IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 544 of 2005 Date of Decision: 30.1.2009 Constable Paramjit Singh. ....... Appellant through Shri R.S.Bajaj,Advocate. Versus State of Punjab and others. ....... Respondents through Shri Ajaib Singh, Addl.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 Regular Second Appeal is directed against judgment and decree dated 23.9.2004 passed by the Additional District Judge, Amritsar (hereinafter described as `the First Appellate Court') whereby the judgment and decree dated 20.2.2003 of the Civil Judge (Junior Division), Amritsar (referred to hereinafter as `the trial Court') were set aside and the suit of the plaintiff-appellant was dismissed. The appellant, who was enrolled as Constable in the Police Department of the State of Punjab on 13.3.1989, faced enquiry proceedings for his absence from duty from 31.10.1992 to 31.3.1993. It was concluded in the enquiry that the appellant had remained absent from duty without any R.S.A.No.544 of 2005 -2- .... sufficient cause for a period of 151 days. He was dismissed from service vide order dated 22.6.1993 passed by the Commandant, 27th Battalion, Punjab Armed Police, Jalandhar Cantt. He filed an appeal against the order of dismissal as admissible under the Punjab Police Rules (for short, `the Rules'), which was also dismissed on 8.9.1998. The revision against the appellate order was dismissed by the concerned authority on 12.1.1999. The appellant then filed a civil suit on 25.5.1999 and prayed that the orders of his dismissed and those of the appellate authority and revisional authority be set aside as no reasonable opportunity had been granted to him to defend his case. He pleaded that the dismissal and the consequent orders are bad in the eyes of law. Reliance was placed on Rule 16.24 of the Rules to contend that no proper opportunity was granted to him before passing the order of dismissal. The respondents contested the averments made in the plaint by stating that the order of dismissal was validly passed and the appeal as well as the revision were also appropriately dismissed after following due process of law. It was pleaded that notice was served upon the appellant and summary of allegations, list of witnesses, copy of show cause notice were supplied to the appellant under his signatures. The enquiry officer conducted the proceedings and communicated the same after providing an opportunity to the appellant as is contemplated under Rule 16.24 of the Rules and since he had remained willfully absent from duty which was a finding recorded by the enquiry officer and which is a gravest misconduct under the Rules, the order of dismissal was perfectly valid. It was also R.S.A.No.544 of 2005 -3- .... pleaded by the respondents that the statements of the departmental witnesses were recorded in the presence of the appellant and he was provided full opportunity to cross-examine them, but he willfully failed to avail all those opportunities. After the findings recorded by the enquiry officer, the report was submitted to the punishing authority for passing final order, who passed the order of dismissal after serving show cause notice dated 5.6.1993 upon the appellant and he was asked to furnish his reply in writing. The respondents had averred that the appellant failed to submit his explanation to the show cause notice and did not appear before the punishing authority. Thereafter, the appellant was again given opportunity vide notice dated 15.6.1993, but he did not respond and it was only then that the punishing authority passed the order of dismissal against him. It was also averred that the appeal and the revision were rightly answered by upholding the order of dismissal. Both the parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to declaration as prayed for?OPP 2. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP 3. Whether the suit is not maintainable?OPD 4. Whether the suit is time barred?OPD 5. Relief. After appraisal of the entire evidence on record, the trial Court came to the conclusion that since the punishing authority had taken into R.S.A.No.544 of 2005 -4- .... consideration the past conduct of the appellant and opportunity of explanation regarding that conduct had not been afforded to him, the order of dismissal was bad in the eyes of law. Consequently, the suit was decreed. In appeal, the First Appellate Court reversed the findings of the trial Court by noticing the facts that the appellant had been granted sufficient opportunity and there was sufficient compliance of Rule 16.24 of the Rules. The suit was accordingly dismissed. Hence, this appeal. Learned counsel for the appellant has assailed the impugned judgment and decree by contending that no sufficient opportunity was granted to the appellant before passing the order of dismissal and that his previous conduct could not be taken into account while doing so. He once again placed reliance on Rule 16.24 of the Rules to support the case of the appellant and prayed that the judgment & decree of the trial Court may be restored. On the other hand, learned counsel for the respondents contended that sufficient opportunity had been granted to the appellant by issuing show cause notice after the enquiry officer found him guilty of misconduct and since he failed to respond, the punishing authority, on considering his absence from duty, the findings of the enquiry officer and noticing the fact that he belonged to a disciplined force where no leniency could be shown, rightly dismissed him from service. He submitted that the First Appellate Court has committed no error in upsetting the judgment of the trial Court. R.S.A.No.544 of 2005 -5- .... I have thoughtfully considered the respective contentions and have gone through the record. Concededly, the appellant was absent from duty for almost 151 days. The enquiry officer, after conducting proper enquiry, had found him guilty of misconduct. Thereafter,when the report was submitted to the punishing authority, notices were issued to the appellant twice on 5.6.1993 and 15.6.1993 asking him to show cause as to why action should not be taken against him. The appellant did not respond to the notices and he also did not appear before the punishing authority. There is no justification offered as to why the appellant did not avail of the opportunity which was granted to him. Denial of an opportunity and refusal to avail an opportunity are two distinct concepts. The appellant has not been able to substantiate whether no opportunity was granted to him. Rather, the facts establish a case to the contrary. Twice over the punishing authority issued notices to the appellant which he failed to respond to without any cogent explanation. In this view of the matter, when sufficient opportunity was granted to him, the appellant cannot raise the plea that principles of natural justice have been violated. Besides, the punishing authority was right in observing that the appellant belongs to a disciplined force and can not take liberty of remaining absent from duty for an inordinate long time without any sufficient cause. The contention of the learned counsel for the appellant that the previous conduct of the appellant could not have been taken into R.S.A.No.544 of 2005 -6- .... consideration as no opportunity was granted to him defend that conduct, does not merit acceptance. Even if the previous conduct of the appellant was to be ignored, even then there is no cogent explanation for remaining absent for 151 days. Therefore, the findings recorded by the First Appellate Court cannot be termed to be perverse so as to warrant interference in the Second Appeal. There is no substantial question of law which arises for answering in this appeal and the same is accordingly dismissed, being without any merit. January 30,2009 ( Mahesh Grover ) “SCM” Judge