R.S.A NO.4087 OF 2002 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A NO.4087 OF 2002 (O & M) DECIDED ON : 24.08.2010 Umed Singh ...Appellant versus State of Haryana ...Respondent CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Parvinder Singh, Advocate and Mr. Harish Nain, Advocate, for the appellant. Mr. Gaurav Arora, AAG, Haryana. K. C. PURI, J. (ORAL) This is regular second appeal directed by plaintiff against judgment dated 12.08.2002 passed by Ms.Navita Singh, Additional District Judge, Karnal vide which appeal preferred by the plaintiff-appellant against the judgment dated 05.09.2000 passed by Dr.Abdul Majid, Civil Judge(Junior Division), Karnal, was dismissed. The plaintiff filed a suit for declaration challenging the order passed by Superintendent of Police, Karnal, DIG Rohtak Range, Rohtak regarding his dismissal. As per case of the plaintiff, he joined police department as Constable on 01.09.1965 and was posted at Police Station Gharaunda, District Karnal. On R.S.A NO.4087 OF 2002 (O & M) -2- 04.06.1992 at 5:25 P.M vide D.D.R No.22, MHC of Police Station Sadar, Karnal directed him to join the duty at Dhakwala check post in the jurisdiction of Police Station Sadar, Karnal. The plaintiff disclosed the MHC that he was sick but the latter did not pay any attention to his request. The plaintiff felt severe pain in his stomach and he straightway went to Rohtak and got treatment from Dr.Baljit Singh Suhag. He could not join his duty on 04.06.1992 at Police Station Sadar, Karnal due to his illness. After curing himself and on being satisfied, the Superintendent of Police, Karnal did not take any action against him. On 06.07.1992, he was again directed to join duty at Police Post, Lalupura but he had fever. He went to Dr.Baljit Singh Suhag who treated him as he was suffering from viral fever. Again he could not join his duty at Police Post Lalupura. He joined his duties on 01.08.1992. Superintendent of Police, Karnal ordered departmental inquiry of both the absences and vide his order dated 12.01.1993 , the service of plaintiff was dismissed in arbitrary manner, without adopting the mandatory provisions of Punjab Police Rules. Upon notice, defendants appeared and filed written statement taking preliminary objections to the effect that suit of the plaintiff is not maintainable in the present form; the suit is bad for non-service of notice under Section 80 CPC and is pre- mature. However, on merits, it is submitted that absence of the plaintiff on two occasions was willful on the part of plaintiff, R.S.A NO.4087 OF 2002 (O & M) -3- without seeking any permission to that effect. It is submitted that the plaintiff absented himself for a period of 35 days willfully. Therefore, action taken by Superintendent of Police, Karnal and DIG, Rohtak, vide which plaintiff has been dismissed, is quite legal and valid. Replication was filed wherein all the contents made in the written statement were denied and those contained in the plaint were reiterated. From the pleadings of the parties, following issues were framed by the learned trial Court : 1) Whether the impugned order dated 12.01.1993 is illegal, null and void and not binding upon the plaintiff ? OPP 2) Whether the plaintiff has no cause of action ? OPD 3) Whether the suit is not maintainable ? OPD 4) Whether the notice u/s 80 CPC is not valid ? OPD 5) Whether the suit of plaintiff is premature ? OPD 6) Relief. Again on 20.10.1995, the following issues were framed : 1) Whether the order dated 29.12.1994 is illegal, null and void ? OPP R.S.A NO.4087 OF 2002 (O & M) -4- 2) Relief. Plaintiff himself stepped in the witness box as PW-1 and examined HC Vir Bhan as PW-2 and closed the evidence. On the other hand, defendants examined Vir Bhan, CRC as DW-1 and closed the evidence. The learned trial Court, after appraisal of evidence, returned the findings on Issue No.1 against the plaintiff. Issues No.2 and 3 were decided in favour of the defendants and against the plaintiff. However, Issues No.4 and 5 were decided in favour of the plaintiff. In view of findings on Issues No.1 to 3, the suit of plaintiff was dismissed. Feeling dissatisfied with the above said judgment, the plaintiff preferred first appeal. The said appeal was dismissed vide judgment dated 12.08.2002 passed by Ms.Navita Singh, Additional District Judge, Karnal. Feeling dissatisfied with the judgment dated 12.08.2002 passed by Additional District Judge, Karnal and judgment dated 05.09.2000 passed by Civil Judge(Junior Division), Karnal, the plaintiff-appellant has preferred the present appeal. Learned counsel for the appellant has submitted that appellant has confined his prayer to convert the order of his dismissal to the order of his compulsory retirement. It is submitted that under the Rules 16.2, 16.22 and 16.25 of Punjab Police Rules, 1934, length of service should have been R.S.A NO.4087 OF 2002 (O & M) -5- considered. This Court in case “State of Punjab and others vs. Piara Singh” 2004 (3) SLR 336, converted the order of dismissal into compulsory retirement as length of service of 22 years was not considered in that case. It is submitted that in the present case, length of service of plaintiff was about 27 years and while granting punishment, the length of service has not been considered. Learned counsel for the appellant has relied upon “State of Punjab vs. Jagtar Singh” 2000 (3) SCT 177, “Mahipal Ex.Constable vs. State of Haryana and others” 1994 (4) SLR 311 and “Dhan Singh vs. State of Haryana and others” 2009 (2) SLR 40. Learned State counsel has submitted that the absence from duty for continuous two occasions is a gross misconduct. However, he was fair enough to concede that while awarding punishment, length of service has not been considered. From the submissions made by both the sides, the following substantial question of law has arisen in the present appeal : 1) Whether under Rules 16.2, 16.22 and 16.25 of Punjab Police Rules, 1934, the authorities should have considered the length of service while awarding punishment ? I have considered the submissions made by learned counsel for the parties and have gone through the records of the case. R.S.A NO.4087 OF 2002 (O & M) -6- The only point touched during the course of arguments by learned counsel for the appellant is that the length of service should have been considered while awarding punishment. Learned State counsel was fair enough to concede that length of service has not been considered while awarding punishment. The plaintiff joined the service as Constable in the year 1965 and the order of dismissal was passed on 05/12.01.1993. According to plaintiff, he has rendered 27 years of service and the same should have been considered at the time of awarding punishment. This Court in Piara Singh's case (supra) converted the punishment of dismissal in compulsory retirement where the Constable has rendered 22 years of service and the same was not taken into consideration while passing the dismissal order. So, relying upon the said authority, the substantial question of law stands answered in favour of the appellant to the extent that since length of service of plaintiff has not been considered. So in these circumstances, the order of dismissal is harsh and the same stands modified to the order of compulsory retirement from the service from 05/12.01.1993. In Jagtar Singh's case (supra) and Mahipal's case (supra), this Court has held that length of service should be considered while awarding punishment. The Division Bench of our own High Court in Dhan Singh's case (supra), myself and Justice Permod Kohli, J. have held that absence from duty can be on the basis of grevious R.S.A NO.4087 OF 2002 (O & M) -7- misconduct and has to be confined to the definition and as specified from Clause-I to VII in the explanation. However, since the plaintiff has not challenged the factum of his misconduct and as such, the said authority is not helpful to the appellant. In view of the above discussions, the appeal stands partly accepted. The judgment of both the Courts below stand modified. The order of dismissal dated 05/12.01.1993 stands converted to compulsory retirement from service w.e.f 05/12.01.1993. Decree sheet be prepared accordingly. A copy of the judgment be sent to the concerned Court for compliance. AUGUST 24, 2010 (K. C. PURI) shalini JUDGE