CIVIL WRIT PETITION NO. 11725 OF 2011 :{ 1 }: THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 08, 2011 Surender Singh .....Petitioner VERSUS The State of Haryana & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.R.N.Lohan, Advocate, for the petitioner. **** RANJIT SINGH, J. Having been recruited as Constable in the Haryana Police, the petitioner was deputed to work in C.I.D., Haryana. During the course of his employment, he was promoted to the post of Sub Inspector in C.I.D and was deputed to work as Gunman with the Ex.Chief Minister. Upon the change of Government, the petitioner was ordered to be reverted to his substantial rank of Constable. The petitioner would term this as his victimization due to change of Government. As per the petitioner, due to this humiliation and CIVIL WRIT PETITION NO. 11725 OF 2011 :{ 2 }: disturbed state of mind, he proceeded on 7 days leave on medical ground on 29.7.2005. He could not report back on 5.8.2005 as he was under treatment. The petitioner claims to have intimated to Incharge, Police Line, on 26.1.2006. Still, departmental enquiry was initiated against him on 21.2.2006 for being absent from duty. As per the petitioner, no notice was served upon him. The Enquiry Officer held an exparte proceedings and upon completion thereof, a notice was served upon the petitioner, imposing punishment of dismissal from service. This time, the petitioner responded to the notice by submitting reply on 3.1.2007.Without considering the submissions made by the petitioner, he was dismissed from service on 15.1.2007. His appeal was rejected on 31.8.2007 and so was the fate of his revision, which was dismissed on 27.3.2008. The petitioner had then filed a mercy appeal, which was dismissed on 10.6.2010 and has now filed the present writ petition to impugn the order of his dismissal and subsequent order, whereby his appeal and revision were rejected. Learned counsel for the petitioner would submit that the petitioner has nearly 18 years of service to his credit and the punishment of dismissal as awarded to him is disproportionate and would be contrary to Rule 16.2 of the Punjab Police Rules (for short, “the Rules”). The counsel would also contend that absence can not be treated as a gravest act of misconduct to call for extreme penalty of dismissal and the impugned order, thus, can not be sustained, being in violation of Rule 16.2 of the Rules. Examination of complete facts and background of the CIVIL WRIT PETITION NO. 11725 OF 2011 :{ 3 }: case would leave a different picture. This is not a one isolated case of absence, which is for some insignificant period. The petitioner had remained absent for over 515 days. This was also not the first instance, when the petitioner has so absented himself. The apparent reason for this absence appears to be the action of the respondents in reverting the petitioner to his substantive rank. Having proceeded on 7 days casual leave, the petitioner never reported back. The grievance raised about holding the enquiry exparte is also entirely misconceived and projected in a wrong manner. Once the petitioner had remained absent, the enquiry was ordered and notice for appearance was sent at the home address of the petitioner on 28.2.2006 through Head Constable Narinder Singh. It was then reported that the petitioner was living in Krishna Colony, Jind, for the last many years. The notice was then sent to his new residential address through ASI Dhara Singh. His brother was found present, who refused to accept the copy of notice by disclosing that the petitioner had gone to Gurgaon. Thereafter, notice was sent at his address on 29.4.2006 through ASI Dhara Singh. This time the copy of the notice was served on Smt.Ved Kaur, mother of the petitioner. Smt.Ved Kaur had returned the copy of notice, mentioning that her son had gone out and she would convey the message to him, when he would return. The Enquiry Officer thereafter prepared summary of allegations and the list of witnesses, which was again served upon the defaulter on 16.5.2006 through Head Constable Ram Niwas. This time Smt.Ved Kaur refused to receive the notice. Yet another notice was sent on 27.5.2006 through Dhara Singh but mother of the CIVIL WRIT PETITION NO. 11725 OF 2011 :{ 4 }: petitioner refused to receive the same. Yet, another attempt was made to serve the petitioner by sending a notice through Head Constable Mohinder Singh on 6.6.2006. He also came back and reported that the mother of the petitioner had refused to receive the notice. Still, message was sent through S.H.O., Police Station, Jind, for the petitioner to appear before the Enquiry Officer at 9 A.M on 27.6.2006 but the petitioner did not put in appearance. The Enquiry Officer thereafter reported the matter to the Superintendent of Police of the District and sought permission to hold ex-parte enquiry. It is in this background that ex-parte enquiry was held and witnesses examined. Thus, it is not possible to urge that ex-parte enquiry was held in any unfair manner. It is primarily because of the fault and non- cooperative attitude of the petitioner that the enquiry had to be completed ex-parte. Even attempt had been made to serve the approved charge sheet at the home address of the petitioner but the wife of the petitioner, who was found present, had declined to receive the same. The person like the petitioner can not be permitted to hijack the disciplinary proceedings and the system in this manner. After completing the enquiry, the Enquiry Officer submitted an enquiry report. A show cause notice thereafter was sent to the petitioner at his home address, proposing the punishment of dismissal. The family members of the petitioner still refused to receive the copy of this notice. The copy of the show cause notice thereafter was pasted on the main gate of the house of the petitioner in the presence of Municipal Councillor, Ward No.15 and resident of Krishna Colony, Jind. The petitioner still did not submit any response CIVIL WRIT PETITION NO. 11725 OF 2011 :{ 5 }: and thereafter another notice was served upon him through SI Santosh Devi. This notice was also refused and was pasted on the main gate of the house. The petitioner had thereafter reported to police line on 2.1.2007 after having remained absent for a period of 515 days. He had then submitted a written reply to the show cause notice. The petitioner was also afforded an opportunity of personal hearing, where he only pleaded that his absence was not intentional. Finding this plea to be false and unreliable, the same was rejected. It has rightly been observed that if the petitioner really had been under treatment for any sickness, his family members would not have refused to accept the notices and could well intimate this fact to the Enquiry Officer and seek opportunity to present evidence. The defence, as projected, was, thus, rejected. In fact, the petitioner had earlier been punished for absence on as many as 17 occasions as per the following details:- “1. 9.8.91 to 10.8.91, i.e. two days decided as LWP vide OB No.422/91. 2. 25.1.93 to 27.1.93 i.e. 2 days decided as LWP vide OB No.127/93. 3. 5.4.92 to 11.4.92 and 23.8.92 to 25.8.92 i.e. 8 days decided LWP vide OB No.218/93. 4. 15.9.92 to 19.11.92 i.e. 6 days half pay leave vide OB No.240/93. 5. 20.11.92 to 20.1.93 i.e. 62 days decided as LWP vide OB No.240/93. 6. 4.5.93 to 8.5.93 i.e. 5 days decided as LWP vide OB CIVIL WRIT PETITION NO. 11725 OF 2011 :{ 6 }: No.263/93. 7. 21.5.93 to 25.5.93 & 29.5.93 i.e. 5 days decided as LWP vide OB No.288/93. 8. 15.6.93 to 16.8.93 i.e. 62 days decided as LWP vide OB No.508/93. 9. 24.10.93 to 29.10.93 i.e. 5 days decided as LWP vide OB No.402/94. 10. 2 & 3.11.2003, 15 & 16.11.93, 12.12.93, 9.1.94 to 16.1.94 i.e. 11 days decided as LWP vide OB No.259/93. 11. 1.8.96 to 20.8.96 i.e. 20 days decided as LWP vide OB No.283/93. 12. 25.4.96 to 21.5.96 i.e. 26 days decided as LWP vide OB No.16/97. 13. 29.12.96 to 6.1.97 i.e. 8 days decided as LWP vide OB No.165/97. 14. He was awarded punishment of stoppage of five future increments with permanent effect vide OB No.218/93 for his willful absence from duty for the period of 160 days in between 3.2.92 to 23.2.92, 5.4.92 to 11.4.92, 23.8.92 to 25.8.92, 9.9.92 to 20.1.93. 15. He was awarded a punishment of censure vide OB No.305/93 for his absence from duty. 16. He was awarded punishment of censure vide OB No.357/05 for his absence from duty. 17. He was awarded punishment of censure vide OB CIVIL WRIT PETITION NO. 11725 OF 2011 :{ 7 }: No.547/93.” This would clearly give out the attitude of the petitioner towards the service. The petitioner was rightly found willfully absent from duty from 5.8.2005 to 2.1.2007 and considering his previous record, he was termed as `willful absentee'. The Punishing Authority found this act of prolonged absence from the Force to be gravest act of misconduct. In support, reference was made to a decision of this Court in Civil Writ Petition No.2049 of 1999 (Bishan Singh Vs. State of Haryana) where this Court has viewed that absence from duty of a Member of a disciplined Police Force is to be treated to be the gravest act of misconduct and sufficient to award punishment of dismissal from service. The Punishing Authority had also considered the provisions of Rule 16.2 of the Rules to observe that the petitioner had not completed a pensionable service and also that his service record was not satisfactory and, thus, he would not be entitled to avail pensionary benefits. Finding this to be a gravest act of misconduct and the petitioner being incorrigible, he was found to be unfit for being retained in the police service. The view taken by the Punishing Authority would be just and reasonable and would not suffer from any legal infirmity to call for interference. The writ petition is accordingly dismissed in limine. July 08, 2011 ( RANJIT SINGH ) khurmi JUDGE