Regular Second Appeal No.2269 of 1997 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. Regular Second Appeal No.2269 of 1997 Date of Decision:-02.11.2010 The State of Punjab & Ors. ......Appellants. Versus Jagtar Singh, Ex-Constable No.695/Gurdaspur. ......Respondent. CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH. Present:- Mr. K.S. Sidhu, DAG Punjab for the Appellants. Mrs. Priya Khaitan, Advocate for the Respondent. *** JASWANT SINGH, J. 1. Challenge in the present Regular Second Appeal is to the judgment and decree dated 11.02.1997 passed by the learned Additional District Judge, Gurdaspur vide which judgment and decree dated 11.05.1992 passed by the learned Sub Judge Second Class, Gurdaspur was set aside and the suit of the plaintiff/respondent that the order dated 15.09.1987 passed by Senior Superintendent of Police, Gurdaspur terminating his service was null and void and that the plaintiff would be entitled to all benefits of service which he would have earned if he had remained in service, was decreed. The brief facts of the case giving rise to the matter in controversy are as under:- Regular Second Appeal No.2269 of 1997 #2# 2. That the plaintiff/respondent was appointed as temporary constable w.e.f. 10.01.1981 and posted under Senior Superintendent of Police, Amritsar in the pay scale of ` 400-660 with initial start of ` 420/-. On 28.05.1985 he was transferred from Amritsar to Gurdaspur. Vide order no.611-15/37 dated 25.11.1985, Senior Superintendent of Police, Gurdaspur forfeited his one year approved service w.e.f. 01.09.1985 with temporary effect. All these facts have been taken from his service book and inquiry file, which has been placed on record as Ex.P-1 before the trial Court. He was sent to undergo M.T. Course on 19.07.1986 from where he was deputed to Taran Tarn in connection with evidence in the Court on 1.8.1986 and he was to report back at Jalandhar on 3.8.1986 but he reported back at Jalandhar on 11.08.1986. On account of that lapse Commandant 7th Bn. vide his order dated 14.08.1986 sent him back to Gurdaspur after cancelling his M.T. Course with the direction to the plaintiff/respondent to report at Gurdaspur on 14.08.1986 but he reported at Gurdaspur on 10.04.1987 and thus remained absent from duty for 250 days 10 hours and 25 minutes. Thereafter inquiry was conducted and vide orders dated 15.09.1987 services of the plaintiff/respondent were terminated. He filed appeal before the Deputy Inspector General of Police , Border Range, Amritsar, who also dismissed the appeal vide orders dated 14.06.1989 conveyed to the plaintiff vide letter no.7112/BR-5 dated 16.06.1989. 3. Being aggrieved, the plaintiff/respondent filed Civil Suit No.567 of 1989 in the court of Sub Judge IInd Class Gurdaspur for declaration to the effect that the impugned order no.4796-4801/ST dated 15.09.1987 passed by defendant no.2(SSP Gurdaspur) by virtue of which plaintiff was dismissed from service with immediate effect having been Regular Second Appeal No.2269 of 1997 #3# merged into the impugned appellate order by virtue of which the appeal of the plaintiff was rejected by the Deputy Inspector General of Police, Border Range, Amritsar are illegal, ultravires, unconstitutional, equity and fair play against the principles of natural justice and rules, capricious, malicious etc. Reply on behalf of the defendants was filed and after completion of the pleadings the learned Trial Court framed the following issues:- 1. Whether the impugned order dated 15.09.1987 is illegal, unconstitutional, ultravires etc. as alleged in the headnote of the plaint?OPP. 2. Whether the plaintiff is entitled to declaration prayed for? The trial Court decided issues no.1 & 2 together being interconnected and dismissed the suit of the plaintiff/respondent vide judgment and decree dated 11.05.1992. 4. Being aggrieved against the judgment and decree dated 11.05.1992, plaintiff/respondent filed appeal under Section 97 of CPC and the same was allowed by the learned Additional District Judge, Gurdaspur and the judgment and decree dated 11.05.1992 passed by the learned Sub Judge IInd Class, Gurdaspur. The operative part of the decree dated 11.02.1987 read as under:- “ It is ordered that I accept this appeal with costs and set aside the judgment of learned trial Court and decree the suit of the plaintiff for declaration that the order dated 15.09.1987 passed by Senior Superintendent of Police, Gurdaspur, was null and void and that the plaintiff would be entitled to all benefits of service which he would have earned if he had remained in service.” 5. Aggrieved against the judgment and decree dated 11th February, Regular Second Appeal No.2269 of 1997 #4# 1987 present Regular Second Appeal has been filed by the State of Punjab and its officers against the plaintiff/respondent. It appears that at the time of filing the appeal no substantial questions of law were framed in this case and by way of C.M. No.4286-C of 2008 the following substantial questions of law were framed:- i) Whether absent for 250 days by police officials would not amount to grevious misconduct by the uniform personnel? ii) Whether the finding of the first appellate Court with regard to lack of opportunity of personal hearing is not contrary against the record? iii) Whether the passing of an Order after 34 days of issuing show cause notice can be considered insufficient notice especially when the reply is to be filed within 10 days? The substantial questions of law framed by the appellant were ordered to be taken on record vide order dated April 28, 2009. 6. In this case notice of motion was issued to the respondent for 8.1.1998 on 3.10.1997 and the following orders were passed:- “ Notice of motion to the respondent for 8.1.1988. Till then, operation of the impugned judgment and decree passed by the first Appellate Court is stayed.” On 8.1.1988 the following orders were passed:- “ The respondent has not yet been served . Issue fresh notice to him for 30.03.98. Interim order to continue.” On 12.10.2000 this Court passed the following orders:- “ No ground to vacate the stay. Appeal can, however, be allowed to be heard at any early date. Registry shall list this appeal for actual Regular Second Appeal No.2269 of 1997 #5# hearing on 6.11.2000.” 7. Arguments in this case were heard on 26.04.2010 and orders were reserved. The main issues involved in this case are:- i) Whether the unauthorized absence from duty by the plaintiff/respondent amounts to gravest misconduct? ii) Whether the judgment and decree dated 11.02.1997 passed by the learned First Appellate Court is sustainable in the eyes of law? 8. In this case learned trial Court minutely perused the inquiry file Ex.P-1 and observed in relevant paras 11, 12, 13 & 14 as under:- “11. Learned counsel for plaintiff has drawn my attention towards page 67 of the enquiry file, where receipt of show cause notice is available and date below signatures of delinquent was mentioned as 12.09.1987, whereas ten days period from service of notice for hearing was granted to delinquent as it is evident from show cause notice available at page 60 in the enquiry file. Learned Counsel for plaintiff argued that impugned order was passed on 15.09.1987 within three days from the date of service of show cause notice. Learned Government Pleader dispute this contention and has drawn my attention towards page 67 and contended that dated 12.9.1987 was tempered from 2.9.1987. I have carefully observed figure '12' of dated 12.9.1987 was must be added somewhere after the writing of figures 2.9.87 of date 12.9.1987 on the following grounds:- i) '1' is in different ink from other figures. Regular Second Appeal No.2269 of 1997 #6# ii) Figure '1' was added by repeated strokes of ball pen. iii) Figure '1' is not in running hand. I agree with the contention of learned Govt. Pleader and of the considered opinion that figure '1' of figure '12' of dated 12.9.1987 was added somewhere after the service of show cause notice upon delinquent to falsify the case of defendants by tempering the date. 12. Learned Government pleader for defendants has also drawn my attention towards page 13 of the enquiry file Ex.P 1 and he contended that this page was added somewhere after the conclusion of enquiry against delinquent, in collusion with some official having custody of record. Learned Counsel for plaintiff tried to rebut this contention with reference to index of enquiryfile, where this page was mentioned as application from delinquent(Darkhast wallon Kutahikar). I have carefully perused the page number 13 and whole enquiry to find about the genuineness of page no.13 with the help of both the counsel. After careful perusal I came to conclusion that page no.13 was inserted in enquiry file after the final culmination of enquiry in order to falsify defendants in collusion with some official having custody of record at the relevant time on following grounds:- i) Page no.13 is more shining than any other page in the enquiry file. ii) Outer margins of page no.13 has not suffered impact of touch and time equal to other pages in the enquiry file. Regular Second Appeal No.2269 of 1997 #7# iii) Outer margins of all other pages in the enquiry file are not as intact as outer margins of page no.13. iv) Page number on page 13 was marked with fountain pen, whereas page numbers on adjoining pages were marked in ball pen. v) “No.13” on page number 13 was not marked in running hand. vi) Figure '3' of page 13 is different from figure '3' of other pages, whereever it is available. vii) In enquiry report available at pages from 57 to 65 in enquiry file, reference of application is there at page 63 covering seven lines which is totally different from the contents of application available at page 13. ix) Reference of application available at page 13 is also there in the last zimni order dated 22.5.1987 available at page 32 in the enquiry file which is also different from the contents of application available at page 13. 13. Enquiry file used to be handled by various officials and I could not pin point the person, who has forged record, otherwise I must have written for institution of criminal proceedings for forgery against delinquent employee. At the same time I would not like to write for institution of criminal proceedings against plaintiff considering evidentiary requirement of criminal prosecution. 14. Plaintiff has not come to Court with clean hands , even he tried to throw dust in the eyes of court, agitating his right with the forged record which have been forged with the active connivance of plaintiff with some official because the forgery would benefit the delinquent, it is was not detected.” Regular Second Appeal No.2269 of 1997 #8# 9. Relevant part of the judgment dated 11.05.1992 passed by the learned trial Court reproduced hereinabove reveals that the plaintiff/respondent has not come to the Court with clean hands. Rather he tried to interpolate the official record by pre-fixing figure 1 before the date of show cause notice dated 2.9.87 and converted it to 12.9.87 just to substantiate his case that show cause notice was issued on 12.09.1987 and the dismissal order was passed on 15.09.1987 i.e. within a period of three days as such the time of 10 days for filing reply was not afforded to the appellant as stipulated in the Show Cause Notice itself. 10. Learned First Appellate Court accepted the appeal and set aside the judgment and decree dated 11.05.1992 passed by the learned trial Court and decreed the suit of the plaintiff due to following reasons:- “There is nothing on file to show that any insertion of figure '1' was got made by the plaintiff or that page 13 was got inserted by him. Even otherwise also the reason given by the learned trial Court does not appear to be sound. But even if it is taken for the sake of arguments that figure '1' was added to the date 2.9.97 and page 13 was inserted in the enquiry file, even then the learned trial Court should not have dismissed the suit of the plaintiff without discussing other illegality pointed out by the plaintiff in the conduct of the enquiry.” 11. As discussed by the learned trial Court in the judgment, the appellant has not come to the Court with clean hands. Once the trial Court has come to the conclusion that appellant has not approached the Court with clean hands and dismissed the suit after minutely perusing the record, then it Regular Second Appeal No.2269 of 1997 #9# would not have warranted any interference. Law is well settled that in domestic inquiry strict rules of Evidence Act or CPC are not applicable. Rather it is preponderance of probability on the basis of which the inquiry officer or the disciplinary authority has to draw the inference and come to the conclusion whether the charge is proved or not proved against the delinquent official. From the record, it is evident that appellant was served with show cause notice and given sufficient opportunities to put forth his case. So far as the argument preferred in the appeal that the plaintiff/respondent was not given personal hearing by the appellate authority, it is to be noticed that it is not requirement of law under the Punjab Police Rules 1934 to give personal hearing while deciding appeal by the appellate authority. Plaintiff-respondent has relied upon DB judgment of this court in case titled as Dhan Singh Versus State of Haryana & Ors 2009(1) RSJ 62. In that case petitioner had rendered 11 years and 9 months service and remained absent on two occasions for 22 days and 100 days only. In the present case, it is evident from Ex.P-1 that the plaintiff- respondent was appointed as constable in the year 1981 and in the year 1985 his service for one year was forfeited on account of absence from duty without permission. After that he absented un-authorisedly for 250 days 10 hours and 25 minutes from 14.08.1986 to 10.04.1987 resulting in his dismissal from service. The matter with regard to absence from duty in a disciplined force like Police is no longer res-integra. The Hon'ble Supreme Court in case reported as State of Punjab & Ors. Vs. Sukhwinder Singh 1999 Supreme Court Cases (L&S) 1234 held that repeated absenteeism from duty by a policeman would warrant dismissal from service. Similarly in Regular Second Appeal No.2269 of 1997 #10# State of Punjab & Ors. Vs. Mohinder Singh (2005) 12 Supreme Court Cases 182 the Hon'ble Supreme Court held that absence from duty for 5-1/2 months by a police constable being member of a disciplinary force is reprehensible and thus not liable to be retained in service. In another case reported as Harjit Singh & Anr. Vs. State of Punjab & Anr. AIR 2007 SC (Supp)1017 the Hon'ble Supreme Court in para no.14 has categorically held that habitual absence from duty by a member of police force would justify the imposition of punishment of dismissal. Similarly three judges bench of Hon'ble Supreme Court in case reported as Mann Singh Vs. Union of India & Ors. (2003)3 Supreme Court Cases 464 held that habitual unauthorized absence for long periods on several occasions would justify the action of the disciplinary authorities in dismissing a constable from service. 12. Keeping in view the aforesaid settled principle of law and the facts of the present case it is established that the unauthorized absence from duty by the plaintiff/respondent, who was a constable with short tenure of service amounted to gravest misconduct and thus justifying his dismissal. Accordingly the judgment and decree dated 11.02.1997 passed by the learned first Appellate Court cannot be sustained in the eyes of law and hence is set aside and judgment and decree dated 11.05.1992 passed by the learned Sub Judge IInd Class, Gurdaspur is confirmed. 13. Regular Second Appeal is allowed in the above terms with no order as to costs. ( JASWANT SINGH ) JUDGE November 02nd, 2010 Vinay