1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2734 of 1998 Date of decision: 18.8.2009 State of Punjab and others … Appellants Versus Balkar Singh … Respondent Present: Mr. B.S. Sra, Addl. AG Punjab, for the appellant-State. Mr. Sudeep Mahajan, Advocate, for the respondent. … ARVIND KUMAR, J: The present appeal is by defendant-State of Punjab directed against the judgment and decree of the Courts below whereby the suit of the plaintiff for declaration has been decreed. As per the case of the plaintiff Balkar Singh, he was enrolled as Constable in the Police Department. Thereafter, he was subjected to a departmental enquiry on the allegation that while posted in Police Lines, Majitha, he was found absent from duty wilfully from 20.1.1993 to 13.2.1993, 19.2.1993 to 28.2.1993 and 14.3.1993 to 3.6.1993. Later, vide order dated 22.9.1993, he was dismissed from service with effect from the same date. His appeal against the said order was also dismissed by the Inspector General of Police, Border Range, Amritsar. Hence, the suit. Upon notice of the suit, the defendants defended their action in passing the impugned order. On appreciation of evidence on record, the trial Court vide judgment and decree dated 7.10.1996 decreed the suit of the plaintiff for declaration to the effect that impugned order dated 22.9.1993 passed by the Senior Superintendent of Police, Majitha, is illegal and void and that the plaintiff continues to be a Constable as on or before 22.1.1993. Feeling 2 aggrieved, the defendants preferred an appeal which was dismissed by the first appellate Court vide judgment and decree dated 23.10.1997 but with a slight modification in para 15 of the judgment and decree of the trial Court that date 22.9.1993 be read for the dates 22.2.1993 and 22.1.1993. Now, the second appeal by the defendant-State of Punjab. Counsel for the parties have been heard. There has been a consensus that the question which arises for determination is that whether continued absence of the plaintiff- respondent, a Constable in the Punjab Police, could be regarded as gravest act of misconduct within the meaning of Rule 16.2(1) of the Punjab Police Rules, 1934 (for brevity, the Rules) and whether it is mandatory for the disciplinary authority to look into the incorrigibility, 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 the service of 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 unfit for police service. The respondent-plaintiff, in the instant case, had remained absent from 20.1.1993 to 13.2.1993, 19.2.1993 to 28.2.1993 and from 14.3.1993 to 3.6.1993 i.e. for a total period of 2 months 22 days and 17 hours. The said absence is within a short span of period. He was enrolled as Constable in the year 1989. However, there is no previous record of his having remained absent and indulging in any mis-conduct. Giving consideration to the length of service, the right of pension is inherent under Rule 16.2 itself and thus, it cannot be ignored. He though may have put in less than 5 years of service but as held in Mahipal Ex.Constable Vs. State of Haryana 1994(4) SLR 3 311, mere non-entitlement of pension will not deprive the delinquent of consideration to the length of service by the Punishing Authority while awarding severest punishment of dismissal from service. The disciplinary authority having failed to adhere to the rules while not taking into consideration the right to pension, length of service and incorrigibility, is certainly prejudicial to the interest of the delinquent i.e. respondent-plaintiff as is settled law 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. In this back drop of the facts, the learned Courts below have rightly set aside the order of dismissal. In view of the above, the instant appeal is partly allowed and the judgments and decrees passed by the Courts below are modified to the extent that the matter is remitted back to the disciplinary Authority with a direction to hold a fresh enquiry and to pass fresh orders keeping in view the rules referred to above, within three months from the date of receipt of certified copy of this judgment. The Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar, 1993(6) Judgment Today SC-1, has observed that whenever the Court sets aside an order of punishment and orders reinstatement, the question whether the employee would be entitled to back wages from the date of dismissal to the date of his reinstatment, if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. In view of this, it is ordered that the payment of arrears of salary and consequential benefits be kept in abeyance and be decided by the disciplinary Authority at the time of giving decision. Appeal stands disposed of accordingly. The parties to bear their own costs. (ARVIND KUMAR) August 18 , 2009 JUDGE Jiten