CIVIL WRIT PETTION NO.15065 OF 1993 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JUNE 29, 2010 Narender Singh .....Petitioner VERSUS State of Haryana and 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. Arun Jain, Sr.Advocate with Mr. Amit Jain, Advocate, for the petitioner. Mr. D. S. Nalwa, Addl.A.G., Haryana, for the State. **** RANJIT SINGH, J. The petitioner, a Constable with Haryana Police, has filed this writ petition to impugn his order of dismissal from service. He would allege that the dismissal was ordered without affording any reasonable opportunity to him during the course of enquiry held in this case. The petitioner was enrolled as Constable on 20.4.1982 and thereafter remained posted at various places. He claims to have received various commendation certificates and copies of two such CIVIL WRIT PETTION NO.15065 OF 1993 :{ 2 }: certificates have been annexed with the petition. During the year 1991, the petitioner was posted at Police Station, Fatehabad, District Hisar and had remained absent between January 1991 and August 1991. The petitioner would attributed this to his illness as he suffered from pain in the abdomen and was statedly diagnosed as suffering from typhoid. The petitioner accordingly would aver that he could not attend to his duties for a period of about four months as he remained under treatment for the said illness. The respondents, however, treated the petitioner as willfully absent from duty and consequently issued him a charge sheet on 20.10.1991. Copy of the charge sheet is at Annexure P-4. Thereafter, the enquiry was directed against the petitioner. The petitioner had produced two witnesses before the Enquiry Officer in support of his illness but could not produce two doctors from his native village, who had treated him. The petitioner, however, had placed on record the medical certificates issued by the said doctors. On the basis of the evidence, the Enquiry Officer upheld the charge of absence as proved. Respondent No.3 agreed with the finding of the Enquiry Officer and issued a show cause notice to the petitioner proposing the punishment of dismissal from service. The petitioner would plead that this was in violation of the procedure as laid down in Rule 16.24 (1) of the Punjab Police Rules. On these lines, the petitioner submitted a detailed reply and after considering the same, the impugned order of dismissal was passed on 2.4.1992. The appeal filed by the petitioner was rejected by the Deputy Inspector General of Police and accordingly the petitioner CIVIL WRIT PETTION NO.15065 OF 1993 :{ 3 }: has filed the present writ petition to challenge the order of his dismissal as well as the order, whereby his appeal was rejected. The respondents have contested the claim made in the petition. In the written statement filed, it is pointed out that the petitioner had remained absent for the period from 29.1.1991 to 6.2.1991, 22.2.1991 to 23.2.1991, 18.3.1991 to 2.7.1991 and then from 28.7.1991 to 11.8.1991 without any leave or permission or lawful excuse. It is also pointed out that the petitioner had not submitted any medical certificate for his absence nor had sought any permission or leave and accordingly he was marked as absent. The respondents would also point out that the petitioner had given in writing before the Enquiry Officer that he did not wish to examine Dr.Raj, MBBS of Ballabgarh and Dr.Chander Pal of his village and that he would make his written defence by way of statement, which he never submitted despite several opportunities. It is further stated that the Enquiry Officer as well as the Punishing Authority had followed the rules strictly. The respondents would, thus, justify the impugned order of dismissal. The respondents would point out that the misconduct on the part of the petitioner would definitely constitute a gravest act of misconduct for which he could be dismissed from service. As per the stand of the respondents, the petitioner was habitual absentee and did not make any effort to reform himself in any manner. I have heard the counsel for the parties. The primary contention raised on behalf of the petitioner is that the misconduct alleged against the petitioner could not be classified as a gravest act of misconduct within the meaning of CIVIL WRIT PETTION NO.15065 OF 1993 :{ 4 }: 16.2 (1) of the Punjab Police Rules. In this regard, reference is made to the observations made by the Hon'ble Supreme Court in the case of The State of Punjab and others Vs. Ram Singh, Ex.Constable, 1992 (3) RSJ 508. In this case, the Hon'ble Supreme Court has observed that the rule consists of two parts and while considering the rule, observed as under:- “The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness of police service and that the length of service of the offender and his claim for pension should be taken into account in any appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct of minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale may be a ground to take lenient view of giving an opportunity to reform. Despite giving such opportunities if the delinquent officer proved to be incorrigible and found complete unfit to remain in service than to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re-employment, if any, may meet the ends of justice. Take for instance the delinquent officer is inhabitually absent from duty when required. Despite CIVIL WRIT PETTION NO.15065 OF 1993 :{ 5 }: giving the opportunity to reform himself he continues to remain absent from duty off and on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of service and his claim to pension he may be compulsorily retired from service so as to enable him to earn proportionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word `or' cannot be read as “and”. It must be disjunctive and independent. The common link that connects both clauses is “the gravest act/acts of misconduct.” On the other hand, counsel for the respondents would refer to Rajesh Kumar Vs. State of Haryana and others, 2005 (3) SCT 512 to contend that in a disciplined Force like Police, the absence, that too repeatedly, would certainly be an act of gravest misconduct, for which the respondents were justified in imposing the punishment of dismissal. Whether absence alone would constitute a gravest act of misconduct, thus, would be question requiring consideration in this case. An act of absence that too for a considerable period without obtaining any prior permission or getting any leave sanctioned in a disciplined Force like Police, can certainly be viewed differently than such an act of absence on the part of employee not working in a Force like Police or other para-military Forces. No doubt, CIVIL WRIT PETTION NO.15065 OF 1993 :{ 6 }: it would depend upon fact situation in each case to see if the mere act of absence would amount to a gravest act of misconduct or not but record of the case of the petitioner, if seen, would show that he had been absenting himself repeatedly. When a person working in a disciplined Force like Police remains absent, that too repeatedly, without getting any leave sanctioned, it is possible to view that he is incorrigible. The Hon'ble Supreme Court in the case of State of Punjab & Ors. Vs. Mohinder Singh, 2005(12) S.C.C. 182 did not approve the view expressed by this Court in holding that single act of remaining absent without leave would not amount to gravest act of misconduct on the part of Police Constable, who had remained absent from duty for five months. This was so stated while dealing with Rule 16.2 of Punjab Police Rules. The Supreme Court also viewed that that the Constable being member of a disciplined Force, could not be permitted to remain absent without taking leave and that too for a long period. Similar view was expressed by the Hon'ble Supreme Court in State of U.P. Vs. Ashok Kumar Singh, AIR 1996 Supreme Court 736. An act on the part of Police Constable who remained absent from duty without leave, was held amounting to grave misconduct. The Supreme Court also observed that the High Court had exceeded its jurisdiction while interfering with the quantum of punishment as being not commensurate with the gravity of the charge after concurring with the finding of facts. As held in Ram Singh's case (Supra), the word `misconduct' though can not be given a precise definition, but its reflection was said to receive its connotation from the context, the delinquency in its performance and its effect on discipline and the nature of duties. The word CIVIL WRIT PETTION NO.15065 OF 1993 :{ 7 }: `misconduct' was said to include similar act as well as repeated acts. In Maan Singh Vs. Union of India and others, AIR 2003 Supreme Court 1800, the Supreme Court viewed that cumulative effect of continued misconduct proving incorrigibility and complete unfitness for Police service emerges into gravest act of misconduct. Where an officer despite opportunity does not show any reform, it amounts to incorrigibility and complete unfitness for Police service. In this case also, the charge against the police employee was of habitual absence for a long period on several occasions unauthorisedly and accordingly the view taken by the Disciplinary Authority was held justified in dismissing such an employee. Nearer home, Division Bench of this Court in Jagdev Singh Vs. State of Punjab, 2002 (1) SCT 496, held that unauthorised absence from duty for more than 147 days was a gravest act of misconduct and the Court would not interfere in the quantum of punishment. In this case, the Court rejected the prayer made to substitute the punishment of dismissal to that of compulsory retirement. It is observed that this question is also no more res integra and was answered by various judgments and in this regard reference was made to judgement in the case of Ex.Constable Satnam Singh Vs. State of Punjab, 1996 (4) SCT 130 (P&H). The relevant observations are as under:- “The jurisdiction of the Court of enter upon into such controversy is a very limited one. For the services to which the petitioner belongs, discipline and obedience is one of the basic ingredients which defines the nature of duties of the petitioner. The conduct of the petitioner is CIVIL WRIT PETTION NO.15065 OF 1993 :{ 8 }: certainly not worthy of any concession. The authorities in their wisdom and in the interest of the service have passed the impugned order which to our mind does not suffer from any legal infirmity. Once the enquiry is properly held and satisfied the afore-stated principles of imposition of punishment would primarily fall in the domain of the disciplinary authority. Except in rare of rarest cases the Courts may not be inclined to interfere on the quantum of punishment simplicitor. In this regard reference can be made to the recent judgment of the Supreme Court in the case of N.Rajarathinam v. State of Tamil Nadu and another, 1996(4) SCT 599 (SC): JT 1996 (8) S.C. 477 wherein it was held as under:- “If all the relevant facts and circumstances and the evidence on record are taken into consideration and it is found that the evidence establishes misconduct against a public servant, the disciplinary authority is perfectly empowered to take appropriate decision as to the nature of the findings on the proof of guilt. Once there is a finding as regards the proof of misconduct, what should be the nature of the punishment to be imposed is for the disciplinary authority to consider.” Reference can also be made to the case of Amin Chand, Ex.Cook 3/25 Vs. The State of Haryana and others, 2007 (5) SLR 296, Satish Kumar Vs. State of Haryana, 2001 (4) SCT 237 and Pirthi Pal Singh Vs. State of Haryana, 2000 (2) SCT 68. The petitioner could be termed as incorrigible considering CIVIL WRIT PETTION NO.15065 OF 1993 :{ 9 }: the manner in which, he had remained absent on different occasions. Repeated absence on his part would tend to belie his stand that he was suffering from illness. If the petitioner was ill, he could not have joined duties then again to become absent without leave. Initially, the petitioner absented w.e.f. 29.1.1991 to 6.2.1991 but joined duties on duty upto 22.2.1991. The petitioner again absented from 18.3.1991 to 2.7.1991 and thereafter reported for duty to again absent w.e.f 28.7.1991 to 11.8.1991. As per the impugned order, the petitioner had absented from duty w.e.f. 4.12.1991 and did not turn up even while his disciplinary proceedings were in progress and were in process. Accordingly, the respondent authority passed the impugned order on 2.3.1992, when he was still absent from duty. It can, thus, be easily said that the petitioner was incorrigible and had been habitual in absenting himself and, thus, was unfit for performing duties in a disciplined Force like Police. The State counsel is justified in saying that unauthorised absence by police officer can be considered to be a gravest act of misconduct. In this regard, reference can be made to view expressed in a large number of cases referred to above. Having regard to the facts and circumstances in this case, I am not inclined to accept the submissions made by learned counsel for the petitioner that the misconduct on the part of the petitioner could not be termed as a gravest act of misconduct to invite dismissal. The facts and circumstances in this case would show that the petitioner was habitual in absenting from duty repeatedly. He left his duties even when the process of disciplinary action was in progress against him. It can, thus, be easily stated that CIVIL WRIT PETTION NO.15065 OF 1993 :{ 10 }: the petitioner had no remorse and was incorrigible. Since the petitioner had less then 10 years of service, there was no question of his being considered for grant of any pension or pensionary benefits for considering his case for award of any lesser punishment. There is, thus, no merit in the writ petition and the same is accordingly dismissed. June 29, 2010 ( RANJIT SINGH ) khurmi JUDGE