IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2844 of 1996 Date of decision: 31.3.2009 State of Punjab & others … Appellants. Versus. Harmeet Singh … Respondent THE HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. B.S. Sra, DAG Punjab, for the appellant Mr. K.G.Chaudhary, Advocate for the respondent … ARVIND KUMAR, J: The present appeal is by the defendants directed against the judgment and decree of the first appellate Court whereby on acceptance of appeal of the plaintiff, the judgment and decree of the trial Court dismissing the suit has been set aside thereby declaring the dismissal order dated 26.3.1991 as illegal, void and inoperative against the rights of the plaintiff and resultantly, the plaintiff has been held entitled to all consequential benefits accruing on account of setting aside of the dismissal order.. Plaintiff, Harmeet Singh, in his suit pleaded that he joined as Constable in the Punjab Armed Police, Jalandhar Cantt., in April, 1986, and was allotted No. 259 in 7th Batallion, Jalandhar Cantt. On account of his good work, he was granted IInd Class certificates by the Deputy Inspector General of Police, P.A.P., Jalandhar Cantt. Further, vide orders dated 12.3.1987 and 6.12.1988 besides a cash reward in the sum of Rs.50/-. As per the case of the plaintiff, on 8.7.1990, he proceeded on leave for 7 days and as such, was to return on 19.7.1990; however, could not do so and was thus, marked absent. He reported back for duty after remaining absent for 37 days, 9 hours and 30 minutes. On account of such absence, an enquiry RSA No. 2844 of 1996 -2- was held against him in which the Inquiry Officer held him guilty of the charges and finally, the Punishing Authority vide order dated 26.3.1991 dismissed the plaintiff from service. Plaintiff thus in his suit sought declaration to the effect that the dismissal order dated 26.3.1991 is illegal, void and inoperative against his rights on the ground that the disciplinary Authority while passing the dismissal order did not apply its mind to the length of service rendered by him and also did not record a finding to the effect the act committed by him amounted to gravest misconduct. He also stated that the dismissal order was passed without affording him an opportunity of hearing and thus, was violative of principles of natural justice. Upon notice of the suit, the defendants defended their action and stated that the dismissal order was passed after holding a departmental enquiry and after granting full opportunity to the plaintiff to defend himself. Trial Court vide its judgment and decree dated 20.9.1993 dismissed the suit of the plaintiff. However, on an appeal preferred by the plaintiff, the judgment and decree of the trial Court has been set aside by the first appellate Court vide its judgment and decree dated 27.5.1996 and resultantly, the suit of the plaintiff stands decreed in the manner indicated above. Hence, the present appeal by the defendants. Counsel for the respondent-plaintiff has raised one legal proposition. The argument is that disciplinary Authority in the impugned order of dismissal in the end has treated the period of absence of 37 days 9 hours and 30 minutes as leave without pay and after regularization of the period of absence, charge of absence from duty does not survive. The question thus, arises is whether treating of the period of absence as leave without pay does amount to condonation of absence. Counsel for the respondent has referred to a decision of this Court in State of Punjab v. Chanan Singh(dec.) reptd. by his L.Rs, 1988(2) CLJ (C,Cr. & Rev.) 21, followed in State of Punjab and others v. Baldev Singh in RSA No. 2271 of 1996 decided on 19.9.2008, wherein the ratio of Chanan Singh's case (supra) was duly followed and reference was also made to a judgment of the Hon'ble Supreme Court in State of Punjab and others v. Bakshish Singh, 1998(5) SLR 625. The contention is meritless. This issue is no more res integra. Chanan Singh's and Bakshish Singh's cases (supra) have been discussed by the Hon'ble Supreme Court in Maan Singh v. Union of RSA No. 2844 of 1996 -3- India and others, (2003) 3 Supreme Court Cases 464, and in the light of 3-Judge Bench decision rendered in State of M.P. v. Harihar Gopal, 1969 SLR 274 (SC), has over-ruled the judgment in Chanan Singh's case (supra) and observed that Bakshish Singh's case(supra) was decided in a different context and thus, reiterated the decision in Harihar Gopal's case (supra) wherein this issue was thoroughly discussed and it was observed : “ The order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the respondent and for regularising his absence from duty.” It was further observed : “ We are unable to hold that the authority after terminating the employment of the respondent intended to pass an order invalidating the earlier order by sanctioning leave so that the respondent was to be deemed not to have remained absent from duty without leave duly granted.” Thus, the contention in this regard stands repelled. From the record, no inference can be drawn that the principles of natural justice were not complied with during the course of enquiry. The next question that arises for consideration is whether plaintiff-respondent's absence for about 38 days could be regarded as gravest act of misconduct proving incorrigibility and unfitness for police service warranting dismissal or whether it is mandatory to look into the length of service and claim of pension at the time of awarding punishment. Rule 16.2(1) of the Rules provides for dismissal for the gravest act of misconduct or for the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. Under the first part of the rule, gravest act of misconduct entails dismissal whereas under the second part of the rule, cumulative effect of continued misconduct also invites penalty of dismissal. However, in both the cases, incorrigibility and unfitness for police service has to be established. It also provides that in making such award, regard shall be had to the length of service of the RSA No. 2844 of 1996 -4- offender and his claim to pension. The act of having remained absent from duty is not considered as “gravest misconduct” as it does not fall within the purview of Explanation appended to Rule 16.2 of the Rules. However, it definitely is an act which constitutes misconduct and the cumulative effect of such misconduct also makes a police officer incorrigible and unfit for police service. Respondent-plaintiff in the instant case had remained absent for about 38 days. There is nothing in the order that such absence is an act of misconduct of the gravest nature and there was a cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. Giving consideration to the length of service, right to pension is inherent under Rule 16.2. However, his length of service and claim of pension was not kept into consideration while passing the impugned order. The impugned order is thus, not sustainable and is hereby set aside. In view of the above, the appeal is partly allowed, the judgment and decree of the first appellate Court is modified and the matter is remitted back to the disciplinary Authority with a direction to pass a fresh order keeping in view the Rules referred to above, within three months from the date of receipt of certified copy of this judgment. Reinstatement and consequential benefits be kept in abeyance, to be decided by the disciplinary Authority at the time of giving decision. Parties to bear their own costs. ( ARVIND KUMAR ) March 31, 2009 JUDGE JS I have heard learned counsel for the parties. The question which arises for determination in this appeal is whether absence of the plaintiff-respondent, who is a constable in the Punjab Police, for about 8 days could be regarded as gravest act of misconduct proving incorrigibility and unfitness for police service warranting dismissal and whether it is mandatory for the disciplinary Authority to look into the length of service and claim of pension at the time of awarding punishment. Rule 16.2(1) of the Rules provides for dismissal for the gravest act of misconduct or for the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. Under the first part of the rule, gravest act of misconduct entails dismissal whereas under the second part of the rule, cumulative effect of continued misconduct also invites penalty of dismissal. However, in both the cases, incorrigibility and unfitness for police service has to be established. It also provides that in making such award, regard shall be had to the length of service of the offender and his claim to pension. The act of having remained absent from duty is not considered as “gravest misconduct” as it does not fall within the purview of Explanation appended RSA No. 271 of 1994 -3- to Rule 16.2 of the Rules. However, it definitely is an act which constitutes misconduct and the cumulative effect of such misconduct also makes a police officer incorrigible and unfit for police service. Respondent- plaintiff in the instant case had remained absent for about 8 days though he also remained absent during the course of enquiry due to which the enquiry was concluded ex-parte. However, there is no previous record of his having remained absent or indulging in any misconduct. He has already put in 12 years of service. No rule has been brought to the notice of this Court that he is not entitled to any pensionary benefits for rendering about 12 years of service. Giving consideration to the length of service, the right to pension is inherent under Rule 16.2 itself and thus, it cannot be ignored. The disciplinary Authority having failed to adhere to the rules while not taking into consideration the right to pension, is certainly prejudicial to the interest of the delinquent i.e. respondent-plaintiff as it is settled law that when a relevant provision is given go by, it amounts to arbitrary exercise of power and therefore, the order of dismissal would not be sustainable. Accordingly, the same is hereby set aside. In the afore-mentioned circumstances, ordinarily, the case is required to be remitted back to the disciplinary Authority to consider the matter afresh but as already noticed, in the present case the dismissal order had been passed in the year 1983, meaning thereby that about 26 years have elapsed and therefore, in such a situation, as held by the Hon'ble Supreme Court in Harjit Singh and another v. The State of Punjab and another, 2007(4) SLR 645, the Court is competent to fix the quantum of punishment. Keeping in view the facts and circumstances of the case and in particular having regard to the passage of time, punishment of compulsory retirement will meet the ends of justice. If otherwise eligible, the respondent-plaintiff would be entitled to retiral benefits, along with interest at the rate of 6 per cent per annum from the date of filing of suit till the date of actual payment. Let the needful be done within two months from the date of receipt of copy of this order. The present appeal stands partly allowed in the manner indicated above. March 27, 2009 ( ARVIND KUMAR ) JS JUDGE JS