R.S.A.No. 3197 of 1997 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3197 of 1997 (O&M) Date of decision: 5.5.2011 State of Punjab and others ......Appellants Versus Surjit Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Satish Bhanot, Addl.A.G.Punjab for the appellants Mr.H.S.Mann, Advocate for respondent **** SABINA, J. Plaintiff Surjit Singh had filed a suit for declaration challenging the order dated 8.9.1993 passed by the Senior Superintendent of Police, whereby he was dismissed from service w.e.f. 7.9.1993 and the order, whereby appeal filed by the plaintiff against the said order was dismissed. The case of the plaintiff, in brief, was that he had joined as a Constable on 2.12.1986. Unfortunately, the plaintiff developed a severe sciatic pain and was still undergoing treatment qua the said R.S.A.No. 3197 of 1997 (O&M) 2 illness. The plaintiff could not report for duty and was marked absent w.e.f. 20.4.1992, although he had informed about his ill health to his superiors on 18.4.1992. The plaintiff was dismissed from service without following due procedure of law and the appeal filed by him was dismissed without giving any cogent reason. The misconduct alleged to have been committed by the plaintiff could not be described as gravest misconduct warranting extreme penalty of dismissal. The plaintiff had been denied opportunity of personal hearing. Defendants, in their written statement, averred that the plaintiff was afforded following punishments:- “1. Four years approved service forfeited w.e.f.19.3.1992 for absence for the period from 5.1.1991 to 16.4.1991. 2. Dismissed from service w.e.f. 7.9.1993 for remaining absence for the period 9 months and 7 days.” A departmental enquiry was conducted against the plaintiff and he was found absent from duty for 9 months, 7 days, 23 hours and 40 minutes. In the departmental enquiry, the plaintiff was found guilty of charge framed against him. The competent authority passed the order of dismissal after serving show cause notice to the plaintiff. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the impugned orders are illegal and void? OPP. 2. Whether the suit is premature, if so, its effect? OPD 3. Whether the notice U/S 80CPC is not legal and R.S.A.No. 3197 of 1997 (O&M) 3 valid? OPD 4. Relief.” The Civil Judge (Jr.Divn.) decreed the suit of the plaintiff vide judgment and decree dated 16.2.1996. Aggrieved by the said judgment and decree, defendants filed an appeal and the same was dismissed vide judgment and decree dated 4.12.1996 passed by the Additional District Judge. Hence, the present appeal by the defendants. Learned State counsel has submitted that the plaintiff was guilty of gravest misconduct as he had remained absent for a long period The plaintiff was working in a disciplined force. In support of his arguments, learned State counsel has placed reliance on Union of India and others vs. Dattalinga Toshatwad (2005) 13 SCC 709, wherein, it was held as under:- “8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16.6.1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called R.S.A.No. 3197 of 1997 (O&M) 4 upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed forco overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged.” Learned State counsel has further placed reliance on Ex Constable Jagbir Singh vs. State of Haryana (2006) 3 PLR 313, wherein, it was held as under:- "5. Having heard the learned counsel at considerable length, we are of the view that this petition is liable to be dismissed. A perusal of the Inquiry Report would show that a detailed inquiry was held in which number of witnesses including Dr.R.E.Pandey were examined. The petitioner has been given ample opportunity of hearing and to cross-examine the witnesses or put his case before the Inquiry Officer. In fact the petitioner had produced defence witness. After considering oral as well R.S.A.No. 3197 of 1997 (O&M) 5 as documentary evidence, the Inquiry Officer had recorded the conclusion that the petitioner was absent from duty and the justification for absence was stated to be his illness. The certificate produced showing that the petitioner was ill have been found to be false and bogus, which were produced to raise the defence. T he punishing authority has further noticed that the certificates are not only bogus and false, but the certificates have been issued on different dates and even the disease given in the certificate are different. It has also been found that the constable of Commando Force usually go to Dr. R.E.Pandey for issuance of such certificates. It is well settled that this court cannot sit in appeal over the findings recorded by the Inquiry Officer as accepted by the punishing authority, appellate authority and the revisional authority. For the aforementioned purpose, reliance may be placed on a judgment of Hon'ble the Supreme Court in the case of B.C.Chaturvedi v. Union of India, 1996 (1) SCT 617: 1995 (6) SCC 749. Learned counsel for the petitioner has failed to disclose any illegality on the part of the Inquiry Officer in following the procedure applicable to hold such inquiry or violation of any principle of natural justice, like refusal to cross- examine the witness or bringing on record the evidence by the petitioner. 6. We are further of the view the absence from duty from a disciplinary force like Commando Police is a misconduct R.S.A.No. 3197 of 1997 (O&M) 6 as has been held by Hon'ble the Supreme Court in the case of Jai Singh vs. State of Rajasthan, AIR 1966 SC 492. It has been held that in the absence of any violation of Wednesbury pinciples as laid down by the Constitution Bench of Hon'ble the Supreme Court in Prashad vs. Union of India, 2006 (2) SCC 1, it is not for the Courts to interfere with the quantum of punishment. No such violation of those principles have been canvassed or pointed out warranting substitution of the view taken by the disciplinary authorities to that of our own view. Moreover, the petitioner has rendered about 7 years of service, which is full of absence for various period." Learned State counsel has also placed reliance on Anwar Singh vs. The State of Punjab and another 2009 (2) SCT 428, wherein, it was held as under:- "12. The submission of learned counsel for the appellant was that it was a single alleged misconduct against the appellant while the provisions of Section 16 (2) of the Rules, 1934 anticipate the multiple gravest acts of misconduct or the cumulative effect of continued misconduct, proving incorrigibility and complete unfitness for service. In other words, it should have been more than one misconduct for which the punishment of dismissal from service can be awarded and not the single act of misconduct. 13.This submission is totally fallacious. It only means that if the appellant had absented himself intermittently for a couple of days, may be within a month or two, these acts R.S.A.No. 3197 of 1997 (O&M) 7 of misconduct would fall within the mischief of Rule 16.2 Rules, 1934 being more than one, but continued absence from duty for more than three, four or six months does not constitute misconduct within the meaning of Rule 16.2 of the Punjab Police Rules. Such a submission is devoid of merit and does not appeal to reason. 14. The continued absence for such a long period was in itself gravest misconduct. Each day's absence amounted to an act of misconduct. The total absence for six months has to be considered as a multiple acts of misconduct. Not only this, when the charge-sheet was sent to him, the appellant did not appear. When he was sent notice by the Enquiry Officer, he did not appear. He did not join the proceedings. These acts of the appellant also amounted to gravest form of mis-conduct. Therefore, by no stretch of imagination, it can be said if the misconduct complained of against the appellant did not fall within the purview of Rule 16.2 of the Rules, 1934. The cumulative effect of continued absence from duty amounted to gravest act of misconduct proving incorrigibility and complete unfitness for service. Therefore, the appellant was liable to be removed from service under Rule 16.2 of the Rules 1934 as the misconduct committed by the appellant was of gravest form poving his complete unfitness for service. 15. There is second limb of Rule 16.2 of the Rules, 1934 which lays down that while making such an award, regard R.S.A.No. 3197 of 1997 (O&M) 8 shall be had to the length of service of the offender and his claim to pension." Learned counsel for the respondent, on the other hand, has submitted that the absence from duty could not be treated as gravest misconduct. In support of his arguments, learned counsel has placed reliance on State of Punjab vs. Jagtar Singh 2000 (3) SCT 177, wherein it was held that while passing the dismissal order, the length of service of the plaintiff was liable to be taken in consideration. In the said case, the plaintiff had put in about 22 years of service when he was dismissed from service. Plaintiff in the said case had remained absent from duty for 87 days, 13 hours and 15 minutes. Therefore, in the facts and circumstances of the said case, it was held that the absence of the plaintiff could not be treated as gravest misconduct. Learned counsel has further placed reliance on Ex.Constable Ranbir Singh vs. State of Haryana 1999 (2) SCT 58, wherein it was held that the plaintiff had put in more than 17 years of service and had absented for 344 days, so in view of Rule 16.2 of the Punjab Police Rules, 1934, dismissal from service was not the appropriate punishment. Punishment of compulsory retirement would rather meet the ends of justice. The said decision was given in a writ petition filed by the Constable challenging his termination order. Learned counsel has also placed reliance on State of Haryana vs. Lakhan Lal1991 (2) PLR 595, wherein it was held that while passing the dismissal order on the allegations of absence, the punishing authority was liable to take in consideration the length of R.S.A.No. 3197 of 1997 (O&M) 9 service of the employee. In the said case, the employee had rendered about 16 years of service before his absence. The following substantial questions of law arise in this case:- “(i) Whether the judgments and decrees passed by the Courts below are contrary to law ? (ii) Whether absence from duty is a gravest misconduct ? (iii) Whether the Civil Court can interfere with the dismissal order, if passed, after following due procedure of law?” In the present case, the plaintiff had joined as a Constable on 2.12.1986 and absented from duty in April, 1992. Chargesheet dated 28.3.1993 was served on the plaintiff qua his absence from duty. Enquiry Officer, gave his report dated 20.5.1993 that the plaintiff had remained absent from duty without informing his superiors. The plaintiff had duly participated in the enquiry proceedings. Thereafter, a show cause notice was served on the plaintiff. The plaintiff submitted his reply to the show cause notice and, thereafter, the impugned order of dismissal from his service was passed by the punishing authority. The jurisdiction of the Civil Court qua interference with the punishment order is very limited. The Civil Court was only required to see as to whether the punishing authority had passed the impugned order after following due procedure of law. The Civil Court cannot go into the merits of the case . So long as the finding of the punishing authority is based on some evidence collected during departmental enquiry then the Civil Court may not interfere with the R.S.A.No. 3197 of 1997 (O&M) 10 punishment order. Unless some defect is pointed out in the enquiry proceedings, the Civil Court cannot interfere with the punishment order. The finding recorded by the disciplinary authority is immune from interference within the limited scope of power of judicial review applicable to the Court. The plaintiff was a member of a disciplined force. Members of the police force are not expected to absent themselves from duty. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the police force. The plaintiff remained absent from duty for more than nine months. In the facts and circumstances of the present case, the absence of the plaintiff from duty, a member of a disciplined force, amounts to gravest misconduct. The Court cannot sit in appeal over the findings recorded by the Enquiry Officer as accepted by the punishing authority. The plaintiff had only worked for about 5 ½ years and had, thereafter, absented for more than nine months. The plaintiff was not entitled to claim pension at that stage. The misconduct committed by the plaintiff rendered him unfit for police service. Although the plaintiff was not allowed personal hearing before passing of the impugned order but the plaintiff had been issued a show cause notice and had submitted a reply to the same. Learned counsel for the respondent failed to convince me that the fact that personal hearing was not afforded to the plaintiff has caused any serious prejudice to the him. In a case where some procedural error has been committed by the punishing authority, the aggrieved party has to show that some prejudice has been caused to it on account of procedural lapse. The plaintiff had also not sought personal hearing while submitting his reply to the show cause notice. R.S.A.No. 3197 of 1997 (O&M) 11 In these circumstances, the dismissal order passed by the punishing authority was liable to be upheld. The appeal filed by the plaintiff against the dismissal order was dismissed being time barred. The judgements relied upon by learned counsel for the respondent are not applicable to the facts of the present case as these were based on their own facts. In the present case, the Civil Court could not interfere with the punishment order as the same had been passed after following due procedure of law and the misconduct committed by the plaintiff could be termed as gravest misconduct. The judgments and decrees passed by the Courts below, thus, run contrary to the settled proposition of law. The substantial questions of law that arise in this appeal stand answered accordingly. Hence, this appeal is allowed. The impugned judgments and decrees passed by the Courts below are set aside. Consequently, the suit filed by the plaintiff stands dismissed. (SABINA) JUDGE May 05, 2011 anita