CWP No.8408 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 15.2.2010 Bharat Mittar (deceased) through Lrs ...Petitioners VERSUS State of Haryana & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.MS Khaira, Sr. Advocate with Mr.DS Randhawa, Advocate for the petitioners Mr.RS Kundu, Addl.A.G., Haryana Permod Kohli, J. (Oral) The petitioner was appointed as Constable in the Police Department on 24.6.1974 by the Superintendent of Police, Rohtak. He was dismissed from service on account of some misconduct by Superintendent of Police vide his order dated 24.4.1985. The appeal preferred by the petitioner before DIG, Gurgaon was dismissed on 30.11.1985 and the revision petition filed CWP No.8408 of 1993 2 before the Director General of Police, Haryana was also rejected on 12.6.1986. The petitioner filed CWP No.4398 of 1986 challenging the orders of dismissal from service alongwith dismissal of appeal and revision petition. The aforesaid writ petition also stood dismissed as premature. The petitioner filed a civil suit on 6.12.1986 which was also dismissed on 6.12.1988. The petitioner preferred a civil appeal dated 18.1.1989 before the Additional District Judge, Rohtak which was allowed by setting aside the judgment and decree passed by the trial court and the orders of dismissal from service and dismissal of appeal and revision petition were also set aside, vide his judgment and decree dated 8.1.1990. The aforesaid judgment and decree of the first appellate court became final as no appeal has been filed before the High Court. The petitioner was served with another show cause notice dated 13.3.1990 (Annexure P-1) by respondent no.3 wherein he was again ordered to show cause why action against him be not taken on the basis of an earlier enquiry dated 8.11.1983. By this very show cause notice, the petitioner was also ordered to be taken back in service. The petitioner submitted a detailed reply to the aforesaid show-cause notice. However, respondent no.3 passed a more or less verbatim order dated 20.4.1990 (Annexure P-3) as was passed earlier on 24.4.1985 thereby again dismissing the petitioner from the service on the basis of the earlier evidence recorded against which appeal and revision was set aside by the learned Additional District Judge CWP No.8408 of 1993 3 vide his order dated 8.1.1990. The said order (Annexure P-3) was challenged in CWP No.5893 of 1991. The aforesaid writ petition was disposed of by this court on 22.4.1991 giving liberty to the petitioner to file appeal against the said order. The petitioner submitted an appeal dated 28.5.1991 before respondent no.2. However, the appeal of the petitioner was rejected by respondent no.2 vide his order dated 2.1.1992 (Annexure P-7) which is under challenge in this writ petition. The petitioner has tried to explain the charges made against him. However, the main point on which this petition has been argued is the non- consideration of provisions of Rule 16.2, particularly Explanation appended thereto, of the Punjab Police Rules. It is conceded to by the learned counsel for the parties that a Division Bench of this Court has considered a similar matter in CWP No.1309 of 2008 decided on 26.5.2008 wherein it has been observed as under:- “The petitioner’s misconduct for remaining absent on two occasions has been established. Even if the act of the petitioner is not considered as “gravest misconduct” as it does not fall within the purview of Explanation appended to rule 16.2, it definitely is an act which constitutes misconduct. There are at least two acts of misconduct. Cumulative efffect of misconduct also makes a Police Officer CWP No.8408 of 1993 4 incorrigible and unfit for police service. However, the authorities have not applied their mind and not taken into consideration the length of service of the petitioner and his right to pension while awarding the punishment. It has been stated by the petitioner in ground (c ) of this petition that he has rendered 11 years 9 months service. No rule has been brought to our notice that the petitioner 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 authorities having failed to adhere to the rule while awarding punishment renders the impugned order of punishment illegal and unwarranted. It is also settled law that when a relevant provision is given go by, it amounts to arbitrary exercise of power and such an order is not sustainable. In view of the above circumstances and for the above reasons, we set aside the impugned order of punishment dated 27.8.2003 (Annexure P-2), CWP No.8408 of 1993 5 the order dated 22.6.2004 (Annexure P-5) passed by the Appellate Authority and the order dated 20.8.2005 passed by the Revisional Authority and direct the Disciplinary Authority to reconsider the question of punishment to be awarded to the petitioner, keeping in view service rendered by him i.e. 11 years and 9 months and his right to pension and take into consideration these factors and thereafter a fresh order of punishment be passed. Let fresh order be passed within a period of three months of the receipt of a certified copy of this order. However, the order of reinstatement shall remain in abeyance till fresh consideration is accorded and will depend upon the outcome of the fresh consideration.” In this view of the matter, this petition is disposed of with a direction to the respondents to consider the case of the petitioner, in view of observations of the Division Bench in the aforesaid writ petition. (PERMOD KOHLI) JUDGE 25.3.2010 MFK CWP No.8408 of 1993 6