IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 12410 of 2009 DATE OF DECISION : AUGUST 18, 2009 EX. HEAD CONSTABLE SHAMSHER SINGH ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr.Balbir Singh, Advocate, for the petitioner(s). AJAI LAMBA, J. This petition under Articles 226/227 of the Constitution of India has been filed praying for issuance of a writ in the nature of certiorari quashing orders dated 16.7.2007, 15.2.2008 and 20.4.2009, Annexures P- 13, P-14 and P-16, respectively. The gist of the claim made by the petitioner is that vide Civil Writ Petition No. 12410 of 2009 2 impugned order (Annexure P-13), the petitioner has been dismissed from service. Vide the other impugned orders (Annexures P-14 and P-16), the appeals filed by the petitioner have also been dismissed. Learned counsel for the petitioner has contended that the wife of the petitioner was ailing and, therefore, the petitioner could not report for duty. The petitioner has children and it is a hard case. Order of dismissal is harsh. I have considered the contentions raised on behalf of the petitioner. The facts, not disputed by the learned counsel for the petitioner, are that the petitioner was posted as Head Constable at Police Lines, Nawanshahr. On 28.9.2006, a sudden counting of employees was done. The petitioner was found absent without any leave or intimation in that regard. A Daily Diary Report was entered. The petitioner came present only on 29.12.006. In view of the incident, a regular departmental inquiry was ordered. Inquiry report dated 14.2.2007 (Annexure P-10) indicates that the petitioner was given ample opportunity to present his defence. The petitioner, however, informed the inquiry Officer that he did not want to produce any defence witness and demanded time to present his defence version. In the defence version, all that was stated was that the petitioner had gone to his home town. His wife was seriously ill and had been operated upon for lung disease. The operation was not successful and, therefore, she had been keeping ill health. In fact, the Inquiry Officer was informed that the wife of the petitioner had been ailing for the last 12 to Civil Writ Petition No. 12410 of 2009 3 14 years and the petitioner, in view of the same, had been under mental stress. Be that as it may, the Inquiry Officer, on consideration of the material placed before him, came to the conclusion that the petitioner could not produce any document or proof of his absence for more than 92 days. Although, defence of ailing wife had been taken, however, no document or material indicating the fact had been produced. Rather, the petitioner had neither informed the authorities nor had applied for leave. In view of the findings recorded by the Inquiry Officer, a show cause notice dated 14.5.2007 (Annexure P-11) was issued. Order (Annexure P-13) came to be passed by the Senior Superintendent of Police, Nawanshahar, after considering the facts and circumstances of the case. It has been noticed that the petitioner had made no effort to give information or an application for leave before going absent. It has also been recorded that the petitioner was habitual in this regard and had been absent time and again. The petitioner had been awarded punishments earlier also. It is a disciplined force and, therefore, the facts and circumstances warrant dismissal of the petitioner from service. Order dated 15.2.2008 (Annexure P-14) has been passed by the Deputy Inspector General of Police, Jalandhar Range, Jalandhar Cantt. on the appeal of the petitioner. The order indicates that before passing the order, the record of the petitioner was perused. The petitioner was even called for personal hearing. The petitioner had availed of the opportunity on 7.2.2008 and put across his verbal contentions, however, no merit in Civil Writ Petition No. 12410 of 2009 4 the same could be traced. The petitioner filed further petition before the Director General of Police, Punjab, which has been considered and dismissed vide order dated 20.4.2009 (Annexure P-16). I have considered the facts and circumstances of the case. In the present case, I find that opportunity of hearing had been given to the petitioner at every stage of proceedings. Learned counsel for the petitioner, in Court, has admitted that the petitioner had neither given any information/intimation to the concerned officers nor had applied for leave. The petitioner just went to his home town and remained absent for more than 92 days. The police is a disciplined force. Absence for more than 3 months, in my considered opinion, is gravest act of misconduct. The petitioner had earlier also committed acts of misconduct for which he had been punished. Learned counsel has not been able to show as to how the punishment awarded is shocking, when the misconduct at issue and past conduct are taken into account. The absence of the petitioner could be traced because head count was conducted suddenly. Under the circumstances, it is not known as to from which date the petitioner had not been reporting for duty. Leaving the place of duty without intimation and without leave, much less sanctioned leave, in a disciplined force, has to be viewed seriously in view of the nature of trust placed on police officials. It is a public service and conduct, such as that of the petitioner, cannot be viewed while taking a casual approach. So far as the reason for absence is concerned, it was for the Civil Writ Petition No. 12410 of 2009 5 petitioner to establish the same before the concerned authority i.e. the Inquiry Officer, at the appropriate time, during inquiry proceedings. No material was placed before the authorities to indicate the ailment of wife of the petitioner. In any case, the facts and circumstances that have come on the record indicate that the wife of the petitioner had been ailing for the last more than 12 years and, therefore, it was not a sudden emergency on account of which the petitioner had to leave the place of duty without any intimation. Having considered the facts of the case, I find that learned counsel for the petitioner has not been able to indicate any material that has not been considered by the departmental authorities. Learned counsel for the petitioner has further not been able to show that the impugned orders have been passed on mis-interpretation of the material. No lacuna or infirmity in the procedure followed by the respondents, has been pointed out. Learned counsel has not been able to make out a case for judicial review of the orders passed by the respondent-authorities. In view of the above, I find no reason to interfere in writ jurisdiction. The petition is dismissed in limine. August 18, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Civil Writ Petition No. 12410 of 2009 6 The issue of award of punishment in a disciplined force, on account of absence without leave, has been considered by this Court in CWP No.9561 of 2009 (Jaspal Singh (Ex-Constable No.784/LDH) v. State of Punjab and others) decided on 8.7.2009. The following portion needs to be extracted, for consideration:- “The Hon'ble Supreme Court of India has dealt with somewhat similar circumstance while dealing with Maan Singh v. Union of India and others, (2003) 3 Supreme Court Cases 464. The following needs to be noticed from para-11 of the judgment:- “11. Relying on State of Punjab v. Ram Singh Ex-Constable, (1992) 4 SCC 54, one of the arguments advanced before us is that it is only in cases where the misconduct is of the gravest kind an order of dismissal shall be made. This case was decided in the context of rule 16.2(1) of the Punjab Police Manual, 1934, Vol. II. The said Rule reads as follows: “Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension.” After analysing the said provision, this Court in Ram Singh case held that Rule 16.2(1) consists of two parts, firstly, dismissal shall be awarded for the gravest acts of misconduct and secondly, cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and the length of service of the offender and Civil Writ Petition No. 12410 of 2009 7 his claim for pension should be taken into account in an appropriate case. The second part is referable to a misconduct which, by itself, may not warrant an order of dismissal and may be a ground to take a lenient view of giving an opportunity to reform and even after giving such opportunities, if the delinquent officer is proved to be incorrigible and found completely unfit to remain in service then in order to maintain discipline in the service appropriate punishments can be given. Therefore, when the charge against the appellants in each of these cases is habitual absence for long periods on several occasions unauthorisedly, the view taken by the disciplinary authority is justified.” The first argument of the petitioner, accordingly, has to be rejected. The portion of the judgment of the Hon'ble Supreme Court of India, extracted above, clearly establishes that the action taken by the respondents was justified and no fault therein can be found. In regard to the second argument addressed by the learned counsel for the petitioner - Re: disproportionate penalty, I am of the considered opinion that the case of the petitioner does not call for a judicial review. Other than the fact that as many as 5 penalties had been imposed earlier for similar misconduct and the conduct of the petitioner had shown incorrigibility, the misconduct at issue i.e. absence for more than 1 year, is sufficient not to call for a lenient view. The petitioner was serving a disciplined force. The Hon'ble Supreme Court of India has dealt with a similar issue while dealing with Union of India and others v. Ghulam Mohd. Bhat, (2005) 13 Supreme Court Cases 228, wherein it has been held that overstay by Civil Writ Petition No. 12410 of 2009 8 persons belonging to disciplined forces needs to be dealt with sternly. In that case, the employee had been absent for 300 days without any justifiable reason and, therefore, it was held that removal from service suffers from no infirmity and the High Court was not justified in interfering with the same. For exact reference, para-9 of the judgment is reproduced therefrom:- “9. This Court had occasion to deal with the cases of overstay by persons belonging to disciplined forces. In State of U.P. v. Ashok Kumar Singh (1996 (1) SCC 302), the employee was a police constable and it was held that an act of indiscipline by such a person needs to be dealt with sternly. It is for the employee concerned to show how that penalty was disproportionate to the proved charges. No mitigating circumstance has been placed by the appellant to show as to how the punishment could be characterized as disproportionate and/or shocking. It has been categorically held that in a given case the order of dismissal from service cannot be faulted. In the instant case the period is more than 300 days and that too without any justifiable reason. That being so the order of removal from service suffers from no infirmity. The High Court was not justified in interfering with the same. The order of the High Court is set aside. The appeal is allowed but under the circumstances there shall be no order as to costs.” I am of the considered opinion that the impugned orders do not call for judicial review. The impugned order (Annexure P-1) clearly says that the petitioner was duly made aware of the fact that he was being proceeded against in a departmental inquiry. The petitioner, Civil Writ Petition No. 12410 of 2009 9 however, chose not to join the inquiry proceedings. Again, a show cause notice was issued before dealing with the issue of proposed punishment. Again, the petitioner did not join the proceedings and the order had to be passed ex-parte. It seems that the impugned order (Annexure P-1) was served whereafter, appeal, review/representation and mercy petition had been filed. The impugned orders are speaking orders giving valid reasons. Principles of natural justice have been observed before taking action against the petitioner. Learned counsel for the petitioner has not been able to show any legal infirmity or perversity in the impugned orders.”