R.S.A. No. 901 of 2000(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 901 of 2000(O&M) Date of decision: 24-8-2010 State of Punjab and others ......... Appellants Vs Partap Singh Constable No. 1704/Asr .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. J.S.Sandhu, Assistant Advocate General, Punjab for the appellants Mr. Navkiran Singh, Advocate for the respondent HARBANS LAL, J. This appeal is directed against the judgment/decree dated 24.9.1999 passed by the court of learned Additional District Judge, Amitsar whereby he dismissed the appeal filed by the State of Punjab and others against the judgment/decree dated 2.1.1995 rendered by the court of learned Sub Judge Ist Class, Amritsar whereby he decreed the suit of the plaintiff for declaration to the effect that the impugned order No. 349/91 dated 2.2.1991 passed by defendant No.3 is ineffective and inoperative being unconstitutional, illegal and void and the plaintiff should be deemed to be in continuing service of the defendants and is entitled to receive salary and emoluments which have not been paid to him since 12.2.1991 and for mandatory injunction directing the defendants to permit the plaintiff to perform his duties as constable in the police department. The basic terra-firma with brevity is that the plaintiff was R.S.A. No. 901 of 2000(O&M) 2 posted as constable in the Punjab Police. On 21.6.1989 in the evening hours, he went out in the bazar for shopping with due permission of his incharge and fell in the grip of serious fever. He informed his incharge about his illness and took leave. After getting first aid, he joined his family at his home in the village. The members of his family took him to be mentally sick on account of high fever, which affected his head. He could not get proper medical treatment because of illiteracy in the family and was subjected to the treatment of quacks. He became normal with the passage of time and reported for duty, but he was not allowed to resume the same on one pretext or the other. He was served with a show cause notice to which he submitted his reply. The defendant No.3 without applying mind properly dismissed him from service vide impugned order dated 12.2.1991. The enquiry is alleged to have been conducted at his back and the same is illegal as no opportunity to defend himself and to cross-examine the witnesses was afforded to him. The defendants in their joint written statement, while controverting the averments embodied in the plaint, have inter alia pleaded that the suit is not maintainable and the same is premature as the plaintiff has not availed the departmental remedies. On merits, it has been admitted that he was enrolled as temporary constable w.e.f. 29.3.1974. As alleged, he was habitual absentee during the period of service. He was dealt with departmentally for remaining absent w.e.f. 21.6.1989 onwards without any leave or permission from the competent authority. During the departmental proceedings, he was afforded full opportunity to defend his case, but he did not bother to join the same, as a result of which, exparte proceedings were R.S.A. No. 901 of 2000(O&M) 3 held against him. On the pleadings of the parties, the following issues were framed:- 1. Whether the order No. 349/91 dated 2.2.91 passed by defendant no.3 is illegal, null and void?OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the suit is premature?OPD 4. Whether no cause of action has accrued to the plaintiff to file the present suit?OPD 5. Whether the plaintiff is entitled for the declaration with consequential relief as prayed for?OPP 6. Relief After examining the evidence and hearing the learned counsel for the parties, the learned trial Court decreed the suit as noticed at the outset. Feeling aggrieved therewith, the State of Punjab and another went up in appeal, which was dismissed by the court of learned Additional District Judge, Amritsar. Being dissatisfied therewith, the defendants have carried appeal to this court. Vide order dated 29.7.2002, the same was dismissed by this court. Being aggrieved therewith, the State of Punjab and others approached the Hon'ble Supreme Court. Vide order dated 14.7.2004, the Civil Appeal No.4078 of 2004 (arising out of S.L.P. No. 1598 of 2003) was accepted by the Hon'ble Supreme Court setting aside the judgment passed by this court and remanded back the case to this court for disposal in accordance with law and the observations made therein. The following substantial questions of law arise for R.S.A. No. 901 of 2000(O&M) 4 determination in this appeal:- 1. Whether an employee can be dismissed on the allegation of being absent from duty, after the period of unauthorized absence has been treated as leave of the kind due? 2. Whether the order of dismissal has been passed in violation of rule 16.2 of the Punjab Police Rules 1934? I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. J.S. Sandhu, learned Assistant Advocate General, Punjab has submitted with a good deal of force that the plaintiff-respondent was a habitual absentee during the period of service. He was afforded full opportunity by the enquiry officer to defend his case, but he did not bother to join the same and as its consequence, exparte proceedings were held against him. The learned courts below have gravely erred in holding that granting leave to the plaintiff-respondent by the punishing authority amounts to regularization of period of absence and that it has not been mentioned in the order of dismissal that the impugned order is passed due to gravest act of misconduct of the plaintiff-respondent. The disciplinary authority has taken into consideration all the facts and circumstances before forming the opinion regarding gravest act of misconduct of the plaintiff- respondent. Therefore, mentioning of these words in the order of dismissal is not required. To tide over these submissions, Mr. Navkiran Singh learned counsel for the plaintiff-respondent pressed into service that a glance through the impugned order would reveal that it has not been passed in R.S.A. No. 901 of 2000(O&M) 5 adherence to the provisions of Rule 16.2 of Punjab Police Rules. He further canvassed at the bar that the plaintiff-respondent is in continuous service since 12.3.2003 and he has also been promoted as Head Constable. He is to superannuate in 2013. He has relied upon Narinder Kumar Vs. State of Haryana and others 1995(4) Service Cases Today 222, Dhan Singh Vs. State of Haryana and others 2008(3) Service Cases Today 816, Shri Bhagwan Lal Arya Vs. Commissioner of Police Delhi and Others 2004 (3) Judgments Today 384, The State of Punjab Versus Parkash Chand 1992(1) Punjab Law Reporter 36, State of Punjab and others Vs. Nirmal Singh 2002(4) Service Cases Today 1038 and State of Haryana Vs. Lakhan Lal 1991(2) Punjab Law Reporter 595. On giving a deep and thoughtful consideration to the rival contentions, the view I am disposed to take is that submissions made on behalf of the defendants-appellants are unsustainable for the discussion to follow hereunder:- The Hon'ble Supreme Court while remitting the case to this court has observed as under:- “However, learned senior counsel appearing for the respondent contended assuming for the sake of argument that the judgment of Bakshish Singh (supra) did not apply to the facts of the case even then the finding of the trial court and first appellate court is also based on violation of Rule 16.2, the High Court ought to have considered the non-compliance of the said rule which the High Court has failed to do. It is true the High Court did not discuss this aspect of the R.S.A. No. 901 of 2000(O&M) 6 matter while dismissing the said appeal. Therefore, we think it appropriate that the judgment of the High Court should be set aside and the matter be remanded back to the High Court with a direction that the High Court should frame appropriate questions of law as required under Section 100 CPC and consider the arguments of the State whether the judgment of this Court in Bakshish Singh (supra) would still apply inspite of the subsequent judgment of this Court in Maan Singh as well as Channan Singh (Supra). The Court will also consider whether there was any non-compliance of Rule 16.2 of Punjab Police Rules and if so, what is the effect thereof before finally deciding the appeal before it.” The operative part of the impugned order dated 12.2.1991, which finds place at page 73 of the trial Court's record reads as under:- “ I have gone through the reply of the defaulter minutely. The main plea taken by the defaulter is that he has not been afforded any opportunity to defend himself and to cross-examine the witnesses. This plea of the defaulter is totally wrong and baseless and is concocted one, because during departmental proceedings he was afforded maximum opportunity by the enquiry officer to defend him but he did not bother to join the same as a result of which ex-parte proceedings were held against him. Therefore, I do not agree with his reply. He deserves the proposed punishment. Therefore, as proposed in show cause notice, I order to dismiss Constable Partap Singh R.S.A. No. 901 of 2000(O&M) 7 No.1704 from service w.e.f. 12.2.91 A.N. His period of absence i.e. since 21.6.89 is treated as leave without pay.” In paragraph No.5 of the judgment rendered in The State of Punjab and others Vs. Charanjit Singh (2003) 8 Supreme Court Cases 458 it has been observed as under:- “In State of PunjabV.Bakshish Singh which was relied upon by the courts below in holding that the misconduct stood condoned, was explained in Mann Singh. No law has been laid down in Bakshish Singh to the effect that only in the event, leave without pay is directed to be granted while passing an order of punishment, the leave having been regularized the order of punishment also becomes bad in law and void ab initio. While deciding Bakshish Singh this court had not taken into consideration an earlier binding precedent in State of M.P. V. Harihar Gopal wherein it has clearly been stated that such an order is passed only for the purpose of regularizing the leave and thereby the effect of punishment is not wiped out. In Mann Singh it was held that the period of absence when treated as leave without pay, was with a view to regularise the leave and not for condonation of misconduct.” In paragraph No.11 of the judgment delivered by the apex court in Mann Singh Vs. Union of India and others (2003) 3 Supreme Court Cases 464 it has been observed as under:- “Relying on State of Punjab & Ors. vs. Ram Singh Ex- Constable, 1992 (4) SCC 54, one of the arguments R.S.A. No. 901 of 2000(O&M) 8 advanced before us is that it is only in cases where the misconduct is of 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 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 analyzing the said provision, this Court in Ram Singh's 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 R.S.A. No. 901 of 2000(O&M) 9 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.” Reverting back to the instant one, on examining the facts, the judgment of the apex court rendered in State of Punjab Vs. Bakshish Singh (1998) 8 Supreme Court Cases 222 hardly applies to this case. Each case has to be examined on its own facts. In other words, each case represents its own facts. In this case, the allegations against the plaintiff- respondent are that he was found absent on 21.6.1989 vide D.D.R. No. 84. It has no where been depicted in the impugned order that the plaintiff- respondent had unauthorizedly absented himself from duty on earlier occasions as well. In view Mann Singh's case (supra), the period of absence of the plaintiff-respondent with effect from 21.6.1989 treated as leave without pay does not condone the act and misconduct, but it merely regularizes the leave. In Mann Singh's case (supra), it has been laid down in categoric and candid terms that when the charge against the appellants in each of these cases is habitual absence for long periods on several occasions unauthorizedly, the view taken by the disciplinary authority is justified. In the case at hand, there is no such charge against the plaintiff-respondent. Herein this case, the absence from duty at the best can be described to be a stray incidence. The plaintiff Partap Singh while appearing as PW-1 has solemnly affirmed that “On 21.6.89 I went for shopping in the bazar. I met with S. Karnail Singh, member panchayat of village in Hall bazar. I do not know for what purpose he came there. I fell down in the bazar due to giddiness. I do not know where he took away to me. When I came back to R.S.A. No. 901 of 2000(O&M) 10 my senses I found myself in a the Police Lines. No medicine was provided to me at the police lines. Said Karnail Singh informed the duty officer and took me to my village. After that I came back to report back on duty but I was not allowed to join the duty. I was brought to Baba Ajit Singh, Ojaha for treatment, who treated the so called possessed by evil spirits.” In the opening sentence of his cross-examination he has testified that “ I fell ill on 21.6.89.” A meticulous perusal of his cross-examination would reveal that it has no where been suggested to him that in fact he had not fallen on the said date in the bazar due to giddiness or that Karnail Singh had not informed the duty officer nor took him to his village or that he did not come back to report for duty. It is an accredited rule of evidence that in the absence of cross-examination on any fact in the examination-in-chief, such fact shall be deemed to have been admitted to be correct by the adversary. If we go by this proposition, the above facts have been admitted by the defendants- appellants. Ajit Singh Baba PW-2 has stated that “I know the plaintiff Partap Singh. About five years back his parents used to bring him to me for treatment. I gave the treatment of tantrik to the plaintiff for about 1 ½ /2 years and after that the plaintiff became all right with my treatment. During childhood also he used to have this attack.” This evidence further goes to show that the plaintiff has undergone tantrick treatment given by this witness. There is nothing on the record to belie the above facts extracted from the statement of the plaintiff. In view of his statement, it will have to be presumed that he being under mental disorder during the period of his alleged absence, was rendered unable to join his duty. It has been manifested in plain words in the language of Rule R.S.A. No. 901 of 2000(O&M) 11 16.2(1) Punjab Police Rules, 1934 that in making award for dismissal from service, regard shall be had to the length of service for the offender and his claim to pension. In State of Punjab and others Vs. Ram Singh Ex- constable 1992(4) Supreme Court Cases 54 relied upon in Mann Singh's case, it has been 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 from police service and the length of service of the offender and his claim for pension should be taken into account in appropriate case. To my mind, the expression “in making such an award regard shall be had to the length of service of the offender and his claim to pension” employed by the Legislature in Rule 16.2(1) ibid, applies to the cases covered by both the abovementioned parts. It is own case of the defendants-appellants that the plaintiff-respondent had joined the police department as a temporary constable with effect from 29.3.1974 and had worked under the supervision of various officers. It implies that on 21.6.1989 when he absented from duty for the first time, he had put in more than 15 years of service. There being no charge of habitual absence for long periods on several occasions unauthorizedly against the plaintiff- respondent, the rule laid down in Mann Singh's case (supra) is not fully applicable to the plaintiff-respondent's case. It was thus imperative upon the punishing authority to have considered the length of service of the plaintiff- respondent apart from his claim to pension, while passing the impugned order, which as would be apparent on the face of it, is absolutely silent on this aspect. It thus goes a long way in proving that without applying his R.S.A. No. 901 of 2000(O&M) 12 mind independently to the facts of the plaintiff-respondent's case, the punishing authority has slapped the impugned order upon the plaintiff- respondent. A combined reading of Rule 16.2(1) as well as the impugned order would bring out that the latter is not in conformity with the former. In Narinder Kumar's case (supra) , in paragraphs 11 and 12, the Division Bench of this court has observed as under:- “11. If we examine the impugned order of punishment in the light of the principle laid down by the Supreme Court and this Court, it becomes clear that though the disciplinary authority has held the petitioner guilty of gravest act of misconduct, it has not adverted to the service record of the petitioner before imposing the extreme penalty of dismissal from service. The disciplinary authority has also not considered the question as to whether the petitioner could be awarded a lesser penalty like compulsory retirement. It is not altogether insignificant to note that by the time order of dismissal was passed against the petitioner, he had completed almost 12 years of service and it is his specific case that during the period of 12 years, no punishment had been awarded to him and no adverse report had been made against him. Clean record of 12 years of service could not have altogether been ignored by the disciplinary authority while imposing the extreme penalty of dismissal from service. 12. This non-consideration of the past record of the petitioner and non-application of mind to the provisions of rule 16.2 by R.S.A. No. 901 of 2000(O&M) 13 the disciplinary authority has resulted in injustice to the petitioner and therefore the order of punishment deserves to be quashed.” Adverting to the present one, if the matter is looked in the background of above observations, there can be no escape from the finding that the non-consideration of the past record of the plaintiff-respondent and non-observance of provisions of Rule 16.2 by the punishing authority has resulted in miscarriage of justice. There is no gainsaying the fact that after the incidence of absence, the plaintiff-respondent has been continuously working in the department to the satisfaction of his superiors since 2003. So much so, he has since been promoted to the rank of Head Constable. Arguendo, the learned counsel for the State could not point out any complaint of subsequent absence from duty against the plaintiff-respondent after 2003. In Dhan Singh's case (supra), the Division Bench of this court has held that punishment of dismissal on a delinquent official can be imposed for the gravest act of misconduct or even the cumulative effect of continued misconduct. In both the cases, incorrigibility and unfit for police service has to be proved. If the matter in hand is viewed in the light of these observations, it was obligatory upon the defendants-appellants to prove that the plaintiff-respondent was incorrigible and unfit for police service, but there is no such mention in the impugned order. To add further to it, the defendants-appellants have not adduced even an iota of evidence supportive of incorrigiblity or unfitness of plaintiff for police service. In Satnam Singh's case (supra), while interpreting Rule 16.2 ibid, this court observed that mere description of various acts of absence and punishments by the R.S.A. No. 901 of 2000(O&M) 14 punishing authority will not satisfy the requirement of the Rule unless a specific finding is recorded holding the delinquent to be guilty of gravest misconduct and being incorrigible and consideration to length of his service and right to pension. In Parkash Chand's case (supra), the Division Bench of this Court has held that “distinction has to be drawn between the word misconduct and gravest misconduct used in the rules. It is essential for the punishing authority to apply its mind and record specific finding as to whether the complained conduct of the delinquent official was the gravest conduct requiring his dismissal from service. In the absence of such findings punishment cannot be sustained. It is further observed that mere absence from duty without leave would not amount to gravest misconduct.” In the light of these observations, mere absence of the plaintiff-respondent from duty without leave would not amount to gravest misconduct and that being so, the draconian or harsh punishment of dismissal could not be inflicted upon him. Again in Nirmal Singh's case (supra), it has been held by this court that punishing authority while passing an order of dismissal must record his finding as to whether act of misconduct of the employee is such of grave nature that leads to his dismissal. In Lakhan Lal's case (supra) it has been held by this Court that dismissal under Rule 16.2(1) of Punjab Police Rules without recording findings that act of misconduct proved the employee completely unfit for police service, the order of the punishing authority is bad in law. In view of this consistent view, it is held that the plaintiff-respondent could not be dismissed from service merely because of his absence from duty. Accordingly, the first substantial question of law stands answered in favour of the plaintiff-respondent and against the R.S.A. No. 901 of 2000(O&M) 15 defendants-appellants. It is further held that the impugned order of dismissal has been passed in violation of Rule 16.2 of the Punjab Police Rules, 1934. Thus, the second substantial question of law is decided in favour of the plaintiff-respondent and against the defendants-appellants. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. Since the main appeal has been decided, all pending Civil Miscellaneous if any, also stands disposed of. (HARBANS LAL) JUDGE August 24, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No