IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 96 of 1994 Date of decision: 24-3-2009 Mangal Singh Ex.constable … Appellant versus State of Punjab and others … Respondents THE HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. H.S.Grewal, Advocate for the appellant Mr. B.S.Sra, DAG Punjab … ARVIND KUMAR, J: The present appeal by the plaintiff is directed against the judgment and decree of the first appellate Court whereby on acceptance of appeal preferred by defendants, his suit for declaration has been dismissed after setting aside the judgment and decree of the trial Court decreeing his suit. As per case set out by the plaintiff in his plaint, he joined as Constable in the Police Force and performed his duty sincerely. However, his services were terminated vide order dated 2.6.1986 by the Superintendent of Police, Bathinda, on the allegation of absence from duty. Against the said order, he preferred representations/appeal but that too were dismissed vide order dated 8.10.1986 and 23.6.1987 by the Deputy Inspector General of Police and Inspector General of Police respectively. According to the plaintiff, the said orders are non-speaking. He requested the defendants to keep him in service besides serving upon them notice under Section 80, Code of Civil Procedure, but to no avail. Upon notice of the suit, written statement was filed by the defendants in which it was pleaded that the order dismissing the plaintiff from service was passed as a result of departmental enquiry of wilful absence from 15.7.1984 to 4.9.1984, i.e. 51 days and from 22.2.1985 to the date of dismissal i.e. R.S.A. No. 96 of 1994 -2- 2.6.1986. Trial Court on appreciation of evidence adduced before it, vide judgment and decree dated 17.10.1992 decreed the suit of the plaintiff. It was observed that the absence of the plaintiff from service was not only the consideration for dismissing him from service; rather his previous adverse record was also taken into account, which could not be done as no opportunity was afforded to the plaintiff to explain his position about his previous service record and therefore, the order of dismissal was held to be illegal. However, on appeal by the defendants, the first appellate Court did not agree with the findings arrived at by the trial Court and resultantly, vide its judgment and decree dated 1.9.1993 allowed the appeal and set aside the judgment and decree of the trial Court. This is how the present appeal has been preferred by the plaintiff. Counsel for the parties have been heard. The question which arises for determination in this appeal is whether continuous absence of the plaintiff-appellant, a Constable in the Punjab Police, could be regarded as gravest act of misconduct within the meaning of Rule 16(2)(i) of the Punjab Police Rules, 1934( for brevity, the Rules) and whether consideration of his past record without notice has caused any prejudice to him ?. 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 service of the offender and his claim to pension. In State of U.P. and others v. Ashok Kumar Singh and another, 1996(2) SLT 139 SC, the Hon'ble Supreme Court has held as under:- “ ...... The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty R.S.A. No. 96 of 1994 -3- without leave on several occasions, we are unable to appreciate the High Court's observation that his absence from duty would not amount to such a grave charge.” The inference thus, is repeated absence from duty amounting to gravest act of misconduct as provided for in rule 16.2 referred to above proving incorrigibility and complete unfitness for police service. In the instant case, the plaintiff-appellant remained absent from duty for 51 days at a stretch and subsequently thereto, with effect from 22.2.1985 onwards till the dismissal order was passed on 2.6.1986. Two notices, Exhibits D-1 and D- 2, were duly served upon him through Constable Ranjit Singh but despite that, he did not appear to face departmental proceedings which necessitated the Department to proceed against him ex-parte. He was given show cause notice of removal from service. He though filed reply but did not appear and continued to remain absent. It is not that the disciplinary Authority had not taken into consideration his length of service and claim of pension. The impugned order dated 2.6.1986 specifically stipulates that the concerned Authority had examined his claim to pension and length of service. He was recruited in service in 1977. Earlier in 1981, his one year service for forfeited; in 1983 he was given drill punishment and in 1985, his five years' service was forfeited with permanent effect and this led the disciplinary Authority to hold that he does not deserve any lenient view. The order indicates that his service record was deplorable. Various orders in regard to the punishment and other acts of indiscipline had been passed against him which were part of his service record. This clearly shows that he was not only a habitual absentee but a person who was incorrigible in terms of discipline and attendance. It has been contended by the counsel for the appellant that the disciplinary Authority had taken into consideration appellant's previous record while awarding punishment of dismissal without affording any opportunity to him which is prejudicial and has referred to a judgment of this Court in State of Punjab and others v. Jaspinder Singh, 2008(3) S.C.T. 262. The contention is meritless. The judgment in Jaspinder Singh's case(supra) is not applicable to the facts and circumstances of the present case; firstly because in this case,the plaintiff has not taken any such R.S.A. No. 96 of 1994 -4- plea in the plaint and secondly, the tenor of the impugned order indicates that the proposed punishment of dismissal was found to be proper mainly on the basis of his having remained absent for 51 days without permission and again continued absence with effect from 22.2.1985 till the date of dismissal and then in addition, his previous service record was taken into consideration before dismissing him from service. Thus, the learned lower appellate Court has rightly observed that when the punishment is not mainly based on the previous record, the concerned official cannot take benefit of having been prejudiced in the matter of not affording an opportunity to explain the previous bad record nor can he claim non-compliance of provisions of police rules having not been afforded an opportunity to explain the previous record. The entire scenario indicates that previously also, various orders of punishment were inflicted on the plaintiff-appellant which were duly recorded in his service record on regular intervals, which in fact were not assailed by him and in other words, have attained finality and if that record had been taken into consideration in addition to his continued misconduct of absence, it does not warrant any violation of Rule 16.2 of the Rules. It is well settled that the Courts cannot sit over the findings of the Inquiry Officer as accepted by the disciplinary Authority and act as a Court of appeal unless it is shown that the findings are without any evidence, which is not the case here. The entire matter has been duly appreciated by the lower appellate Court. Thus, the impugned judgment and decree of the lower appellate Court needs no interference. Consequently, the present second appeal being without any merit is hereby dismissed. ( ARVIND KUMAR ) March 24, 2009 JUDGE JS