In the High Court of Punjab and Haryana at Chandigarh ...... R.S.A. No.2071 of 1997 ..... Date of decision:5.8.2011 State of Punjab and others .....Appellants v. Ex-Constable Jasbir Singh .....Respondent .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ...... Present: Mr. Ranbir S. Chauhan, Deputy Advocate General, Punjab for the appellants. Mr. S.C. Pathela, Advocate for the respondent. ..... Mohinder Pal, J. This regular second appeal has been filed by the State of Punjab (appellants-defendants) against the judgment and decree dated 16.12.1996 passed by the learned Additional District Judge, Patiala whereby the appeal filed by the plaintiff-respondent against the judgment and decree dated 13.6.1995 passed by the learned Sub Judge IInd Class, Patiala has been allowed. The facts of the case are that the plaintiff (respondent herein) R.S.A. No.2071 of 1997 [2] was working as a Constable in the Punjab Police. He was posted on guard duty of the Deputy Commissioner, Patiala. He remained absent from duty from 11.11.1987 to 30.1.1989 i.e. one year, 2 months and 21 days and a departmental inquiry was initiated against him, under the orders of Additional Superintendent of Police. The Additional Superintendent of Police appointed an Inspector as an Inquiry Officer to inquire into the matter, who framed a charge-sheet. The same was approved by the Additional Superintendent of Police. The respondent did not participate in the inquiry in spite of receiving summons and the Inspector held ex parte proceedings and submitted his report. A show cause notice was also served on him by the Senior Superintendent of Police, but neither he replied to the same nor he put in appearance before the Senior Superintendent of Police. The services of the respondent were dismissed vide impugned order dated 25.1.1989 passed by the Senior Superintendent of Police. The appeal before the DIG, Patiala and revision petition before the DGP/Inspector General of Police filed by the respondent were dismissed vide orders dated 8.5.1989 8.7.1991 respectively. In the civil suit filed on 5.1.1994, he alleged that the impugned orders were illegal and void on the ground that the Additional Superintendent of Police was not the punishing authority of the plaintiff- respondent. Therefore, neither he was competent to appoint Inquiry Officer nor to frame charge-sheet. It was contended that the charge-sheet was required to be framed by the punishing authority himself and Inquiry Officer was also required to be appointed by that authority. It was also pleaded that Inspector is not a superior Officer, therefore, he was not competent to hold an inquiry against the plaintiff-respondent. An ex parte inquiry was held R.S.A. No.2071 of 1997 [3] and no efforts were made to serve the plaintiff-respondent. Copy of the inquiry report was also not supplied to the plaintiff-respondent. It was also pleaded that the order of the punishing authority as well as orders of the appellate authority and revisional authority were non-speaking orders. The absence from duty is not the gravest act of misconduct. Therefore, dismissal from service was disproportionate punishment and was liable to be set aside. The suit has been contested by the defendants (appellants herein) on the ground that the impugned order was passed by the competent authority. The Superintendent of Police, Headquarters/ Additional Superintendent of Police and Senior Superintendent of Police are equal in rank and any one of them can pass the order in case of misconduct of a Constable. It was also pleaded that while holding inquiry against the plaintiff-respondent proper procedure was followed. Process was served upon the plaintiff at his home address. He did not appear despite repeated adjournments as he was absent from duty. Therefore, he was proceeded against ex parte and inquiry was held in his absence. The plaintiff- respondent neither submitted reply to the show cause notice nor appeared in person for personal hearing despite grant of sufficient time to him. The respondent abstained from appearance before the Inquiry Officer and finally it had been submitted that full opportunity was given to the respondent during inquiry and the impugned order was legal and valid. The appeal and the revision petition filed by him were rejected by the competent authorities. From the pleadings of the parties, the trial Court framed as many as nine issues, however, the main issues whether the inquiry against the plaintiff was not ordered by competent authority and whether the orders R.S.A. No.2071 of 1997 [4] of S.S.P., Patiala & DIG Patiala Range Patiala and DGP are not speaking orders were decided against the respondent which were reversed in the appeal by the learned Additional District Judge, Patiala and hence this present regular second appeal. I have heard Mr. Ranvir S. Chauhan, learned Deputy Advocate General, Punjab appearing for the appellants and Mr. S.C. Pathela, Advocate, learned counsel appearing for the respondent. Learned counsel for the appellants argued that the Superintendent of Police, Headquarters was competent to order departmental inquiry against the respondent but the first appellate Court accepted the appeal of the respondent without considering the facts of the case. The first appellate Court had not taken into consideration the gravest misconduct of the plaintiff of his remaining absence from duty for a period of one year, two months and 21 days from 11.11.1987 to 30.1.1989. Learned counsel relied upon the judgment of this Court in State of Punjab v. Sham Singh, 1992 (5) SLR 543 vide which it has been held that single act like drinking on duty and absence from duty can be considered as the gravest act of misconduct. It was further held that the Police service is a disciplined service and it requires maintaining strict discipline, laxity in this behalf creates indiscipline in service causing serious affect in the maintenance of law and order. He further relied upon the judgment of this Court in Chanan Pal v. State of Haryana, 1993 (2) SLR 256, wherein it has been held that act of absence from duty on the part of Police personnel amounts to an act of gravest misconduct which could be dismissed. He further contended that according to Rule 12.1 of the Rules, the appointing R.S.A. No.2071 of 1997 [5] authority of a Constable is Superintendent of Police. He relied on the judgment of this Court in SI Manohar Lal's case, AIR 1987 SC 201 that the appointing authority is the authority as mentioned in the Police Rules. Under Rule 12.1, the word `Superintendent of Police' is mentioned and there is no mention of S.S.P. rank. Learned counsel further contends that the appeal of the plaintiff has been accepted by the first appellate Court only on technical ground and no liberty has been given to the appellants to initiate fresh departmental inquiry against the plaintiff-respondent, therefore, the findings recorded by the first appellate Court has caused grave miscarriage of justice. On the other hand, learned counsel for the respondent argued that only authority to award punishment to the plaintiff-respondent was Senior Superintendent of Police, which was even not disputed by the appellants. He argued that due to non-compliance with the provisions of Rule 16.24(1)(i) of the Rules, the inquiry proceedings were vitiated. He further argued that the action was initiated against the plaintiff-respondent by the Additional Superintendent of Police/Headquarters who was not in- charge of the District. Therefore, said authority was not competent to initiate disciplinary action/proceedings against a Constable. He further contends that the punishment of dismissal was disproportionate to the misconduct attributed to the respondent, as the absence from duty was not the gravest act of misconduct. Learned counsel for the respondent placed reliance on the judgments of this Court in Baldev Singh v. The Secretary to Govt. Punjab, Rehabilitation Department, Chandigarh and others, 1969 Cr.LJ 625 and Ex. HC Mohinder Singh v. State of Haryana, 1999 (4) SCT 307 and of the Supreme Court in State of Punjab v. Constable Sarwan R.S.A. No.2071 of 1997 [6] Singh, 1997 (1) SCT 277. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties and perused the records. From the perusal of the records, I am of the opinion that the judgment and decree of the first appellate Court are not sustainable in law. It was not disputed that the respondent had remained absent from duty for a period of one year, two months and 21 days and he had not sent any intimation to his superior officers, particularly, when he was not suffering from some serious ailment or such a problem which could prevent him from intimating his superior officers in this regard. Being a Constable, he was a member of disciplined force. He was required to maintain strict discipline and laxity in this regard creates indiscipline in the service causing serious affect in the maintenance of law and order. Thus, it is not expected from a person like him that he could remain absent from years together from duty that is too without any intimation. This has rightly been considered as the gravest misconduct also by the Supreme Court in State of Punjab v. Sham Singh (supra). Thus, even single act can be considered as the gravest act. In the present case, the respondent remained absent from duty for one year, two months and 21 days. Therefore, his dismissal from service has rightly been upheld by the learned trial Court. The contention of the learned counsel for the respondent that the respondent could not have been dismissed from service by a subordinate officer to the punishing authority is not liable to be accepted. As per Rule 12.1 of the Rules, the appointing authority of a Constable is Superintendent of Police. Under Rule 12.1 of the Rules, the word 'Superintendent of Police' has been mentioned and there is no mention of S.S.P. rank. Therefore, Superintendent of Police/Headquarters was R.S.A. No.2071 of 1997 [7] competent to initiate disciplinary proceedings and pass punishment order. The medical certificate issued by one Dr. Rishi of Rishi Clinic and Maternity Home, Bhadson Road, Patiala produced by the respondent has not rightly been taken into consideration by the Courts below as it has only been submitted to justify the absence. In this certificate, it has been certified that absence of one year, two months and 21 days from 11.11.1987 to 30.1.1989 was justified and no history of ailment or treatment given has been mentioned. If the respondent was sick for about 15 months, he must have taken some specialized treatment from some specialist doctor, which the respondent failed to bring on record that he was confined to bed during this period of about fifteen months or what treatment was given to him during this period. In Baldev Singh v. The Secretary to Govt. Punjab, Rehabilitation Department, Chandigarh and others (supra), it was held that the inquiry can only be ordered against a Government servant by an authority competent to take disciplinary action against him. In that case the inquiry was ordered by respondent No.2, the Deputy Secretary, who was not the disciplinary authority so far as the appellant in that case was concerned. The same is not the position in this case, as disciplinary authority was Superintendent of Police. In Ex. HC Mohinder Singh v. State of Haryana (supra), the absence is only for 50 days. Due to illness of the petitioner, he was unable to return on duty. He sent telegram for extension of leave, but absence of 50 days was considered as gravest act, services of the petitioner were dismissed. It was held that as per Rule 16.2, dismissal could be awarded only for the gravest act of misconduct or as cumulative effect of continued misconduct proving incorrigibility and complete unfitness for R.S.A. No.2071 of 1997 [8] police service. The length of service of the petitioner was also not taken into consideration. It was held that it was non-application of mind on part of the authorities and the order of dismissal was quashed, which is not the case in the present appeal as the absence of the respondent in this case is one year, two months and 21 days that too without any intimation to his superior officers. In State of Punjab v. Constable Sarwan Singh (supra), in Rule 16.1, Column (6) of the table of Punjab Police Rules, 1934, competent authority, punishing authority, various Superintendents of Police has been mentioned in the column (6) as punishing authorities to pass dismissal order in the case of a Constable. In that case, the order was passed by Superintendent of Police (Headquarters) but was signed by S.P. Patiala. It was observed that it requires determination as to whether the delinquent official was working under the control of S.P. Patiala at the relevant time to determine whether the order has been passed by the competent authority or not. That case was remanded to the High Court. In the present case, Superintendent of Police (Headquarters) is the punishing authority and he has signed the order of dismissal. So, the judgments relied upon by the learned counsel for the respondent show that the facts of these cases could not be applied to the present case. In view of the above discussion, it may be noticed that respondent being a Police Constable, absented himself from duty for more than 14 months. It is not expected from a person of Police force that he should remain absent for years together, that too without informing his superior officers or without sending any intimation or leave. The respondent was serving in the disciplined force and he could not be R.S.A. No.2071 of 1997 [9] permitted to remain absent for such a long time without any intimation to his superior officers. This is particularly, so when he was not suffering from some serious ailment or such a problem which could prevent him from intimating his superior officers in this regard. For the foregoing reasons, this appeal succeeds. The same is, accordingly, allowed. The judgment and decree passed by the first appellate Court are set aside and that of the learned trial Court are restored. However, there shall be no order as to costs. August 5.8. 2011. (Mohinder Pal) Judge *hsp*