RSA No.4728 of 1999(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4728 of 1999(O&M) Date of decision: 25.5.2009 State of Punjab and others ......Appellants Versus Jagir Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Rajesh Garg, Additional Advocate General, Punjab. for the appellants. Mr. H.S. Mann, Advocate with Mr. Kamaldip Singh Sidhu, Advocate for the respondent. * * * Rakesh Kumar Garg, J. The State of Punjab being the defendant has challenged the judgments and decrees passed by the Courts below in favour of the plaintiff-respondent in this appeal preferred under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code). Brief facts of the case necessary for deciding the controversy raised in the instant appeal are that the plaintiff-respondent was working as a Police Constable. He alongwith a number of other Constables was deployed for guard duty at the bungalow of Sh. Ratnesh Singh Sodhi, Editor of Punjabi Daily 'Akali Patrika' Jalandhar. In addition to the plaintiff- respondent; Constable Surinder Singh belt No.2083; Constable Baljit Singh belt No.2104; Constable Prem Chand belt No.367 and Constable Makhan Singh belt No.1993 were also members of the guard and Head Constable Surjit Singh No.1863 was in charge of the guard. The case of the plaintiff- respondent is that on the fateful night of 11.8.1987/12.8.1987 when he was on duty he developed a severe attack of dysentery and high fever. It is claimed that with the permission of H.C. Surjit Singh, in charge of the RSA No.4728 of 1999(O&M) 2 guard, he went to Dr. Rajinder Singh Chhabra of Jalandhar for his treatment and remained there admitted throughout the night. He claimed to have reported for duty on the next day. On the allegation of absence from duty enquiries were held against him which culminated into his dismissal vide order dated 17.3.1989. He has challenged the order of his dismissal dated 17.3.1989 passed by the Superintendent of Police, Jalandhar being his disciplinary and appointing authority. Plaintiff- respondent has also challenged order dated 16.5.1989 passed by the Deputy Inspector General of Police, Jalandhar Range, Jalandhar dismissing his appeal and the order dated 28.8.1989 passed by the Inspector General of Police, Punjab, dismissing his revision petition. The case of the defendant-appellant is that the plaintiff- respondent absented himself from duty unauthorisedly which had resulted in killing of Constable Makhan Singh, Constable Prem Chand, Constable Baljit Singh and Constable Surjit Singh, who were the remaining members of the Guard on duty at the bungalow of Sh. Ratnesh Singh Sodhi. It was further asserted that the plaintiff-respondent along with H.C Surjit Singh had absented unauthorisedly without seeking prior permission from the competent authority. It was also asserted that had he been there then the others persons on Guard duty could not have been killed. Defendant- appellant has referred to the detailed enquiry report dated 2.12.1988 conducted by DSP (City) Jalandhar which is part of the enquiry file Exhibit D-1. The Inquiry Officer after following detailed procedure and affording adequate opportunity of defending himself by the plaintiff-respondent had recorded the finding that the plaintiff-respondent was guilty of charges by remaining absent from duty without permission and in the facts and circumstances of the case, it is a grave act of violation of police discipline. Thereafter the delinquent Constable was issued show cause notice for RSA No.4728 of 1999(O&M) 3 imposition of major penalty of dismissal and forfeiting of other allowances except the subsistence allowance which stood paid during the suspension period. The delinquent Constable duly replied to the show cause notice vide his reply dated 28.12.1988 which resulted in passing of the order dated 17.3.1989 dismissing the plaintiff-respondent from service. It is appropriate to mention that when the show cause notice was issued to the plaintiff-respondent he was given a copy of the enquiry report also. The order of dismissal dated 17.3.1989 passed by the Superintendent of Police, Jalandhar was upheld by the appellate authority by dismissing the appeal of the plaintiff-respondent on 16.5.1989 and also by the revisional authority vide its order dated 28.8.1989. The trial Court decreed the suit of the plaintiff-respondent by recording a finding that Rule 16(2) of the Punjab Police Rules, 1934 (for short the “Rules”) was not taken into consideration inasmuch as it had not been found that the misconduct committed by the plaintiff-respondent was a gravest act. It had further been concluded that no reasonable opportunity was afforded to the plaintiff-respondent and the order of dismissal was vitiated. The findings of the trial Court are discernible from para 11 of its judgment which reads as under: “I am of the considered opinion that it is well settled law that the Court cannot interfere with regard to the quantum of punishment with respect to a person or police officer found guilty of dereliction of duty. In view of my observations that the punishing authority was not alive to the ingredients i.e. while awarding the punishment in terms of Rule 16.2(1) of the PPR. It has to be satisfied that the act attributed is one of the gravest acts of the cumulative effect of the continuously RSA No.4728 of 1999(O&M) 4 misconduct making completely unfit for the police service. I also find that the punishment is too harsh and it is clearly disproportionate to the charge established against the plaintiff. Moreover, I find that the respondent authority has not at all taken into consideration the factum of the relevant provision regularising the Procedure of Civil Code, therefore, it has been taken note of while determining the quantum of punishment. No reasonable opportunity has been afforded to the plaintiff before passing the impugned order. In the circumstances, therefore, the impugned order stands vitiated in the eyes of law. Hence, these issues are decided in favour of the plaintiff and against the defendants.” On appeal the lower appellate Court came to the conclusion that absence from duty for only one night intervening 11/12.8.1987 could not constitute the basis for finding that it was a gravest act of misconduct. The lower appellate court further held that the punishment is too harsh and disproportionate to the charge established against the plaintiff-respondent. The view of the lower appellate court in this regard is discernible from a perusal of para 9 of its judgment, which reads as under:- “The plaintiff was found to be absent from duty on 11.8.1987 at 7.30 p.m and he had joined his duty on the next day in the morning and for remaining absent from duty only for these 12 hours this severe punishment has been imposed on him which is in contravention of rule 16.2(1) of the Punjab Police Rules. For this the counsel for the plaintiff has relied on State of Punjab and RSA No.4728 of 1999(O&M) 5 others v. Darshan Singh 1989(1) All India Services Law Journal 191, wherein it has been held by our own Hon'ble High Court that according to rule 16.2(1) of the Punjab Police Rules, the penalty of dismissal from service can be awarded only for gravest act of misconduct. The present misconduct of the plaintiff for remaining absent from duty only for 12 hours is not gravest type of misconduct. On the same point, the counsel for the plaintiff has also relied on State of Punjab v. Parkash Chand S.L.R 1992 page 174 wherein it has been held that the absence without leave does not amount to gravest act of misconduct. Moreover the perusal of enquiry file Ex.D1 shows that the proper procedure was never adopted by the Enquiry Officer while holding enquiry proceedings. Summary of allegations and copy of charge-sheet was never supplied to the plaintiff in accordance with the provisions of law.” As a consequence of the aforementioned findings the orders dated 17.3.1989 and 16.5.1989 and 28.8.1989 were declared illegal, unlawful, unconstitutional, arbitrary, capricious, discriminatory, against the provisions of law, Police Rules etc. The plaintiff-respondent was held entitled to all the rights, privileges and emoluments attached to the post of Constable. When the appeal came up for preliminary hearing, this Court while admitting the appeal had stayed the operation of the judgments of the courts below till further orders as is evident from order dated 21.1.2000. The case came up for final hearing before this Court on RSA No.4728 of 1999(O&M) 6 4.1.2006 and on the basis of the arguments raised by learned counsel for the parties, the Court while deciding the appeal, framed the following substantial question of law: “Whether in the facts and circumstances of this case the absence of plaintiff-respondent, who is a Constable in Punjab Police, on the intervening night of 11.8.1987/12.8.1987 could be regarded as gravest act of misconduct within the meaning of Rule 16(2) of the Punjab Police Rules, 1934 (for brevity the Rules).” While allowing this appeal vide judgment dated 4.1.2006, this Court held as under: “It may be true that a single act of absence from duty for a week or even for a longer period may not constitute gravest acts of misconduct yet absence of one day in given facts and circumstances may be serious enough to conclude that there was a gravest act of misconduct. The facts in the present case would make the absence of plaintiff-respondent as a gravest act of misconduct as has rightly been found by the Enquiry Officer. Therefore, those findings recorded by both the courts below cannot be sustained.” The plaintiff-respondent filed Special Leave to Appeal (Civil) No.7913 of 2006 before the Hon'ble Supreme Court challenging the judgment dated 4.1.2006 of this Court. Vide judgment dated 3.11.2006, the aforesaid SLP(Civil) was allowed in the following terms:- “We have heard Mr. Nidesh Gupta, learned counsel for the petitioner and Mr. H.S. Munjral, learned counsel for the respondent-State and perused the order dated RSA No.4728 of 1999(O&M) 7 4.1.2006 impugned in this appeal passed by the High Court in Regular Second Appeal No.4728 of 1999. The High Court, in our opinion, has not framed substantial questions of law involved in this appeal. In the judgment, the only question framed by the High Court at page 3, in our opinion, is not a substantial question of law as contemplated under Section 100 CPC. As per Section 100 CPC, it is the mandatory duty of the High Court to formulate substantial questions of law involved in the appeal and dispose of the same on merits. Since the High Court has not complied with the statutory requirement, we have no other option except to set aside the final order dated 4.1.2006 rendered by the High Court in Regular Second Appeal No.4728/99.” After remand, the appellant moved CM No.4731-C of 2007 for framing of substantial questions of law said to be arising in this appeal. The respondent also moved CM No.5824-C of 2007 for framing substantial questions of law arising in the appeal. At the time of hearing, with the help of the counsel for the parties, this Court framed the following substantial questions of law arising out of this appeal: 1. Whether the Courts below had the jurisdiction to re-examine the question as to whether a particular act of a delinquent officer in the facts and circumstances of that case constitutes an act of gravest misconduct? 2. Whether the judgments passed by the Courts below are erroneous in law in view of judgments of the Hon'ble Supreme Court in State of Punjab and others RSA No.4728 of 1999(O&M) 8 v. Ram Singh, Ex. Constable AIR 1992 SC 2188 and State of Punjab and others v. Bakshish Singh 1997 (6) SCC 381 and consequently liable to be set aside?. 3. Whether in the facts and circumstances of the case, the Courts below ought to have interfered in the quantum of punishment imposed by the disciplinary Authority? I have heard learned counsel for the parties and perused the record. Sh. Rajesh Garg, learned Additional Advocate General, Punjab has argued that the plaintiff, who was posted on operation duty had absented himself without permission and during the intervening period, five other members of the guard duty were found killed. Therefore, in the facts and circumstances of the case, his absence from duty amounted to gravest act of misconduct. It is further the case of the appellant-State that before passing the order of dismissal, enquiry was held in accordance with law and ample opportunity was given to the plaintiff-respondent and thereafter, the order of dismissal was passed. The Inquiry Officer in his enquiry report had held that the charges against the plaintiff-respondent were proved and therefore, in this case, the conduct of the plaintiff- respondent amounted to gravest act of misconduct and no fault can be found with this dismissal order. It was further argued that this Court would not sit over the findings of the Inquiry Officer which were accepted by the disciplinary Authority and this Court has no jurisdiction to re-examine the question as to whether such an act constituted gravest act of misconduct. It was further argued that what is 'a gravest act of misconduct' is to be seen in the facts and circumstances of a particular case and even a single act of misconduct can be construed as gravest act of misconduct and service of RSA No.4728 of 1999(O&M) 9 the employee can be terminated under Rule 16.2 of the Rules. On the other hand, learned counsel appearing on behalf of the plaintiff-respondent has vehemently argued that the version of the delinquent Constable that he remained admitted in hospital on the intervening night of 11.8.1987 and 12.8.1987 must be accepted and his absence on that account cannot be regarded as a gravest act of misconduct. In that regard, learned counsel for the plaintiff-respondent has placed reliance on a judgment of this Court in the case of Ex. Constable Balwant Singh v. The State of Haryana and others 1999(1) RSJ 680. According to the learned counsel, the absence of delinquent Constable from duty and that too with the permission of Head Constable incharge of the guard, would not constitute a gravest act of misconduct within the meaning of Rule 16(2) of the Rules. Learned counsel has also argued that the findings of the Inquiry Officer are based upon no evidence and the findings of the Courts below deserve to be upheld and the appeal is liable to be dismissed. I have heard learned counsel for the parties. It is useful to refer to Rule 16(2) of the Rules, as applicable to the plaintiff-respondent, which is extracted as under: 16.2. Dismissal- Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct providing 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. (2) An enrolled police officer convicted and sentenced to imprisonment on a criminal charge shall be dismissed: “Provided that in case the conviction of a police RSA No.4728 of 1999(O&M) 10 officer is set aside in appeal or revision, the officer empowered to appoint him shall review his case keeping in view the instructions issued by the Government in this behalf.” (3) When a police officer is convicted judicially and dismissed, or dismissed as a result of a departmental enquiry, in consequence of corrupt practices, the conviction and dismissal and its cause shall be published in the Police Gazette. In other cases of dismissal when it is desired to ensure that the officer dismissed shall not be re-employed elsewhere, a full descriptive roll, with particulars of the punishments, shall be sent for publication in the Police Gazette.” A perusal of the aforementioned rule makes it evident that the punishment of dismissal could be awarded only for the gravest act of misconduct. The Enquiry Officer in his enquiry report has held that the charges against the plaintiff-respondent have been proved. Plaintiff- respondent was granted full opportunity in the enquiry as has been rightly pointed out by the learned State counsel. A perusal of the summary of charges at page 33 of the enquiry file would show that the plaintiff- respondent had absented himself on the night intervening 11.8.1987/12.8/1987 without any permission which is an act of gravest violation of the police discipline. The aforementioned summary of charges is in Punjabi script which has been duly received by the plaintiff- respondent. According to the enquiry report these charges have been proved. It has been concluded that had the plaintiff-respondent remained present then the unfortunate incident of killing of four other Constables would not have occurred and that the defence of loose motion/fever has RSA No.4728 of 1999(O&M) 11 been found to be false. The concluding part of the enquiry report dated 2.12.1988 which has been accepted by the appointing authority when translated reads as under:- “In the instant enquiry, I have carefully perused the allegations levelled against H.C. Surjeet Singh No.1863, Constable Jagir Singh No.1154, statements of complainant witnesses, statements of defence witnesses and the statements of delinquent in writing. The allegations against the delinquent was that while posted on guard duty at the residence of Sh. Ratnesh Singh Sodhi, Editor of 'Akali Patrika', they absented themselves on 11/12.8.1987 without any sanctioned leave and permission. In the morning on 12.8.1987, Constable Makhan Singh No.1993, Prem Chand No.367, Baljit Singh No.2104 and Surinder Singh No.2033, who were posted on guard duty at the said Kothi, were found murdered in the guard room by some unknown accused who were gunned down at night. In case, HC Surjit Singh, who was posted as guard in charge, had not absented himself from duty and would have deputed armed sentry on duty while performing his duty diligently, the above said heinous crime of murder of four constables would not have occurred. Similarly, Jagir Singh Constable No.1154 while posted as standing guard has committed gross negligence and has committed grave violation of police discipline by absenting himself from the duty without any leave or permission. The evidence which has come on record RSA No.4728 of 1999(O&M) 12 during the course of departmental enquiry clearly proves that both the above said officials were absent from the guard duty on the intervening night of 11/12.8.1987. The delinquent produced Sh. Rajinder Sain Chhabra, RMP, Rasta Mohalla, Jalandhar in their defence, who stated in his statement that on 11.8.1987 at about 7.30 p.m., Jagir Singh delinquent had come to his clinic with the complaint of dysentery and fever. H.C. Surjit Singh had brought him there; and that Jagir Singh delinquent had remained under his treatment till 1.00 p.m and H.C. Surjit Singh had remained there to look after him. The evidence of this defence witness is not reliable. Rather it proves the absence of both the delinquents from guard duty. The kothi of Sh. Ratnesh Singh Sodhi is situated in Model Town and the police line where the Government doctor remains available, is much nearer than Rasta Mohalla. Moreover Civil Hospital, Jalandhar is also much nearer to the kothi of Sh. Ratnesh Singh than Rasta Mohalla. In case the ailment of Jagir Singh delinquent was genuine, then HC Surjit Singh, guard in charge could have sent him alongwith a Constable to some nearby doctor, police line hospital or civil hospital after giving information in the police station, Model Town. Therefore, the evidence of Dr. Rajinder Sain Chhabra is false and baseless. The statements of delinquents in writing also prove their absence from 7.30.p.m on 11.8.1987 to 1 p.m on 12.8.1987. Therefore, on the basis of above said circumstances, I RSA No.4728 of 1999(O&M) 13 hold HC Surjit Singh No.1863 and Constable Jagir Singh No.1154 guilty in this departmental enquiry in connection with allegation of being absent from the guard duty at the residence of Sh.Ratnesh Singh Sodhi, Editor of 'Akali Patrika' on the intervening night of 11/12.8.1987 without any sanctioned leave, permission and any cause.”(emphasis added). Thus, the Inquiry Officer categorically concluded that the absence of the plaintiff-respondent without any authorized leave is an act of gravest misconduct and gross negligence. The Punishing Authority also concurred with the view taken by the Inquiry Officer. Not only this, even the appellants and Revisional Authority under the statutory rules upheld the aforesaid findings. It is well settled that once the punishing authority himself comes to the conclusion that a particular act of a delinquent officer constitutes a gravest act of misconduct warranting dismissal then the courts have no jurisdiction to re-examine the question as to whether such an act constitutes gravest of misconduct. In that regard reliance may be placed on a judgment of the Supreme Court in the case of Maan Singh v. Union of India (2003) 3 SCC 464. This Court in Satish Kumar v. State of Haryana 2001(4) SCT 237 while interpreting Rule 16.2(1) of the Punjab Police Rules, 1934 held that dismissal from service on account of unauthorized absence from duty of a Police Constable is an act of gravest misconduct. Similarly, in Rajesh Kumar v. State of Haryana 2005(3) SCT 512, it was held that mere non-mentioning of specific word 'act of gravest misconduct' will not vitiate the order of misconduct if on consideration of the facts, the nature of charges clearly show it to be a misconduct of such nature. In this case, unauthorized absence of 121 RSA No.4728 of 1999(O&M) 14 days of a policeman was held to be an act of gravest misconduct. It is well settled that wilful absence from duty is a misconduct and whether this misconduct is of gravest nature or not is a question of fact depending on facts of each case in the given circumstances. Even the absence from duty for one day amounts to gravest act of misconduct, if with the absence of that one day a great damage is caused to the interest of the State. It is also equally well settled that Courts cannot sit over the findings of the Enquiry 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. In this regard reliance could be placed on the judgment of the Supreme Court in the case of B.C. Chaturvedi v. Union of India (1995) 6 SCC 749 wherein it has held as under: “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of thecourt. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or concusion. But that findings must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as RSA No.4728 of 1999(O&M) 15 defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts