RSA No. 3876 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 3876 of 1997 Date of decision: 20.5.2009 State of Punjab and others … Appellants. Versus Paramjit Singh … Respondent Present: Mr. B.S. Sra, DAG Punjab, for the appellant-State. Mr. R.K. Malik, Sr.Advocate with Mr. Ashish Chaudhary, Advocate, for the respondent. … ARVIND KUMAR, J: The present appeal is by defendant-State of Punjab directed against the judgment and decree of the Courts below whereby the suit of the plaintiff for declaration has been decreed. As per the case of the plaintiff Paramjit Singh, he joined as Constable in the Punjab Police on 25.6.1985. Thereafter, he proceeded on two days' leave from 6.3.1990 and was to report back for duty on 9.3.1990 but he failed to do so. According to the plaintiff, this so happened since he had fallen sick owing to some problem in his spine and severe low back pain besides some mental problem, for which he had to get his leave extended. Plaintiff stated that he had been getting the treatment from Civil Hospital and Mental Hospital and was accordingly informing his department for the reason in not joining the duty but he was being marked absent. Ultimately, an enquiry was conducted against him and on conclusion thereof, order dated 15.9.1992 terminating his services was passed. Hence,the suit. Upon notice of the suit, defendants in their written statement defended their action in passing the impugned order of termination. Trial Court upon appreciation of evidence adduced on record, vide judgment and decree dated 7.10.1994 decreed the suit declaring that the termination order dated 15.9.1992 passed by the Senior Superintendent RSA No. 3876 of 1997 2 of Police, Hoshiarpur, dismissing the plaintiff from service is illlegal and void and he(plaintiff) continues to be in service as Constable as before 15.9.1992 as he would have been in the absence of the order of dismissal and is entitled to all the pay, powers and privileges of the post of constable without any break and further directing the defendants to reinstate the plaintiff in service as Constable with effect from the date of his dismissal and to pay him all back-wages. Feeling aggrieved, the defendants preferred an appeal which was dismissed by the lower appellate Court on 13.8.1997. Still aggrieved, the present second appeal was preferred by the defendants in this Court by way of present appeal, i.e. Regular Second Appeal No. 3876 of 1997 which vide judgment dated 5.2.2007 was allowed by this Court and consequently, the judgment and decree of the Courts below were set aside and suit of the plaintiff dismissed. Feeling aggrieved, the plaintiff preferred Special Leave Petition before the Hon'ble Supreme Court. However, the Hon'ble Supreme Court vide order dated 17.7.2008 passed in Civil Appeal No. 4620 of 2008 arising out of SLP(Civil) No. 3664 f 2007, has set aside the order of this Court and remanded the matter for deciding it afresh on merits after formulating a substantial question of law, within six months from the date of communication of the said order. Counsel for the parties have been heard. The question which arises for determination in this appeal is whether continued absence of the plaintiff-respondent, a constable in the Punjab Police, could be regarded as gravest act of misconduct within the meaning of Rule 16.2(1) of the Punjab Police Rules,1934 (for brevity, the Rules) and whether it is mandatory for the disciplinary Authority to look into the length of service and claim of pension at the time of awarding punishment. 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 RSA No. 3876 of 1997 3 offender and his claim to pension. The act of having remained absent from duty is not considered as “gravest misconduct” as it does not fall within the purview of Explanation appended to Rule 16.2 of the Rules. However, it definitely is an act which constitutes misconduct and the cumulative effect of such misconduct also makes a police officer unfit for police service. Respondent-plaintiff in the instant case had remained absent with effect from 9.3.1990 after having availed leave though he also remained absent during the course of enquiry due to which the enquiry was concluded ex-parte. However, there is no previous record of his having remained absent or indulging in any misconduct. Giving consideration to the length of service, the right to pension is inherent under Rule 16.2 itself and thus, it cannot be ignored. He though may have put in less than 5 years of service but as held in Mahipal Ex.constable v. State of Haryana 1994(4) SLR 311, mere non-entitlement of pension will not deprive the delinquent of consideration to the length of service by the Punishing Authority while awarding severest punishment of dismissal from service. The disciplinary Authority having failed to adhere to the rules while not taking into consideration the right to pension, length of service and incorrigibility, is certainly prejudicial to the interest of the delinquent i.e. respondent-plaintiff as it is settled law that when a relevant provision is given go by, it amounts to arbitrary exercise of power and therefore, the order of dismissal would not be sustainable. In this back-drop of the facts, the learned Courts below have rightly set aside the order of dismissal. The Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad v. B.Karunakar, 1993(6) Judgment Today SC-1, has observed that whenever the Court sets aside an order of punishment and orders reinstatement, the question whether the employee would be entitled to back-wages from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. In view of the above, the appeal is partly allowed and the judgment and decree of the Courts below is modified to the extent that the matter is remitted back to the disciplinary Authority with a direction to hold a fresh enquiry and to pass fresh orders keeping in view the rules referred to RSA No. 3876 of 1997 4 above, within three months from the date of receipt of certified copy of this judgment. The payment of arrears of salary and consequential benefits be kept in abeyance and be decided by the disciplinary Authority at the time of giving decision. The appeal stands disposed of accordingly. Parties to bear their own costs. May 20, 2009 ( ARVIND KUMAR ) JS JUDGE RSA No. 3876 of 1997 5 RSA No. 3876 of 1997 6