No statement has been made in the body of the writ  petition.  The statement made in the said grounds was also not verified in  accordance with the writ rules. Despite the same, as we have noticed  hereinbefore, the Fifth Respondent in his affidavit denied or disputed the  contents thereof. Whether the statement of the Appellant or the Fifth  Respondent was correct or not could not ordinarily be decided in a writ  proceeding. It is well known that in a writ petition ordinarily such a disputed  question of fact should not be entertained.  The High Court arrived at a  finding of fact on the basis of affidavit evidence.  

       We agree with the said findings of the High Court.               Furthermore, as has been rightly held by the High Court, that the  Appellant was not entitled to any relief in view of his conduct as he  suppressed material facts.   

       For the reasons aforementioned, we do not find any merit in this  appeal, which is dismissed accordingly with costs.  Counsel’s fee assessed at  Rs.10,000/-.