IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2348 of 2005 Date of Decision: 5.3.2009 Parjinder Singh. ....... Appellant through Shri H.S.Gill, Senior Advocate with Shri K.B.S.Mann and Shri Vivek Goyal, Advocates. Versus The Punjab State and others. ....... Respondents through Shri N.S.Virk, Additional Advocate General, Punjab. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This appeal is directed against the judgments and decrees dated 22.5.2004 and 17.2.2005 passed respectively by the Additional Civil Judge (Senior Division), Kapurthala (hereinafter described as `the trial Court') and the District Judge, Kapurthala (referred to hereinafter as `the First Appellate Court') whereby the suit and the appeal of the plaintiff-appellant have been dismissed. The appellant filed a suit praying therein that order dated 8.5.1997 passed by the Senior Superintendent of Police, Jagraon (for short, the punishing authority') dismissing him from service, as also order dated R.S.A.No.2348 of 2005 -2- .... 27.8.1997 vide which Deputy Inspector General of Police, Ludhiana Range, Ludhiana (for brevity, `the appellate authority') dismissed his appeal and order dated 10.2.1998 of the Inspector General of Police, Punjab, whereby his revision was rejected, be declared as illegal, null & void, unconstitutional, discriminatory, mala fide, against the service rules, unjust, against principles of natural justice & ineffective and that he continues in service as Constable and was entitled to all rights, privileges and other service benefits. The appellant was appointed as Constable in Punjab Police on 16.11.1992. According to him, he fell ill on 19.7.1996 and after informing his superior, he went to Raikot town for medical help from where he was advised to go to Jalandhar for seeking expert medical treatment. It was averred by the appellant that after recovery, he joined duty on 13.8.1996, but he was again taken ill on 20.10.1996 and with the permission of his Station House Officer, went to Jalandhar for treatment and reported back on 6.11.1996. However, the aforesaid periods were treated as absence from duty without permission and an enquiry was conducted, which, according to him, was contrary to the provisions of law and violative of the principles of natural justice. In the said enquiry, the appellant was held guilty of the charges levelled against him and consequently, the punishing authority issued a show cause notice to him on 12.4.1997. A reply to the show cause notice was submitted by the appellant wherein he pleaded innocence, but the punishing authority found the same unsatisfactory and passed the order of dismissal on 8.5.1997 and it was also directed that the periods from R.S.A.No.2348 of 2005 -3- .... 19.7.1996 to 12.8.1996 and 20.10.1996 to 6.11.1996 be not treated as duty period. The appeal and the revision filed by the appellant were dismissed by the appellate and revisional authorities, compelling him to file the suit. It was also alleged that the reply submitted by the appellant was not considered at all and that the punishing authority, while passing the order of dismissal, took his previous conduct into consideration. Upon notice, the respondents appeared and filed their written statement denying the averments of the appellant. The factum of the appellant joining service on 16.11.1992 was admitted and it was stated that he was not a good police official and was a habitual absentee. The details of absence as pleaded in the written statement were as follows:- 1. From 17.5.1994 to 19.5.1994 = 3 days 2. From 8.5.1994 to 11.5.1994 = 4 days 3. From 15.6.1995 to 19.6.1995 = 4 days 4. From 30.7.1995 to 31.7.1995 = 2 days 5. From 17.8.1995 to 24.8.1995 = 7 days 6. From 24.10.1995 to 30.10.1995= 6 days 7. From 10.8.1995 to 12.8.1995 = 2 days 8. From 14.1.1996 to 16.1.1996 = 2 days 9. From 27.1.1996 to 28.1.1996 = 1 day Besides the above periods of absence which were treated as leave without pay, the appellant was stated to have remained absent from duty with effect from 18.11.1995 to 11.1.1996, i.e., for 55 days for which a regular departmental enquiry was conducted against him and his one year R.S.A.No.2348 of 2005 -4- .... approved service was forfeited by the punishing authority vide order dated 1.11.1996 and the period of absence was treated as non-duty period. The respondents also averred that the appellant had absented himself from 13.3.1996 to 30.3.1996, i.e., for 16 days, 18 hours and 10 minutes, which period was treated as non-duty period. It was denied that the appellant had gone for medical treatment during the periods of absence in question after informing his superiors and since his absence from duty was willful, an enquiry was got conducted in which an appropriate opportunity was given to him to plead his case and after following the entire procedure of law and taking into account the periods of absence from duty, the order of dismissal was passed. The orders by which his appeal and the revision were dismissed were also sought to be justified on the ground that the same were in conformity with the provisions of law. Both the parties went to trial on the following issues:- 1. Whether the order dated 8.5.1997, order dated 27.8.1997 and order dated 10.2.1998 are illegal, void, unlawful?OPP 2. If issue no.1 is proved, whether the plaintiff is entitled to the benefit of service?OPP 3. Whether the present suit is not maintainable in the present form?OPD 4. whether the court has no jurisdiction to try the suit?OPD 5. Relief. After appraisal of the evidence on record, the trial Court, as R.S.A.No.2348 of 2005 -5- .... also the First Appellate Court, came to the conclusion that the orders assailed by the appellant were passed after following the due process of law and after establishing the charges against him. Consequently, the suit and the appeal of the appellant were dismissed. This has resulted in the instant appeal by the appellant. Learned counsel for the appellant referred to the order of dismissal passed by the punishing authority to contend that the previous conduct of the appellant had been taken into consideration while passing the same even though the charge against him pertained to the periods from 19.7.1996 to 12.8.1996 and 20.10.1996 to 6.11.1996. He further contended that once the charge was limited to these periods, the previous conduct could not have been taken into consideration without the same being put to him and without affording him an opportunity to rebut the allegations of previous absence. To bring home this argument, learned counsel for the appellant relied upon a Division Bench judgment of this Court in the Inspector General of Police, Punjab Versus Balbir Singh, 1973 (2) S.L.R. 271, wherein it was observed in paragraph 10 as under:- “10. We feel that it is not necessary to decide this question for the simple reason that the order of the Inspector General of Police in revision cannot be maintained, because while dealing with the revision- cum- mercy petition, he took into consideration the so- called chequered service records of the petitioners which, as observed by the learned Single Judge, did not form part of the charge and was not gone into by the R.S.A.No.2348 of 2005 -6- .... Enquiry Officer and the petitioners were also not given any opportunity to meet this aspect of the case. Consequently, in view of the observations of their Lordships of the Supreme Court in K. Mache Gowda's case (supra) which were referred to in Amar Nath's case (supra), decided by the learned Single Judge, the two writ petitions had to be accepted and the revisional order of the Inspector General of Police had to be quashed. It would be open to the Inspector General of police to go into the whole question including the instructions of 1961 issued by the Inspector General of police, referred to above, and to decide once again not only about the misconduct of the two petitioners, but also about the proper punishment that is to be inflicted. The question, whether in the circumstances of the case, the departmental authorities could or could not arrive at the conclusion that the misconduct of which the petitioners were found to be guilty did or did not amount to gravest act of misconduct within the meaning of rule 16.2 of the Rules must be left open. Normally speaking, this court would be most reluctant to go into the question of the nature of the misconduct after the matter has been dealt with by the authorities, yet, there may arise a case where the conclusion arrived at is such that the same cannot possibly be maintained. However, as stated above, it is not necessary for us to decide this point in the present case, at this stage.” R.S.A.No.2348 of 2005 -7- .... It was further contended by the learned counsel for the appellant that in view of the law laid down in the aforementioned case, the suit of the appellant deserved to be decreed by setting aside the orders which were assailed therein. On the other hand, learned counsel for the respondents referred to the repeated absence of the appellant and contended that this amounted to gravest act of misconduct within the meaning of Rule 16.2 of the Punjab Police Rules (for short, `the Rules') and that such a person, who was given to absence from duty, could not be retained in the police force. That apart, it was contended that the proper procedure had been followed before the order of dismissal was passed. It was further submitted that the appellant did not avail of the opportunities given to him by the enquiry officer and also the officers, authorities concerned who passed the orders. Accordingly, it did not lie in the mouth of the appellant now to say that the principles of natural justice stood violated. To support his contentions/ submissions, learned counsel for the respondents placed reliance on State of U.P. And others Versus Ashok Kumar Singh and anothers, AIR 1996 S.C. 736 and Maan Singh Versus Union of India and others, (2003) 3 S.C.C. 464. In Ashok Kumar Singh's case (supra), it was observed in paragraph 8 of the judgment as under:- “We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court R.S.A.No.2348 of 2005 -8- .... failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that his absence from duty would not amount to such a grave charge. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that the punishment does not commensurate with the gravity of the charge especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out.” In Maan Singh's case (supra), their Lordships of the Apex Court in paragraph 11 of the judgment observed as follows:- “11. Relying on State of Punjab v. Ram Singh, Ex-Constable, (1992) 4 S.C.C. 54, one of the arguments advanced before us is that it is only in cases where the misconduct is of the gravest kind an order of dismissal shall be made. This case was decided in the context of Rule 16.2(1) of the Punjab Police Manual,1934, Vol.II. The said Rule reads as follows: `Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete R.S.A.No.2348 of 2005 -9- .... unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension.' After analysing the said provision, this Court in Ram Singh case,held that Rule 16.2(1) consists of two parts, firstly, dismissal shall be awarded for the gravest acts of misconduct and, secondly, cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The second part is referable to a misconduct which, by itself, may not warrant an order of dismissal and may be a ground to take a lenient view of giving an opportunity to reform and even after giving such opportunities, if the delinquent officer is proved to be incorrigible and found completely unfit to remain in service then in order to maintain discipline in the service appropriate punishments can be given. Therefore, when the charge against the appellants in each of these cases is habitual absence for long periods on several occasions unauthorisedly, the view taken by the disciplinary authority is justified.” I have thoughtfully considered the rival contentions and have gone through the whole record. A perusal of the judgment of the trial Court reveals that the R.S.A.No.2348 of 2005 -10- .... appellant was given sufficient opportunity to off-set the charges against him. The testimony of the appellant himself is revealing and the same has been noticed in paragraphs 8 and 9 of the judgment of the trial Court, which are extracted hereunder so as to understand with some clarity as to how the enquiry officer dealt with the matter:- “8. In his cross-examination, PW2 has stated that it is correct that departmental inquiry against him was conducted. He has further deposed that it is incorrect that charge sheet, list of documents, list of witnesses was supplied to him during the inquiry. But from the perusal of the inquiry file, it is clear that plaintiff has got recorded his statement on 7.1.1997, to the effect that he was supplied copy of charge sheet, copy of list of witnesses as per rules and list of witnesses on the inquiry file also bears the signatures of the plaintiff on 7.1.1997, to the effect that he received copy of list of witnesses on 7.1.1997. In his cross-examination, PW2 has stated that it is incorrect that he was given opportunity to cross-examine the witnesses during the inquiry. But from the perusal of inquiry file, it is clear that plaintiff has been given opportunity to cross-examine all the witnesses,though the plaintiff has not cross-examined the witnesses and plaintiff has signed all the pages on which evidence of the witnesses were recorded during the inquiry and he has put his signatures to the effect that he does not want to cross-examine the witnesses. In his R.S.A.No.2348 of 2005 -11- .... cross-examination, PW2 has admitted that it is correct that he was given show cause notice before passing the impugned order by S.S.P.Jagraon and he have reply to the show cause notice. PW2 has stated in his cross-examination that he was not given personal hearing by S.S.P. Jagraon before passing the impugned order. From the perusal of the show cause notice which is in the inquiry file, it is clear that in the show cause notice, plaintiff was directed to appear in person before S.S.P.Jagraon for personal hearing within 10 days from the service of show cause notice. From the perusal of impugned order passed by S.S.P. Jagraon dismissing plaintiff from the service it is clear that plaintiff did not appear in person before S.S.P.Jagraon for personal hearing. 9. Plaintiff has also examined Dr.Amarjit Singh as PW1, who has proved on the file medical certificate issued by him from 19.7.96,which is Ex.P1 and medical certificate issued for two weeks on 20.10.96, which is Ex.P2. In his cross-examination, PW1 has admitted that he did not appear before the inquiry officer during inquiry against Parjinder Singh plaintiff. PW1 has also stated that original record of his clinic regarding medical certificate and treatment given to the plaintiff was misplaced during renovation of his clinic during the year 1997.” The above extracted portion of the judgment of the trial Court R.S.A.No.2348 of 2005 -12- .... shows that the appellant himself left no room for doubt that sufficient opportunity was given to him to explain his conduct. It is apparent that the appellant was not interested in availing of the opportunities given to him by the enquiry officer to meet the allegations against him. In this view of the matter, the contention of the learned counsel for the appellant that the principles of natural justice have been violated simply because other material, i.e., the previous record was not put to the appellant, but which formed the basis of the order of dismissal, can hardly be termed to be a legitimate one. This has to be tested in view of the details of the repeated absence which were given in the written statement, which have been reproduced hereinabove. Even though the appellant denied the details of the absence in his replication, yet, he did not produce any evidence to show that the same were false. The conduct of the appellant during the course of enquiry was such that it amounted to virtual defiance of the proceedings. He did not even produce the medical evidence in support of his claim that he was ill and except for the mode of denial that he was in, there was no other evidence produced. The observations of the Apex Court made in Ashok Kumar Singh's case (supra) that a person belonging to the disciplined force is expected to adhere to certain norms, are, therefore, clearly attracted to the facts of this case and it cannot be said that the respondents either exceeded themselves or violated the principles of natural justice while basing their opinion on the previous conduct of the appellant. It is the prerogative of the employer to conclude whether he wishes to retain a person in service if he is proved to be a dead wood or not and especially in cases where the service of R.S.A.No.2348 of 2005 -13- .... a disciplined force is at stake, the standard of adherence to the norms of duty are much more challenging and demanding. On the basis of the above discussion, no infirmity is found in the findings recorded by the Courts below. No substantial question of law, therefore, arises for determination in this appeal, which is held to be without any merit and is dismissed. March 05,2009 ( Mahesh Grover ) “SCM” Judge